AMENDED RULING NUMBER COM SB 001/2015

COMMISSION HEARING TORONTO, ONTARIO – JUNE 10, 2015

NOTICE OF DECISION

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

AND IN THE MATTER OF THE APPEALS OF KELLY SHEPPARD

Kelly Sheppard, licence # B32660, appealed against Ruling Numbers SB 44438, SB 44437, SB 46139 and SB 46140.

On January 28, 2015, a Panel of the Ontario Racing Commission (“ORC”) was convened to complete the within appeals which had been commenced on April 22, 2014. At the end of the Hearing on January 28, 2015, oral Reasons for Decision were given and on February 11, 2015 further written Reasons for Decision issued from the Panel.

On June 10, 2015 counsel for parties granted intervenor status brought a motion for clarification and for variation and revision of the written Reasons for Decision dated February 11, 2015.

The Hearing proceeded as follows:

Date of Hearing: June 10, 2015

ORC Panel Members: Chair Elmer Buchanan Commissioner John W. Macdonald Commissioner Anne Walker

Representative for the Appellant: Self-represented, assisted by Brian Tropea

Counsel for the Administration: Angela Holland

Counsel for Interested Parties Larry Todd was granted intervenor status on behalf of Linda Denis, Richard Moreau, Richard Wayne Preszcator and Ben Wallace

Decision:

The Panel allowed the motion for clarification and variation or revision so that Mr. Sheppard’s entire suspension and all fines herein with respect to the two aminorex positive tests were set aside in their entirety and all fines eliminated. The Panel also ordered that their written Reasons for Decision dated February 11, 2015 be amended so that paragraph 21 of the Reasons for Decision would be amended as set out in the now amended Reasons for Decision attached to this Notice.

The Panel gave an oral decision at the Hearing.

The Panel’s Amended Reasons for Decision is attached to this Notice and the prior written Reasons for Decision dated February 11, 2015 is hereby withdrawn and rescinded.

DATED at Toronto this 14th day of July 2015.

______________________________

Jean Major

Executive Director

AMENDED REASONS FOR DECISION

1Jennifer Friedman appeared for The Ontario Racing Commission (“ORC”) and Mr. Sheppard appeared in person with the assistance of Mr. Brian Tropea, the General Manager of Ontario Harness Horse Association on the initial hearing which took place on April 22, 2014.

2On this date, January 28, 2015, the ORC was represented by Angela Holland. An application for intervenor status was made by Larry Todd, a former Vice-Chair of the ORC and counsel for trainers that are facing positive test hearings relating to the drug aminorex. In the Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164. Dubin C.J.O. said, that to allow an intervention you consider “the nature of the case, the issues which arise and the likelihood of the applicant being able to make useful contribution to the resolution of the appeal without causing injustice to the immediate parties.” This case was in the Court of Appeal and is the leading case on the subject. The Panel considers intervention here to be appropriate.

3This decision comes from a trial de novo and involves two Class I positive tests of the drug aminorex for horses trained by the Appellant, Kelly Sheppard. These tests were in races on August 28, 2013 and November 18, 2013.

4On March 14, 2014, the Judges held a Positive Test Hearing.

5On that day the Judges issued Standardbred Official Rulings No. SB 46139 and No. 46140 to SHEPPARD wherein he received a $20,000.00 fine, 5 year full suspension (September 7, 2014 to September 6, 2019), and a 2 year probation (September 9, 2019 to September 6, 2021) as a consequence of a second aminorex positive within three months.

6On March 19, 2014, the Deputy Director of the ORC issued Ruling No. SB 11/2014 wherein SHEPPARD’s request for a stay was denied.

7On April 22, 2014, a Panel of the ORC convened for a hearing to consider SHEPPARD’s appeal of both of his aminorex positive tests on the agreement of the parties.

8A preliminary decision was made by the Panel that deferred any final determination to allow for further investigation to find a source that would result in how aminorex would be found in the system of horses.

9There was a reference in that decision that in 2007 there were cases with positive tests for the same drug that were discovered as emanating through levamisole found in feed that metabolized in the system of a horse into aminorex.

10At the hearing there were 11 witnesses with 7 exhibits. The evidence given established that there were prohibited substances in both horses tested and the substances were identified as aminorex in each instance.

11There was no issue of continuity or chain of command as to the drugs that were found from the tests.

