RULING NUMBER COM SB 012/2015
COMMISSION HEARING TORONTO, ONTARIO – MAY 11, 2015
NOTICE OF DECISION
IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF THE APPEALS BY
JEFF DURHAM, RON MACLEAN, JUSTIN ROBSON AND ED HAYTER
Date of Hearing: May 11, 2015
ORC Panel: Elmer Buchanan, Chair
Anthony Williams, Vice Chair
Justin Fogarty, Commissioner
Counsel for the Appellants: Robert Burgess
Counsel for the Administration: Brendan Van Niejenhuis and Carlo Di Carlo
Decision:
The Appeals are allowed in part against penalty.
The Panel’s Reasons for Decision is attached to this Notice.
DATED at Toronto this 16th day of July 2015.
______________________________
Jean Major
Executive Director
REASONS FOR DECISION
SUMMARY
This hearing involved four appeals.
The Brief Summary of Relevant Facts from the Administration is set out below:
A. Appeal and request for hearing of Jeff Durham
- Jeff Durham (“DURHAM”) is licensed (licence #P9245) with the Ontario Racing Commission (“ORC”) as an owner/trainer.
On June 9, 2014, the horse WINDSUN REVENGE (freeze brand number 1JM16) participated in the 8th race at Mohawk Raceway and finished 2nd.
At all material times, DURHAM was the trainer for WINDSUN REVENGE.
Following the race, the Judges selected WINDSUN REVENGE to provide a urine sample for testing. The samples were sent to Maxxam for analysis.
On June 18, 2014, Maxxam issued a Certificate of Positive Analysis of an Official Sample for WINDSUN REVENGE for Isoxsuprine, a Class IV drug.
On June 27, 2014, the Judges issued Ruling Number SB 46048, wherein DURHAM was fined $1,000.00 and suspended for 15 days (July 4, 2014 to July 18, 2014, inclusive) for violation of Rules 9.09(a) and (b), 26.02.01, 26.02.02 and 26.02.03(c) of the Standardbred Racing Rules (“SB Rules”). Pursuant to SB Rules 9.13 and 18.08.01, the Judges also ordered that all purse monies and driver fees earned be returned and re-distributed.
Pursuant to Policy Directive No. 1-2008, the range enumerated in the Penalties Guideline for a first offence for a Class IV positive is 15-75 days and a $1,000.00 fine. Therefore, both the duration of the suspension and the amount of the fine are in accordance with the minimums recommended by the Guidelines.
On June 27, 2014, DURHAM filed a Notice of Appeal to Ruling Number SB 46048 and requested a stay.
B. Appeal and request for hearing of Ron Maclean
Ron Maclean (“MACLEAN”) is licensed (licence #0114X8) with the ORC as a trainer.
On May 17, 2013, the horse ZORGWIJK NOVA (freeze brand number 2HR70) participated in the 3rd race at Woodbine Raceway, which was the elimination round of the Standardbred Breeders of Ontario Association (“SBOA”) Stake Eliminations. ZORGWIJK NOVA finished 1st and advanced to the SBOA final.
At all material times, MACLEAN was the trainer for ZORGWIJK NOVA.
Following the race, the Judges selected ZORGWIJK NOVA to provide a urine sample for testing. The samples were sent to Maxxam for analysis.
On May 24, 2013, ZORGWIJK NOVA participated in the 3rd race at Mohawk Raceway, which was the SBOA final. ZORGWIJK NOVA finished fifth in this race.
On May 28, 2013, Maxxam issued a Certificate of Positive Analysis of an Official Sample for ZORGWIJK NOVA for Isoxsuprine, a Class IV drug.
On May 8, 2014, the Judges issued Ruling Number SB 46030, wherein MACLEAN was fined $1,000.00 and suspended for 15 days (May 15, 2014 to May 29, 2014, inclusive) for violation of Rules 9.09(a) and (b), 26.02.01, 26.02.02 and 26.02.03 of the SB Rules. Pursuant to SB Rules 9.13 and 18.08.01, the Judges also ordered that all purse monies and driver fees earned from the May 17th race be returned and re-distributed.
Pursuant to Policy Directive No. 1-2008, the range enumerated in the Penalties Guideline for a first offence for a Class IV positive is 15-75 days and a $1,000.00 fine. Therefore, both the duration of the suspension and the amount of the fine are in accordance with the minimums recommended by the Guidelines.
