Leslie A. K. Joyce v. Ontario Racing Commission, 2014 CanLII 6713

COMMISSION HEARING TORONTO, ONTARIO – JANUARY 13, 2014

IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;

Leslie Joyce appealed against the penalty in Ruling Number SB 46106.

Date of Hearing: January 13, 2014

ORC Panel Members: Elmer Buchanan, Chair Anthony Williams, Vice Chair Sandra Meyrick, Commissioner

Representative for the Appellant: Brian Tropea, General Manager, Ontario Harness Horse Association

Counsel for the Administration: Jennifer Friedman

The Panel varied the penalty.

The Reasons for Decision is attached to this Notice.

DATED at Toronto this 20th day of February 2014.

Steven Lehman Executive Director

REASONS FOR DECISION

OVERVIEW

1Leslie A.K. Joyce, (“Joyce”) was the trainer of record for IM THE MAN, a standardbred racehorse.

2On May 15, 2013, the horse won the eighth race at Western Fair.

3A urine sample taken from the horse after the race resulted in a certificate of positive analysis of an official sample for the Class II drug Levamisole.

4On September 24, 2013, the track judges imposed, the following penalty:

(i) $2,500 fine; (ii) 1 year full suspension with 5 months stayed; (iii) upon reinstatement, 2 years probation upon conditions.

THE HEARING

5On January 13, 2014, the appeal was heard by a panel of the Ontario Racing Commission (“ORC”).

6The Administration called five witnesses:

(i) Charles Beirnes, Investigator, ORC; (ii) Marvin Burkhart (“Burkhart”), Farmer of sheep and occasional purveyor of buggy horses; (iii) Roy Chamberlain, Track Superintendent, Western Fair; (iv) Donald Lawrence, Senior Standardbred Judge; and (v) Adam Chambers, Doctor of Veterinary Medicine, Manager of Veterinary Services, ORC, and Research Manager for the Canadian Pari-Mutuel Agency at Jerseyville, Ontario.

7Tropea called one witness:

(i) Joyce, the Appellant.

THE EVIDENCE

The Acquisition of the Horse

8In the spring of 2013, Burkhart received IM THE MAN from Nick Fife, (“Fife”).

9Burkhart said that he gave an injectable de-wormer, orally, “once or twice” to the horse.

10Burkhart decided after a single “hook up” of IM THE MAN to a buggy, that the horse had a bleak future. Burkhart was eager to divest himself of this horse. (“As long as he goes out the lane, it doesn’t matter”).

11On April 22, 2013, Burkhart gave the horse away to Joyce.

State of Knowledge

12Joyce was aware that:

IM THE MAN was a racehorse, a trotter, (Joyce’s preference);
he was previously owned, trained and raced by Fife;
an attempt had been made by Fife to qualify the horse in April 2013;
that the horse was a “challenge”; and
Fife did not want him.

13Joyce gave evidence that:

the horse was “very skinny” and “rundown”;
its living conditions at the farm were “wet and dirty”, (“typical sheep farmer, cleans once a month”);
there were at least 300 sheep at the farm, (Burkhart said that on occasion he had as many as 1,500 sheep at the farm);
she soon discovered a “million worms in his (the horse’s) manure”;
she cared for the horse;
she began, in incremental fashion, to train him for the racetrack.

(her colourful expression following a training session: “Holy crap, what a nice horse!”

The Change in Circumstances

14On May 8, 2013, IM THE MAN successfully qualified at Mohawk.

15Horses that participate in qualifying races are not tested for prohibited drugs or substances.

16On May 9, 2013, the official “transfer date”, “Leslie A. K. Joyce of Acton, ON”, became the “current owner” of IM THE MAN in the records of Standardbred Canada.

The Race

17On May 15, 2013, Joyce was listed in the Western Fair racing program as both owner and trainer.

18The horse participated in Race 8, a one mile trot, for a purse of $5,000.

19IM THE MAN won the race.

The Scratch

20The horse was entered to race again on May 27, 2013. Prior to the race, Joyce was told of the positive test result from the earlier race.

IM THE MAN was then scratched by the track judges. .
Joyce said “It was the worst day of my life.”