12There were two acknowledged experts in veterinarian medicine that appeared. Dr. Adam Chambers and Dr. Michael Weber, both of whom have had connections with CPMA. While they knew the source of the aminorex through levamisole they had no knowledge of any other source of aminorex except for a direct purchase and use of that drug.

13Dr. Chambers indicated that aminorex is an amphetamine like drug that increases blood pressure and has been a de-worming agent for sheep, is hard to come by, not found in other breeds here and in the cases here no levamisole was found.

14Dr. Weber said it was not available from a veterinarian and concurs that it is an amphetamine. It was a European diet product at one time and it may cause pulmonary hypertension and possible lung bleeding.

15Neither of these experts was able to give information as to the possible source of the aminorex.

16It was also provided in evidence that ORC Policy Directives No. 1-2008 and No. 3.2008 would be applicable relating to penalty guidelines and test violation licencing guidelines. The trainer’s responsibility provisions are in Rule No. 26.02.01 and the absolute liability is in Rule No. 26.02.03 enacted in early 2008.

17Mr. Sheppard used a well-known feed company, tested his wormers, salt, hay (came from the farm) and other environmental area possibilities. The inspectors found that the drugs he used for his horses were in an appropriate locker and gave no indication of the source of any improper drug.

18On this day representations have been made by the ORC, Mr. Sheppard and Mr. Todd on behalf of the Intervenors.

DECISION

19Under the rules of racing there is trainer responsibility for the horse and there is an absolute liability under the current rules for positive tests like those here. There are mitigating factors that may modify any penalty imposed and judges and this Panel would review due diligence and the care of the horses involved in determining any appropriate penalty. Where there is absolute liability judges are required to enforce the rules. The ORC has proposed a compromise here as to a possible penalty after reviewing all mitigating factors if the Panel’s decision is that there is to be no penalty for the Appellant. A part of such decision is likely the fact that there has been no exact determination as to how the aminorex came into the system of each horse. The Appellant denies the use of this product and there is doubt as to its availability in Ontario and there is no suggestion that levamisole was involved. There was no evidence before the Panel as to any recent similar cases in other jurisdictions. In his submission Mr. Todd indicated that he had knowledge of some aminorex cases in 3 US States but no evidence of this was submitted.

20The cases referred to in the ORC Factum (Ex. 4) had only 2 that dealt with aminorex and one related to an application for a stay. In the Eric Lock Appeal (Ex. 4 d)) the absolute liability Rule prevailed with the Appellant shown to have exercised reasonable care and due diligence with respect to his trainer responsibilities. The appeal was denied and the penalty varied with the balance of the suspension and fine stayed on conditions.

21No causal link from a source that results in aminorex has been found by the ORC or the Appellant. The absolute liability rule prevails and the appeals as to liability are hereby denied. With the Appellant having exercised due diligence and the source of the aminorex not being established the Panel, in its discretion, hereby sets aside the suspension and the fine in its entirety. The public interest is paramount for the ORC and that is found in the current absolute liability rule. The Appellant has already suffered the loss of purse monies and had been suspended for a time. In fairness the Panel felt the cases should end now notwithstanding that no satisfactory answer was achieved as to how aminorex came to be in the horses. The Panel has varied the penalty to set aside the suspension and eliminated the fine in its entirety.

22In order to clarify the purse payments for the 2 horses of Mr. Sheppard, which were disqualified and suspended, the Panel orders that the purses shall be redistributed to the other horses in those races.

23The Panel feels that these cases have gone on for too long and there should be some finality notwithstanding no causal link to aminorex has been found. The Panel will add to the Appellant’s licence the second portion of Policy Directive No. 3-2008 (items 2 through 4) for a period of 6 months as probation to permit ongoing investigations and out of competition testing. Those provisions are paraphrased as follows:

24The Licensee shall:

(a) allow the ORC investigators access to his stabling area at any time to conduct unannounced random searches for illegal or non-therapeutic medications or drugs;

(b) allow the ORC investigators to seize any illegal or non-therapeutic medications or drugs found at his stabling area; and,

(c) be subject to the ORC “Out of Competition Program”.

Dated at Toronto, Ontario, this 14th day of July 2015.