Also on May 8, 2014, the Judges issued Ruling Number SB 45876, wherein because of the positive test relating to the May 17th race at Woodbine Raceway:
(a) ZORGWIJK NOVA was deemed ineligible to race in the May 24th SBOA final; and
(b) purse monies earned by ZORGWIJK NOVA in this race were ordered returned and redistributed.
On May 9, 2014, MACLEAN filed a Notice of Appeal to Ruling Numbers SB 46030 and SB 45876. He also requested a stay of both rulings.
On May 12, 2014, the Deputy Director issued Ruling Number SB 20/2014, wherein he granted MACLEAN a stay until such time as the appeals in SB 46030 and SB 45876 are heard, pursuant to Rule 24.06.
On April 16, 2015, a Notice of Hearing was issued to inform the parties that a Panel of the ORC would be convening on May 11, 2015 for the purpose of hearing MACLEAN’s appeals.
C. Appeal and request for hearing of Justin Robson
Justin Robson (“ROBSON”) is licensed (licence #Y04864) with the ORC as a Driver/Trainer/Owner.
On January 23, 2013, the horse MAJESTIC MAX (freeze brand number 3GN61) participated in the 7th race at Flamboro Downs and finished 2nd.
At all material times, ROBSON was the trainer for MAJESTIC MAX.
Following the race, the Judges selected MAJESTIC MAX to provide a urine sample for testing. The samples were sent to Maxxam for analysis.
On January 30, 2013, Maxxam issued a Certificate of Positive Analysis of an Official Sample for MAJESTIC MAX for Isoxsuprine, a Class IV drug.
On June 6, 2014, the Judges issued Ruling Number SB 46312, wherein ROBSON was fined $2,000.00 ($1,250 of that amount was stayed) and suspended for 30 days (23 days of which were stayed, the remaining 7 day suspension to run from June 17, 2014 to June 23, 2014, inclusive) for violation of Rules 9.09(a) and (b), 26.02.01, 26.02.02 and 26.02.03(c) of the SB Rules. Pursuant to SB Rules 9.13 and 18.08.01, the Judges also ordered that all purse monies and driver fees earned be returned and re-distributed.
This was ROBSON’s second positive test in the last three years. In November 2012, ROBSON was suspended for 7 days as a result of a positive test for a Class V drug.
Pursuant to Policy Directive No. 1-2008, the range enumerated in the Penalties Guideline for a second offence for a Class IV positive is 30-150 days and a $2,000.00 fine. Therefore, both the duration of the suspension and the amount of the fine are in accordance with the minimums recommended by the Guidelines.
Also on June 6, 2014, the Judges issued Ruling Number SB 46313 wherein pursuant to Policy Directive No. 3-2008 they issued the following terms to the licence of ROBSON for a two year period (18 months of which were stayed, the remaining 6 months running from June 24, 2014 to December 23, 2014):
The Licensee shall keep the peace and be of good behavior.
The Licensee shall allow commission investigators access to his or her stabling area at any time to conduct random searches.
The Licensee shall allow the seizures or illegal or non-therapeutic drugs, medications.
The Licensee shall be subject to the Commission’s Out of Competition Program.
The Licensee may be subject to a Notice of Proposed Order in addition to any penalty imposed by the Judges for any breach of the terms of their licence.
On June 9, 2014, ROBSON filed a Notice of Appeal to Ruling Numbers SB 46312 and SB 46313 and requested a stay.
On June 16, 2014, the Executive Director issued Ruling Number SB 30/2014, wherein he granted ROBSON a stay of Ruling Numbers SB 46312 and SB 46313 until such time as these appeals are heard, pursuant to Rule 24.06.
On April 16, 2015, a Notice of Hearing was issued to inform the parties that a Panel of the ORC would be convening on May 11, 2015 for the purpose of hearing ROBSON’s appeal.
D. Appeal and request for hearing of Ed Hayter
V. Edward Hayter ("HAYTER") is licensed (licence #J79473) with the ORC as a Trainer.
On April 12, 2014, the horse OZZY OZZY (freeze brand number 8HL69) participated in the 2nd race at Woodbine Raceway and finished1st.
At all material times, HAYTER was the trainer for OZZY OZZY.
Following the race, the Judges selected OZZY OZZY to provide a urine sample for testing. The samples were sent to Maxxam for analysis.
