RULING NUMBER COM SB 008/2016
COMMISSION HEARING TORONTO, ONTARIO – MARCH 23, 2016
NOTICE OF DECISION
IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF THE APPEAL OF GERALD LILLEY
Gerald Lilley, trainer of standardbred horses, appealed against the penalties imposed on January 18, 2016, by the track judges, for a positive test result for a Class III drug, for the racehorse Party in Rome, in Standardbred Official Rulings SB 46552 and SB 46553.
ORC Panel: Elmer Buchanan, Chair Anthony Williams, Vice Chair John W. Macdonald, Commissioner
Counsel for the Appellant: Robert Burgess, Q.C.
Counsel for the Administration: Luisa Ritacca and Tiffany O’Hearn Davies
Decision: The Panel allowed the Appeal in part as to penalty.
Transcript: A transcript of the oral Reasons for Decision of the panel delivered March 23, 2016, is attached to this Notice.
Reasons: Further written Reasons for Decision were to follow.
These are the Reasons.
DATED at Toronto this 13^th^ day of April 2016.
Original signed
Jean Major
Executive Director
REASONS FOR DECISION
Overview
Gerald Lilley (“Lilley”), was the trainer of record for Party of Rome, a standardbred racehorse.
On August 19, 2015, the horse won the fifth race at Grand River.
A urine sample taken from the horse after the race resulted in a Certificate of Positive Analysis of an Official Sample for the Class III drug Minoxidil.
On November 25, 2015, the track judges held a Positive Test Hearing.
On January 18, 2016, the following penalties were imposed:
(i) $1,500 fine;
(ii) 60 day full suspension;
(iii) upon reinstatement, terms issued to licence for 2 years
THE HEARING
On March 23, 2016, the appeal by Lilley, was heard by a panel of the Ontario Racing Commission (“ORC”).
Counsel for the Administration called one witness:
(i) Adam Chambers, Doctor of Veterinary Medicine, Manager of Veterinary Services for the Alcohol and Gaming Commission of Ontario, and Research Manager for the Canadian Pari-Mutuel Agency (“CPMA”), at Jerseyville, Ontario.
- Counsel for the Appellant called two witnesses:
(i) Gerald Lilley, Trainer;
(ii) Steven Papillon, Owner.
THE EVIDENCE
The Expert
Dr. Chambers (“Chambers”) was qualified as an expert witness in veterinary medicine, the effect of drugs on horses and the elimination of drugs.
Chambers described Minoxidil as a Class III Drug under the Uniform Classification Guidelines for Foreign Substances promulgated by the Association of Racing Commissioners International, Inc.
Minoxidil is an active ingredient in Rogaine, a commercially available product for hair growth in humans.
Chambers said that “the pharmacology of Minoxidil has the potential to affect the performance of a race horse.”
The drug has a “systemic effect”, it is a “vasodilator”, it “increases blood flow” and “decreases blood pressure and hypertension.”
- In excess of 40,000 samples of blood and urine from race horses are analyzed each year either by the CPMA or other laboratories under its authority.
The Certificate of Positive Analysis for Minoxidil for Party in Rome was the first positive test for this drug in Canada.
The test for Minoxidil was a qualitative test, not a quantitative test.
Chambers said that he was “pretty confident that the drug went through the horse”.
The Trainer
- Lilley became a groom at ten years of age, an owner at sixteen and a trainer at eighteen.
He has been a trainer for eleven years.
Lilley trained five horses in the summer of 2015.
Lilley was the trainer of record for Party in Rome on August 19, 2015.
Lilley had never had a positive test before.
Lilley said that he used only therapeutic medications as prescribed by a veterinarian.
Lilley was not aware that Steven Papillon, an owner of Party in Rome, used the product Rogaine, nor was Lilley aware that Rogaine contained the Class III drug Minoxidil.
On September 2, 2015, Lilley was notified of the positive test.
Lilley immediately called his veterinarian for advice.
Internet and Google searches revealed that the drug was in the product Rogaine.
Lilley said that he “did not know anything at all about it before the race (of August 19).”
“The next day (September 2) Steve Papillon stopped using the product”.
Lilley said that on most mornings, Steve visited the training stable to greet the horse and would often feed her carrots.
On August 19, 2015, Lilley asked Steve to help him load Party of Rome into a trailer for the drive to the track.
Steve “took the horse by the head and helped coax her on”.
The day was described as warm.
Both men were sweating.
The Owner
- Steve Papillon (“Papillon”) was a part-owner of Party in Rome.
Papillon lived next to the stable.
- Papillon described Lilley as “a good guy”, “very good with the horses”, “very honest”, “that’s why I have him as a trainer”.
Papillon used Rogaine for two years.
Papillon used the product at home each morning following his shower.
Papillon never discussed his use of Rogaine with Lilley.