THE THREE ISSUES

I THE RULE

21Does the Rule, the “trainer responsibility rule” (“the Rule”), Rule 26.02.01 of the Rules of Standardbred Racing (“the Rules”), apply to a positive test, when the prohibited drug may have been acquired by the racehorse before the licensee became trainer of record?

II DUE DILIGENCE

22Did the licensee establish due diligence?

III THE PENALTY

23What is the appropriate penalty?

ISSUE I

THE RULE

24Does the Rule apply to a positive test where the prohibited drug may have been acquired by the racehorse before the licensee became trainer of record?

The Precedents

25“Performance enhancing drugs cast an executioner’s shadow across horse and industry …..”

Dennis (Jerry) Moffatt v. ORC, March 19, 2008, RULING NUMBER COM SB 005/2008, p. 12, para 59.

26“The trainer responsibility rule is the foundation upon which racing integrity rests.” Brad Shakes v. ORC, November 27, 2012, RULING NUMBER COM SB 031/2012, Factum of the Administration, Ex. 1, Tab C, at p.6, para 33.

27“… the absolute liability rule, while harsh, is reasonably justified in the public interest to protect horse racing …” Shakes v Ontario Racing Commission, 2013 ONSC 4229 at p. 7, para 35

The Rules

(a) Five Obligations of Trainers

Rule 26.02.01

28(i) the “trainer shall be responsible at all times for the condition of all horses trained by him/her;

(ii) (a) the trainer must “safeguard” each horse “from tampering”; and

` (b) guard the horse “from time of entry to race until the conclusion of the race.”

(iii) the trainer has a duty not to “start” the horse if the trainer “knows” or “… might know or have cause to believe” the horse is not “… fit …or has received any drug that could result in a positive drug test.”;

(iv) the trainer must guard against any unauthorized person “obtaining access … to the horse and administering any drug or other substance resulting in a … positive test.”; and

(v) the trainer must protect the horse “against wrongful interference or substitution by anyone in connection with the taking of an official sample.”

(b) Absolute Liability for Positive Tests

Rule 26.02.03

29“Notwithstanding 26.02.01, the Commission … shall consider the following to be absolute liability offences:

(c) any trainer whose horse … tests positive resulting from testing in accordance with or under the Pari-Mutuel Betting Regulations; …”

Analysis

30(i) A decision as to the reach of the Rule requires consideration of its ordinary meaning and intent.

(ii) The Rule is the foundation of racing integrity.

(iii) The purpose of the Rule is the protection of horse racing from performance enhancing drugs.

(iv) The absolute liability standard provides an effective method of enforcement.

(v) The five complementary obligations placed upon trainers when read in conjunction with the absolute liability standard require the trainer of record to be responsible for his/her racehorses at all times.

(vi) The restriction of the Rule to only those positive tests where the prohibited drug was acquired by the racehorse after the licensee became trainer of record would undermine the purpose and the enforcement of the Rule and would compromise the duty of the Commission to protect racing integrity.

The Decision

31The Rule applies to all positive test results.

ISSUE II

DUE DILIGENCE

The Law

Did the licensee establish due diligence?

32If Joyce establishes due diligence, the penalty will be limited “to a fine, described as ‘non-oppressive’ in amount, and no suspension.” Shakes v. Ontario Racing Commission, 2013, ONSC 4229, August 2013, at p. 7, para 35

What is due diligence?

33Joyce must prove that she “took reasonable care”. R. v. Sault Ste. Marie 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299 at para 67

34Joyce bears the burden of proof on this issue.

35The standard of proof “is a balance of probabilities.” F.H. McDougall, October 2, 2008, S.C.C. at p. 13, para 40

What is Reasonable?

36“What is reasonable depends on the circumstances.

Did that response (the response of the licensee) constitute ‘all reasonable care’ with the emphasis on ‘all’?” Dennis (Jerry) Moffatt v. ORC, January 30, 2008, RULING NUMBER COM SB 008/2008 at p. 10, para 50

Analysis

37It is common knowledge that multiple drugs and substances exist which have elimination times of more than 23 days that could result in a positive test.

38It was not known, a least until the qualifier, whether or not IM THE MAN would again be capable of entry into an official race.

39The absence of inquiries by Joyce, of either Fife or Burkhart, between April 22, 2013 and May 8, 2013, was reasonable.

40Once the horse qualified and was entered to race at Western Fair, the duty of care for Joyce, now both owner and trainer, escalated.