On April 23, 2014, Maxxam issued a Certificate of Positive Analysis of an Official Sample for OZZY OZZY for Isoxsuprine, a Class IV drug.
On April 28, 2014, the Judges issued Ruling Number SB 46151, wherein HAYTER was fined $1,000.00 and suspended for 15 days (May 4, 2014 to May 18, 2014, inclusive) for violation of Rules 9.09(b), 26.02.01, 26.02.02 and 26.02.03(c) of the SB Rules. Pursuant to SB Rules 9.13 and 18.08.01, the Judges also ordered that all purse monies and driver fees earned be returned and re-distributed.
Pursuant to Policy Directive No. 1-2008, the range enumerated in the Penalties Guideline for a first offence for a Class IV positive is 15-75 days and a $1,000.00 fine. Therefore, both the duration of the suspension and the amount of the fine are in accordance with the minimums recommended by the Guidelines.
On April 28, 2014, HAYTER filed a Notice of Appeal to Ruling Number SB 46151 and requested a stay.
On May 1, 2014, the Deputy Director issued Ruling Number SB 19/2014, wherein he granted HAYTER a stay until such time as the appeal is heard, pursuant to Rule 24.06.
On April 16, 2015, a Notice of Hearing was issued to inform the parties that a Panel of the ORC would be convening on May 11, 2015 for the purpose of hearing HAYTER's appeal.
THE HEARING
- On May 11, 2015, the Appeals were heard by a panel of the ORC.
The four appeals were combined, on consent of the parties, pursuant to Rule 10.1 of the Rules of Procedure.
Counsel for the Appellants made two admissions:
(i) each trainer entered a horse in a race that had been administered a drug which resulted in a positive test;
(ii) the positive test result was an absolute liability offence.
Counsel for the Administration called four witnesses:
(i) Adam Chambers, B.V.M.S., Manager, Veterinary Services, CPMA and ORC
(ii) Thomas Peter Miller, Senior Standardbred Judge, ORC
(iii) Donald Lawrence, Senior Standardbred Judge, ORC
(iv) Larry Hughes, Standardbred Judge, ORC
Counsel for the Appellants called four witnesses:
(i) Jeff Durham, Owner and Trainer
(ii) Ron MacLean, Trainer
(iii) Justin Robson, Driver, Trainer and Owner
(iv) Ed Hayter, Trainer
Nine exhibits were entered into evidence:
Ex. 1 Durham, Book of Documents, Administration
Ex. 2 Hayter, Book of Documents, Administration
Ex. 3 MacLean, Book of Documents, Administration
Ex. 4 Robson, Book of Documents, Administration
Ex. 5 Factum, Administration
Ex. 6 Factum, Appellants
Ex. 7 Professional Qualifications of Adam Chambers, Administration
Ex. 8 Compounded Medication Memorandum (CPMA), Administration
Ex. 9 Schedule of Drugs 2011, (CPMA) Administration
Ten written submissions were received following the hearing.
Ex. A Administration, May 13, 2015
Ex. B Hayter, May 14, 2015
Ex. C Appellants, May 18, 2015
Ex. D McLean, May 18, 2015
Ex. E Durham, May 19, 2015
Ex. F Administration, May 21, 2015
Ex. G Appellants, May 22, 2015
Ex. H Hayter, May 22, 2015
Ex. I Appellants, June 22, 2015
Ex. J Administration, June 25, 2015
THE EVIDENCE
- Adam Chambers (“Chambers”)
Chambers was qualified as an expert witness in veterinary medicine and in the elimination of Isoxsuprine.
Chambers described Isoxsuprine as designated as a Class IV drug by the Association of Racing Commissioners International Inc. (“ARCI”)
“The ranking of drugs is based on their pharmacology, their ability to influence the outcome of a race, whether or not they have legitimate therapeutic uses in the racing horse, or other evidence that they may be used improperly”.
ARCI, Uniform Classification Guidelines of Foreign Substances
Chambers described Isoxsuprine as a vasodilator medication which is commonly used as an oral preparation for foot problems such as caudal heel syndrome, commonly referred to as a navicular disease.
It was available as a pharmaceutical product in Canada as recently as the 1990’s.
It is no longer licensed for use in Canada.
The guideline for withdrawal is 36 hours.