- Papillon visited Party in Rome at the stable on the morning of August 19.
Papillon fed “a couple of carrots” to the horse.
- Lilley telephoned Papillon at about “3:30 or something”, that afternoon.
Lilley “needed a hand loading Rome…she’s not the nicest girl.”
Papillon stated “I’m not getting the (back) end …I had her by the halter.”
Papillon fed her a further “handful of carrots.”
- Papillon was told of the positive test for Minoxidil on September 2^nd^.
His first reaction was: “What the hell is that?”
Papillon was told that the drug was contained in Rogaine.
Papillon told Lilley, “I take Rogaine!”
Papillon said “I stopped using it.” (Rogaine) “I’m not going to stop going to the barn.”
ISSUE I
Due Diligence
Q. Did the Appellant establish due diligence?
The panel found that Chambers, Lilley and Papillon, were credible and reliable witnesses.
Lilley presented as a concerned, responsible and conscientious trainer.
The panel found that the likely source of the drug was the accidental contamination of the horse as a result of the cumulative impact of the repeated contact between horse and owner.
The panel found that Lilley 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 result for the racehorse.
The panel found that there was not a “discoverable causative flaw that ‘could readily’ have been remedied.”
ISSUE II
The Penalty
The licensee established due diligence.
Q. What is the appropriate penalty?
Mandatory Sanctions for a Positive Test
(i) Party in Rome was declared ineligible to race for 90 days, SB Rules 11.10.01 (2) and 20.01.01 (2);
(ii) the purse was ordered redistributed, SB Rule 9.13;
(iii) the driver/trainer fees were ordered to be returned, SB Rule 18.08.01;
(iv) the horses not owned by Lilley were to be transferred to another trainer approved by the judges, SB Rule 26.08;
(v) any horses owned in whole or in part by Lilley were declared ineligible to race, SB Rule 6.13.01
- Penalty Guidelines
(i) A first offence for a Class III drug has a suggested penalty of a fine of $1500 and a full suspension range of between 60-180 days.
(ii) “On a first offence, the Commission…may…impose a penalty…below the range in appropriate circumstances.” Penalty Guidelines for Equine Drug…Offences, Directive No. 1, January 28, 2008.
- The Authority
If the Appellant 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, Ontario Divisional Court, at p.7, para 35
- Discretionary Sanctions for a Positive Test
(i) This was the first and only positive test for Lilley in eleven years as a trainer.
(ii) Lilley had no actual knowledge of the presence of the prohibited drug in the horse at the time of the race.
(iii) Lilley had no intention to gain an unfair advantage in the race.
(iv) Lilley was without fault.
(v) Lilley provided full cooperation during the investigation (both interview and search) and at the hearings before the track judges and the panel.
(vi) The mandatory sanctions which result from all positive tests have already had a significant impact upon Lilley.
(vii) Lilley has served 58 days of the 60 day suspension imposed upon him.
(viii) The finding of the panel that Lilley exercised due diligence entitled Lilley “to a fine in a ‘non-oppressive’ amount and no suspension.”
The Result
- In view of the circumstances, the panel allowed the Appeal, in part as to penalty;
(i) $300 fine;
(ii) 60 day full suspension is set aside;
(iii) the terms for two years upon reinstatement of licence are set aside.
ISSUE III
Waiver
Is a waiver of the breach of the positive test rule appropriate and not prejudicial to the best interests of racing, SB Rule 1.09?
The panel has the discretion to waive the breach of any rule.
The waiver must not be “prejudicial to the best interests of racing.”
Waiver has been restricted to exceptional circumstances.
A breach of the positive test rule is an absolute liability offence.
Drug use has had a negative impact on the racing industry.
Drug use prevention has proven difficult through a strict liability regime.
The absolute liability regime, although harsh, has been found to be “reasonably justified in the public interest to protect horse racing.”
Shakes v. Ontario Racing Commission, 2013 ONSC 4229, at p.7, para. 35
A blameless trainer cannot avoid conviction by showing that he was free from fault or that he exercised due diligence.
Due diligence is to be considered at the penalty phase.
If a licensee demonstrates due diligence the penalty will be limited to “a fine in a ‘non-oppressive’ amount” and “no suspension.”
Minoxidil is a drug with the potential to affect the performance of a racehorse.
A positive test for Minoxidil is an absolute liability offence.
A defence of due diligence does not entitle the trainer to a waiver of the positive test rule.
There are no exceptional circumstances in the evidence to justify a waiver of the breach of the absolute liability rule.
The panel found that the exercise of its discretion to waive the breach of the absolute liability rule in these particular circumstances was not appropriate nor in the best interest of racing.
DATED at Toronto, this 13^th^ day April, 2016.
Original signed Original signed Original signed
Elmer Buchanan Anthony Williams John William Macdonald
Chair Vice-Chair Commissioner