__________________________ _________________________ ______________________

Elmer Buchanan Dr. Anne F. Walker John W. Macdonald

Chair Commissioner Commissioner

ONTARIO RACING COMMISSION

STANDARDBRED HEARING

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

AND IN THE MATTER OF THE REQUEST FOR HEARING FOR AN APPEAL OF KELLY SHEPPARD

Held Before:

John Macdonald Chairman of Panel Elmer Buchanan Chair of Commission Anne Walker Commissioner (by telephone)

This is an excerpt of the proceedings in the above-mentioned matter held before the Ontario Racing Commission, re KELLY SHEPPARD, taken before Toronto Court Reporters, Suite 1410, 65 Queen Street West, Toronto, Ontario, and held at 10 Carlson Court, Suite 400, Toronto, Ontario, on the 10th day of June, 2015.

Appearances:

Angela Holland for the Ontario Racing Commission Administration Larry Todd for the interested parties Brian Tropea General Manager of Ontario Harness Horse Association

Hearing continued:

MR. CHAIRMAN: Okay, Anne, we’re back following the adjournment. Counsel has pointed out, and this bears repeating, that since there was a positive test judges had to follow the rules that mandated absolute liability, there’s no question about that, and they applied what they considered the appropriate penalties from the guidelines and the result was a suspension and fines and part of that suspension was served until it was stayed. The written Reasons, and if you go to Tab 2, Exhibit 1, the Factum, paragraph 21, the Panel is not sure what we would have done if we had read this submission before the stay was granted but if you go to the last sentence of paragraph 21, ‘the Panel has varied the penalty’. I want to make this clear, it varied the penalty, and that’s as to the time the suspension was served, and eliminated the fine. And what we’d like to do is the Panel has varied the penalty, to use the words referred to in the hearing on the 28th of January, to set aside the suspension and eliminate the fine, to make it clearer, so that the penalty was set aside.

We do not want the Panel to set a precedent relating to any positive test, including aminorex, and each case will have to be decided on the merits and so that’s where we have to rely on the judges. The facts may be similar, there may be the same amount of due diligence and the judges do have the discretion. We obviously don’t want to see a number of aminorex cases coming before a Panel and hope the judges can deal with that using whatever criteria they have including, you know, fairness, and counsel should be aware that we do not consider the fact that there had been a suspension of five or six months or whatever the exact amount was for Mr. Sheppard is any kind of a precedent relating to aminorex or any other drug for that matter. Each case will be decided on its own, hence it’s difficult and we’re hoping that somewhere in the industry, and that includes the veterinarians, they find out where the aminorex is coming from, and this is not, as Mr. Todd pointed out, the levamisole cases where they found that that was something that came out of the horse’s system and ended up being aminorex. As a result of which we are effectively amending paragraph 21 in the written Reasons.

MR. TODD: Could I. . .oh, I’m sorry, are you finished, sir?

MR. CHAIRMAN: Yes.

MR. TODD: Could the record note that there are two references in paragraph 21, one in the fourth line, the reference, quotes, “sets aside the remnant of the suspension”—

MR. CHAIRMAN: That would be amended as well.

MR. TODD: So that the two references in paragraph 21 of your written Reasons should be amended?

MR. CHAIRMAN: In the fourth line and the last—

MR. TODD: In the last sentence to in effect say “to vary the penalty to set aside the suspension and eliminate the fine”?

MR. CHAIRMAN: Yes.

MR. TODD: Thank you very much. And the only other observation, sir, could, when you vary or issue the Order on that, could you please ensure that Mr. Lehman’s Decision which is found at the first page of the same Tab is amended or revised in the Decision, “the Panel denied the appeals, varied. . .”, and the part that needs to be amended is, “. . .varied the penalty to the time of suspension served.” If Mr. Lehman is directed to amend that and whatever judgment or Order is going to be issued today, I’d be most obliged if it would -–

MR. BUCHANAN: It would be consistent with the decision you just heard.

MR. TODD: Thank you very much. And as a matter of mechanics, would it be appropriate for Ms. Holland and I to issue or prepare for your consideration Amended Reasons and then you could look at them and. . .or are you gentlemen going to do it yourselves?

MR. MACDONALD: I think it would be appropriate for counsel to make sure that this time we have it.

MR. TODD: So you get it right?

MR. MACDONALD: Since you blamed me for what we already had.

MR. TODD: Thank you very much. Many thanks for your time this morning.

MR. CHAIRMAN: We are now terminated, subject to the amendments that will be forthcoming.

MR. TODD: Okay.

MR. CHAIRMAN: Anne, any further comments?

MS. WALKER: No further comments. Thank you very much.

CERTIFIED CORRECT: ___________________________