The time was based on the brand name pharmaceutical product ‘vasodilan’ and is usable under the same conditions.
The method for detection and confirmation of Isoxsuprine by the CPMA has not changed since November 2010. The guideline was not based on data from a compounded medication.
Isoxsuprine remains available from compounding pharmacies.
“The compounding of drugs is an accepted veterinary practice and when properly prescribed, created and administered, they can be an appropriate effective treatment for your horse.”
Ex. 8
Chambers said that compounded drugs are not subject to the governmental testing process nor do they have a Drug Identification Number as having been approved for sale in Canada.
“Compounded drugs differ from pharmacy to pharmacy.”
“We (the CPMA) cannot test every single compounded drug on the market.”
He also described “the inter-batch variability as being greater for compounded pharmaceutical products” and that “there is increased risk for various things (not) being correct.”
Chambers introduced the guidelines from the Ontario College of Veterinarians 2007 re: Compounded Drugs.
“The veterinarian is responsible for determining appropriate withdrawal times (of compounded drugs) for performance animals.”
“Veterinarians must document that clients have provided consent for the use of a compounded drug that is dispensed by the owner.”
“Informed consent includes understanding that:
(a) The drug is not approved (i.e., has not gone through the rigorous and thorough approval process);
(b) The efficacy of the drug is not generally known.”
Chambers referred to the three part warning in the CPMA Schedule of Drugs:
(i) Blanket Disclaimer
“The information on drug excretion rates does not constitute and is not a warranty, guarantee or assurance, undertaking or anything similar that the results of the use of any of the drugs in the manner set out will be as stated.
Agriculture and Agri-Food Canada is not responsible for results differing in any way from the results stated herein.”
(ii) Re-affirmation of Trainer Responsibility Rule
“Use of information in this booklet does not relieve or lessen any trainer’s responsibility for assuring that, during a horse race, a horse is free from any drug listed in the Schedule to the Pari-Mutuel Betting Supervision Regulations and for complying with the provisions of the Regulations and provincial racing rules.”
(iii) Consultation with Veterinarian Advised
“… trainers … are strongly advised to consult their own veterinarian for advice and guidance in the use of all drugs.”
The Appellants
- Durham, MacLean, Robson and Hayter shared common factors in their evidence.
licensee in good standing with the ORC
trainer of standardbred racehorses
trainer of record for a racehorse which suffered from foot/heel problems
consulted his own veterinarian for advice
veterinarian examined the racehorse
unsuccessful attempts were made to resolve the problem, without the use of medication
further consultation with the veterinarian for advice and guidance
veterinarian prescribed Isoxsuprine
Isoxsuprine was administered by the trainer
trainer followed the advice of the veterinarian as to withdrawal time prior to the race
racehorse suffered a positive test result for Isoxsuprine
Durham consulted Kelli Gilson, D.V.M.
Durham, following his veterinarian’s advice, used a withdrawal time of 76 hours.
Durham said:
“The book was very misleading to myself and my vet.”
Isoxsuprine “should be taken out of the drug book.”
“There should be no withdrawal time.”
“The bottle said 36 hours.”
“I labelled up.”
“I would have tried other things.”
MacLean consulted Wayne Carroll, D.V.M
MacLean, following his veterinarian’s advice, used a withdrawal time of 63.5 hours
MacLean said that he asked his veterinarian, “Are you sure about this?”
The answer: “I’ll double check.”
“Innocent people like me, we don’t know that we’re playing with fire.”
MacLean said he later spoke to Chambers by telephone on May 3, 2014.
MacLean described Chambers as stating:
that Isoxsuprine was a “problem drug”
and further
that it was one of “five or six that shouldn’t even be in the drug book”
(Chambers was not asked about this conversation nor was he recalled as a witness)
Robson consulted John Flanigan, D.V.M.
Robson, following his veterinarian’s advice, used a withdrawal time of 56 hours.
Hayter consulted Shaun Baines, D.V.M.
Hayter, following his veterinarian’s advice, used a withdrawal time of 70 hours.
Hayter said that his veterinarian “had used it before” (the compounding pharmacy).
Hayter “used half the dose and half the time” (understood to be half the dose and double the time).
Hayter believed that both he and his veterinarian had been “over cautious and over careful.”
