Kelly Sheppard, 2015 CanLII 5589

COMMISSION HEARING TORONTO, ONTARIO – JANUARY 28, 2015

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 April 22, 2014, a Panel of the Ontario Racing Commission (“ORC”) was convened to hear the appeals. The Hearing was adjourned to allow for further investigation into another causal link from a source which results in aminorex, and examine alternative measures to deal with positive aminorex drug tests.

The Hearing proceeded as follows:

Date of Hearing: January 28, 2015

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

Representative for the Appellant: Self-represented

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 denied the appeals, varied the penalty to the time of suspension served, imposed a six month probation with conditions on his licence and eliminated the fines. The Panel also ordered that the purses of the two suspended horses be redistributed to the other horses in those races.

The Panel gave an oral decision at the Hearing with written Reasons to follow.

The Panel’s Reasons for Decision is attached to this Notice.

DATED at Toronto this 11^th^ day of February 2015.

______________________________

Steven Lehman

Executive Director

REASONS FOR DECISION

Jennifer 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.
On 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.
This 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.
On March 14, 2014, the Judges held a Positive Test Hearing.
On 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.
On March 19, 2014, the Deputy Director of the ORC issued Ruling No. SB 11/2014 wherein SHEPPARD’s request for a stay was denied.
On 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.
A 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.
There 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.
At 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.
There was no issue of continuity or chain of command as to the drugs that were found from the tests.
There 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.
Dr. 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.
Dr. 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.
Neither of these experts was able to give information as to the possible source of the aminorex.
It 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.
Mr. 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.
On this day representations have been made by the ORC, Mr. Sheppard and Mr. Todd on behalf of the Intervenors.

DECISION

Under 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.
The 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.
No 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 are hereby denied. With the Appellant having exercised due diligence and the source of the aminorex not being established the Panel, in its discretion, sets aside the remnant of the suspension and the fine in 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 the time of suspension served and eliminated the fine.
In 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.
The 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:
The 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,

Dated at Toronto, Ontario, this 11^th^ day of February 2015.

__________________________ _________________________ ______________________

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

Chair Commissioner Commissioner