41Joyce asked no questions before the race, of either:

(i) Fife or (ii) Burkhart as to the history of IM THE MAN.

No questions were put by Joyce or any other person on her behalf, as to:

(a) the health of the horse; (b) prior injuries; (c) previous veterinarians; (d) history of medications; (e) treatment records, or, of particular significance, (f) whether any drug or substance had been administered to the horse that was capable of resulting in a positive test.

No questions were apparently ever asked of Fife. No questions were asked of Burkhart until May 27, 2013, after the positive test result.

The Decision

42Joyce did not make reasonable inquiries as to the provenance of the horse;

43Joyce did not take reasonable care to protect the horse from a positive test result. Joyce did not establish due diligence.

ISSUE III

PENALTY

44What is the appropriate penalty?

THE EVIDENCE

45The Licensee

Joyce became infatuated with horses at 11 or 12 years of age,
she is now 33;
she has been a trainer for 17 years;
she has 6 horses: 2 colts; a broodmare, a miniature, a horse (with a broken leg) and

IM THE MAN, described now as “beautiful … and overweight”, (and very successful following 90 days of ineligibility);

she rents stables for $2,000 to- $2,500 per month;
she described herself as “a single mom. I have kids (two) to support and this (horse racing) is my (sole) form of income. I race horses to pay my bills; on top I do catch paddocks…” Notice of Appeal, September 30, 2013, Book of Documents, Ex. 3, Tab 10, at p. 68;
“I do have a boyfriend and he works.”;
as of November 19, 2013, her trainer history was as follows:

LIFE: STARTS: 597 U.D.R.S: 0.196 MONEY: $192,052

Factum, of the Appellant; Records of Standardbred Canada, Ex. 2

46Mandatory Sanctions

IM THE MAN was declared ineligible to race for 90 days, Ruling SB 45196, Rule 11.10.01 (2) and 20.01.01 (2);
the purse was ordered redistributed, Rule 9.13;
the trainer/driver fees were ordered redistributed, ORC Rule 18.08.01;
horses owned in whole or in part, by Joyce were suspended, ORC Rule 6.13.01; and
horses trained by Joyce were permitted to be released to the care of another trainer, approved by the Judges, Rule 26.08.

47Penalty Guidelines

(a) A first offence for a Class II drug has a suggested penalty of a fine of $5,000 and a full licence suspension range of between 1 year and 5 years. (b) On a first offence, the Commission … may … impose a penalty … below the range in appropriate circumstances … " Penalty Guidelines for Equine Drug … Offences, Policy Directive No. 1-2008, January 23, 2008, Book of Documents, Ex. 3, Tab 2, p. 3

48Aggravating Factors

Levamisole is a Class II prohibited drug;
the drug has the potential to enhance the performance of a racehorse;
the drug also has the potential to cause adverse side effects to a racehorse;
Joyce did not make reasonable inquiries as to the provenance of the horse.

49Mitigating Factors

this is the first and only positive test for Joyce in 17 years as a trainer;
she had no intention to obtain an unfair advantage in the race;
Joyce had no actual knowledge of the presence of the prohibited drug in the horse at the time of the race;
the mandatory sanctions (five) have already had a substantial impact;
Joyce provided full cooperation during the investigation, (both interview and search), at the track judges’ hearing and at the Commission hearing.

50Penalty - Decision

The Penalty imposed by the track judges, based upon the evidence before them, was fair and balanced. However, this is a fresh hearing. Based upon the evidence before us, including the nature of the offence, (the failure to question the provenance of the racehorse), and the circumstances of the offender, the panel finds that a penalty below the Guidelines is appropriate. The panel allows the appeal in part only, as to penalty.

51Penalty - Result

(a) $1,500 fine; (b) 1 year full suspension. One month has been served; eleven months are subject to a conditional stay. If Joyce, as a trainer, is responsible for a further Class I, II or III positive test during the stay period, the remnant of the suspension outstanding at the time of the positive test will be treated as consecutive to any other suspension that may be imposed for the positive test; (c) 2 years of probation on reinstatement upon the 5 conditions contained in Ruling SB 45186.

DATED at Toronto, Ontario, this 20th day of February 2014.

Elmer Buchanan Anthony Williams Chair Vice Chair