- THE ISSUES
ENTRAPMENT
OFFICIALLY INDUCED ERROR
DUE DILIGENCE
WAIVER
PENALTY
- ENTRAPMENT
Position of the Appellants
“For the CPMA to leave it in the Booklet with a recommended 36 hours withdrawal time for Isoxsuprine invites a charge of entrapment.” Ex. C
Entrapment occurs when:
(a) the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry, and,
(ii) although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence.
The burden of proof for the defence of entrapment is upon the proponent on a balance of probabilities.
If the defence is made out the appropriate remedy is a stay of proceedings, not an acquittal.
R. v. Mack, 1988 CanLII 24 (SCC), [1988] 2 S.C.R. 903
There was no evidence presented in support of the defence of entrapment.
- OFFICIALLY INDUCED ERROR
“The defence of “officially induced error” is available as a defence to an alleged violation of a regulatory statute where an accused has reasonably relied upon the erroneous legal opinion or advice of an official who is responsible for the administration or enforcement of the particular law.
In order for the accused to successfully raise this defence he must show that he relied upon the erroneous legal opinion of the official and that his reliance was reasonable.”
R. v. Cancoil Thermal Corp., 1986 CanLII 154 (ON CA), [1986] O.J. No. 290 (O.C.A)
This defence requires that five conditions be met:
(i) the Appellant must establish that he made an error of law;
(ii) that he considered his legal position;
(iii) that he consulted an appropriate official;
(iv) that he obtained reasonable advice; and
(v) that he relied upon that advice in his actions.
R. v. Thompson, 1995 CanLII 85 (SCC), [1995] 4 S.C.R. 55 at para 26 (S.C.C.)
This burden of proof for this defence rests upon the Appellants, upon a balance of probabilities.
If established, this defence will lead to a stay of proceedings.
After the hearing, Hayter wrote:
“… when asked by our veterinarian Dr. Shaun Baines if there were supplemental guidelines to the use of compounded Isoxsuprine, Dr. Chambers responded ‘just use the guidelines as written’. (see Dr. Baines’ correspondence notes …)”
During the hearing, no questions were asked of Chambers about this conversation.
No evidence was provided by Hayter.
No testimony, affidavit, statutory declaration or statement or consent, was provided for Dr. Baines.
No “correspondence notes” were presented.
No veterinary records were produced.
There was no evidence before the panel in support of the defence of officially induced error.
- DUE DILIGENCE
Positions of the Parties
Appellants
- “The positive tests sustained by horses trained by each of the four appellant trainers herein did not result from any improper conduct on the trainers’ part.”
- “They did nothing wrong.”
Administration
The Appellants did not meet “the objective standard under which the conduct of the accused (is assessed) against that of a reasonable person in similar circumstances.”
“The Appellants had the capacity to inform themselves more fully” of the dangers of compounded medicines.
The Appellants did not provide the Panel with “sufficient evidence to demonstrate that they exercised due diligence in relation to the administration of the drug in question, to justify a finding of due diligence. At most, the Panel heard evidence of due diligence that occurred after the administration of the Isoxsuprine.”
What is Due Diligence?
The Appellants must prove that they “took all reasonable care”.
R. v. Sault Ste. Marie 1978 (S.C.C.) 40 c.c.c. 2d, 353 a p. 374
The Burden of Proof
The Appellants bear the burden of proof on this issue
The Standard of Proof
The standard of proof is “on a balance of probabilities.”
F.H. v. McDougall, 2008 SCC 53, 2008 S.C.C. 53 at para 40
Assessment
“It must not be forgotten that the standard to be applied in assessing due diligence is that of the reasonable person in like circumstances, not one of perfection upon recognition of a problem.”
As said Hill J. in Canadian Tire, supra, at para 85, ‘In assessing the efficacy of a due diligence defence, the court must guard against the correcting, but at times distorting, influences of hindsight’. In considering the defendant’s efforts, the court ‘does not look for perfection.’
(R. v. Safety Kleen Canada Ltd. (1977), 114 c.c.c. (3d) 214 (Ont. C.A., at 224)
nor some ‘superhuman effort’ on the defendant’s part (R. v. Courtaulds) Fibres Canada (1992), 76 c.c.c (3rd) 68 (Ont. Prov. Ct.) at 77)
If the facts suggest a discoverable causative flaw ‘could readily’ have been remedied, due diligence will fail: R. v. Rio Algon Ltd., supra at 249,252.”
Liat Podolsky (‘EcoJustice’) v. Cadillac Fairview Corp. et al, O.C.J., February 11, 2013, Green J., Reasons for Judgment at p. 45, para 93
The Decision
The panel made the following findings for Durham, MacLean, Robson and Hayter:
the racehorse under the trainer’s care suffered from a health issue
the trainer sought the advice of his veterinarian
the horse was examined by the veterinarian
a plan of care was implemented on the advice of the veterinarian
the plan was unsuccessful
the trainer sought the further advice of his veterinarian
the veterinarian prescribed Isoxsuprine, a Class IV drug
the drug was available from compounding pharmacies only
the trainer knew, or ought to have known, following consultation with his own veterinarian, that there were potential risks in the administration of a Class IV compounded medication to a racehorse
the veterinarian, following a review of the CPMA Schedule of Drugs 2011, attempted to determine a safe withdrawal time for the compounded medication
the trainer administered the drug, in accordance with the instructions of his veterinarian
the trainer administered the drug to his racehorse for a therapeutic purpose
the trainer administered the drug in good faith, with no intention to gain an advantage or “edge” in a race
Each Appellant met the objective standard under which his conduct was assessed against that of a reasonable person, in like circumstances.
Each Appellant met the burden of proof upon him, to establish, on a balance of probabilities, the defence of due diligence, in that he took reasonable care, in view of all the circumstances, to avoid a positive test for his racehorse.
- WAIVER
The Positions of the Parties
Appellants
“The unacceptable errors and conduct by the CPMA (Canada’s formal drug testing administration) included the current failure to establish appropriate Isoxsuprine withdrawal times.”
“Another unacceptable CPMA error resulted from the CPMA’s failure to publish the results of their own internal 4 horse study on Isoxsuprine conducted in 2014/2015 that would have justified an appropriate withdrawal time for Isoxsuprine of at least 100 hours (in lieu of the current withdrawal time of this drug of 36 hours). The CPMA and the ORC are therefore, in my view, estopped in law from continuing to prosecute these four trainers who innocently relied upon unreliable CPMA data to their detriment.”
Administration
“The Commission has an overarching objective to protect the public interest.”
“The absolute liability standard for positive drug tests is necessary to protect the public interest.”
Waiver of breaches would undermine the absolute liability regime.
“Waiver … would establish a precedent that will lead to further petitions for waiver that will in turn obstruct the regulatory system the Commission was concerned to protect in Shakes.”
SB Rule 1.09
The Commission, “in its absolute discretion may waive the breach to any of the rules, which waiver or breach the Commission does not consider prejudicial to the best interests of racing.”
The Burden of Proof
The burden of proof is upon the Appellants to establish that a waiver of breach of the positive test rule is not prejudicial to the best interests of racing.
Precedents
“The Trainer Responsibility Rule
“The trainer responsibility rule is the foundation upon which racing integrity rests.”
Brad Shakes v. ORC, March 19, 2012, Ruling Number COM SB 031/2012 at p. 6, para 33
The Danger of Performance Enhancing Drugs
“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, at p. 12, para 59
The Absolute Liability Standard
“…the absolute liability rule, while harsh, is reasonably justified in the public interest to protect horse racing….”
Brad Shakes v. ORC, August 20, 2013, ONSC 4229, at p. 7, para 35
Restricted Use of SB Rule 1.09
“There may be extraordinary circumstances where the waiver of a breach (of a Rule) may be advised.
Limitations
There were limitations in the evidence
No testimony was provided from any veterinarian consulted by an Appellant.
No affidavit, statutory declaration, or statement on consent from any veterinarian was provided.
No statutory declaration or statement from any veterinarian licensee was submitted, pursuant to SB Rule 6.28.
No documents were introduced from any veterinarian as to the prescription issued, the preparation of the medication, the sources consulted, the determination of the withdrawal time, the advice provided, or any waiver or consent form.
No document was submitted pursuant to SB Rule 6.28.
None of the four compounding pharmacy representatives testified.
No affidavit, statutory declaration or statement or consent, was introduced.
No documents were introduced from a compounding pharmacy as to the preparation of the drug (with the exception of Hayter).
No questions were asked of Chambers as to the continued presence of Isoxsuprine in the booklet.
No questions were asked of Chambers as to the absence of any caution as to the use compounded medication in the booklet;
No questions were asked of Chambers as to the “current failure by the CPMA, to establish Isoxsuprine withdrawal times.” Chambers did say that “We cannot test every single compounded drug on the market.”
No questions were asked of Chambers as to the detection of Isoxsuprine for as long as six weeks after administration of the drug; in the published study from the Gluck Equine Research Centre, University of Kentucky, 2004.
Internal Study
In May 2014, the CPMA conducted an administrative study of Isoxsuprine obtained from a Canadian compounding pharmacy (unnamed).
The results of the study led to the May 29, 2014, cautionary memorandum on compounded medication (Ex. 8).
This study did not have the potential to impact Robson, race date January 23, 2013;
MacLean, race date May 12, 2013; or
Hayter, race date April 12, 2014.
This study did have the potential to impact Durham, race date June 9, 2014.
Chambers was not asked why this study did not lead to a cautionary memorandum on Isoxsuprine.
No evidence was presented as to whether a cautionary memorandum was appropriate.
No evidence was presented either from the veterinarian of Durham, or from the compounding pharmacy which prepared the medication for his horse.
In the absence of any evidence as to the impact, if any, that the release of particulars of the Isoxsuprine study may have had upon the veterinarian or the compounding pharmacy, there is an insufficient foundation upon which to justify a waiver of the breach of the absolute liability positive test regime.
- PENALTY
Durham, MacLean, Robson and Hayter established due diligence.
What are the appropriate penalties?
The Decision
(i) Mandatory Sanctions
(a) the horse was declared disqualified
SB Rule 9.13
(b) the purse was ordered redistributed
SB 9.13
(c) the driver/trainer fees were ordered to be returned
SB 18.8.01
(ii) Discretionary Sanctions
(a) a first offence for a Class IV drug has a suggested penalty of a fine of $1,000 and a full licence suspension range of between 15 and 75 days;
(b) a second offence for a Class IV drug has a suggested penalty of a fine of $2,000 and a full licence suspension range of between 30 and 15 days.
Penalty Guidelines of Equine … Drug Offences, Directive No. 1 – 2008
(c) Terms
“… the Director may issue terms to a licence for a two-year period for:
“any Licensee whose horse has tested positive for a Class IV or V drug and the offence is a second offence or more for the Licensee within three years where the penalty issued is 60 days or more.”
Licensing Terms Guidelines for Positive Test … Violations
ORC Policy Directive No. 3 – 2008
The penalties imposed upon each of the four Appellants, by the Judges, followed a careful consideration of relevant factors.
The penalties imposed were appropriate.
In this fresh hearing, the panel was persuaded, on a balance of probabilities, that each Appellant exercised due diligence in the administration of the medication which resulted in a positive test.
When a licensee establishes due diligence, the penalty must be limited to:
(i) a fine, described as “non-oppressive” in amount;
and
(ii) no suspension
Shakes v. Ontario Racing Commission 2013 ONSC 4229 at p.7, para 35
The penalties imposed are as follows:
A. Jeff Durham
The panel allowed the appeal in part as to penalty, in SB Ruling 46048.
The Result:
(i) $100 fine
and
(ii) no suspension
B. Ron MacLean
(a) The panel allowed the appeal, in part, as to penalty, in SB Ruling 46030.
The Result:
(i) $100 fine
and
(ii) no suspension
(b) The panel denied the appeal against SB Ruling 45876.
The disqualification of the horse in the elimination race rendered the horse ineligible for the final.
C. Justin Robson
(a) The panel allowed the appeal, in part, as to penalty, in SB Ruling 46312.
The Result:
(i) $100 fine
and
(ii) no suspension
(b) The panel allowed the appeal against the terms issued to licence, in SB Ruling 46313.
Two conditions precedent must exist prior to use of Licensing Terms Guidelines:
commission of a second offence within three years;
a penalty of sixty days or more as a suspension.
This was a second offence for the licensee within three years, (the first offence involved the establishment of due diligence for a racehorse later found to have been an outlier), however, the second condition was not met.
The Ruling is set aside.
D. Hayter
The panel allowed the appeal in part, as to penalty, in SB Ruling 46151:
The Result:
(i) $100 fine
and
(ii) no suspension
DATED this 16th day of July 2015.
_________________________ _____________________ ___________________
Elmer Buchanan Anthony Williams Justin Fogarty
Chair Vice Chair Commissioner