Larry Cappuccitti and Renee Wilson v. Administration, 2016 CanLII 5255

RULING NUMBER COM TB 23/2015

COMMISSION HEARING TORONTO, ONTARIO – JULY 21, 22, AUGUST 6, and SEPTEMBER 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

LARRY CAPPUCCITTI AND RENEE WILSON

Thoroughbred Licensee, Larry M. Cappuccitti (“Cappuccitti”), has appealed against Rulings TB 9149/2015 and 9150/2015. Quarter Horse Licensee, Renee Wilson (“Wilson”), has appealed against Ruling QH 9163/2015.

Dates of Hearing: July 21, 22, August 6 and September 10, 2015

ORC Panel: Elmer Buchanan, Chair Sandra Meyrick, Commissioner

Counsel for the Appellants: Frank L. Roth Counsel for the Administration: Luisa Ritacca, Brendan Van Niejenhuis and Carlo Di Carlo

Decision: The Appeals have been allowed

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

DATED at Toronto this 8th day of February 2016.

Jean Major Executive Director

REASONS FOR DECISION

1This hearing is in relation to two appeals brought by two licensees. The licensees raise similar issues in their respective appeals requiring similar evidence to be lead on those issues. The Panel has agreed to combine their hearings at the request of, and upon the consent of, the parties as permitted by section 9.1 of the Statutory Powers Procedure Act.

2Cappuccitti is licensed (Licence #134609) with the Ontario Racing Commission (“ORC”) as an owner/trainer/exercise person. On July 11, 2014, the horse “Seeking the Bay” (Tattoo number 007125), trained by Cappuccitti, participated in the 3rd race at Woodbine Racetrack and finished 3rd. Following the race, Seeking the Bay provided a urine sample for testing. The sample went to Maxxam Analytics Inc. (“Maxxam”), an ISO accredited laboratory, for analysis. Maxxam is audited by the CPMA. On July 15, 2015, Maxxam issued a Certificate of Positive Analysis of an Official Sample of Seeking the Bay for methamphetamine, a Class I Drug. On July 24, 2014, Ruling Number 8735/2014 was ordered by the Stewards. Seeking the Bay was placed on the Stewards’ List and ineligible to race in the Province of Ontario for a period of 90 days, July 23 through October 20, 2014, as per Rules of Thoroughbred Racing 15.04.04 and 16.11.01.

3Cappuccitti’s horse, “Kissed by a Ghost” (Tattoo Number LO6259) raced on August 29th, 2014, at Woodbine Racetrack placing 4th in the second race. Kissed by a Ghost was selected to be tested. The horse attended at the test barn and a urine sample was obtained. The sample was sent to Maxxam to be analyzed and found to contain the Class I drug methamphetamine. On September 2, 2014, Maxxam issued a Certificate of Positive Analysis of Official Sample for Kissed by a Ghost. On September 12, 2014, the Stewards issued TB Ruling 8195/2014 in which Kissed by a Ghost was placed on the Stewards’ List and ineligible to race in the Province of Ontario for a period of 90 days, September 13 through December 11, 2014, as per TB Rule 15.04.04 and 16.11.01.

4On April 8, 2015, the Stewards at Woodbine Racetrack convened to hear the above two matters. Cappuccitti was represented by legal counsel Frank Roth. It was agreed that the two positive tests would be treated separately but that the matters be heard together for expediency and for the fact that the evidence would be similar in both matters.

5In relation to the horse Seeking the Bay, the Stewards found Cappuccitti in violation of TB Rule 15.06.03 (a) and (c). By TB Ruling # 9149/2015, Cappuccitti is suspended for a period of one year, April 27, 2015 through April 26, 2016, inclusive, and fined the sum of $5,000, payable at the conclusion of his suspension.

6In relation to the horse Kissed by a Ghost, and as a second offence for a Class I positive test within a three year period, the Stewards found Cappuccitti in violation of TB Rule 15.06 (a) and (c). By TB Ruling # 9150/2015, Cappuccitti is suspended for a period of five years, from April 27, 2015 through April 26, 2021, inclusive and fined the sum of $20,000 payable at the conclusion of his suspension.

7The Panel has stayed enforcement of these Rulings until the hearing de novo of these matters.

8Wilson (License # 132394) is the trainer for the horses “Chasing Royalty” (Tattoo # 401C0), “Fames Winner” (Tattoo #219C7) and “JJ Maxwell” (Tattoo #540A3). Each of these Quarter Horses participated on October 13/14, 2014, at Ajax Downs. Following their respective races each of these horses was selected for urine testing. The urine samples were sent to Maxxam for analysis and on October 24, 2014, Maxxam issued three Certificates of Positive Analysis of an Official Sample for the Class I Drug Methamphetamine, for the three horses, Chasing Royalty, Fames Winner and JJ Maxwell.

9On October 23, the Stewards’ at Woodbine Racetrack issued Ruling # 9163/2015 wherein they suspended Wilson for 1 year and imposed a fine of $5,000 payable at the end of the suspension of the Steward’s Order until June 15, 2015.

10On May 14, 2015, the Deputy Director by Ruling Com QH 001/2015, granted Wilson a stay until June 15, 2015. Thereafter Wilson obtained an extension of the stay.

11UPON thorough review of the evidence filed in support of the hearing including, the Books of Documents filed by the Administration and the Appellants, the Factum of the Administration, the Factum of the Cappuccitti and Wilson, the 21 exhibits in all;

12UPON HEARING the viva voce testimony of Ken Gab, Darlene DiPaola, Luba Kainins, Madeline Nelson, Holly Sinclair, Pam Keast, Victoria Sinclair, the ORC Investigators, Tyler Durand and Rick Grant, the official chemists of Maxxam, Graeme Conlon and Sandrine Merette, the Stewards, William McMahon and Fenton Platts, and the Appellant’s witnesses, Dr. Beaumier, Dr. Tobin, Brian Tropea, Richard Crispi, Greg Watson, Eddie Walton, Alyssa Gillis, Cappuccitti and Wilson;

13AND UPON READING written submissions of counsel for the Administration and for Cappuccitti and Wilson,

14The Appeals are allowed.

Preliminary Matters

Motion brought by the Administration to hear the testimony of Dr. Conlon and Dr. Merette by way of witness panel July 21, 2015

15The Administration seeks to provide evidence of the Official Chemists of Maxxam Laboratory by way of a witness panel as provided for by section 15.2 of the Statutory Powers Procedures Act, 2002, allowing a panel of two or more witnesses to make submissions on relevant issues.

16The Administration argues:

The panel approach improves the degree to which evidence is understandable.

The panel approach focuses attention on disagreements (or misunderstandings) between experts.

The panel approach is expeditious where, as here, there is a lot of evidence to get through.

There is no genuine unfairness to the parties.

17The Appellants oppose:

The panel approach has been used in public inquiries, not as here where there are two appellants with differing circumstances, time frames and facts;

It is important to determine if there is genuine disagreement, and this is best achieved when witnesses provide testimony independently of each other to avoid potential tainting of evidence;

Expedience should not take priority over process, or perception of fairness for the litigants;

Very few cases where a panel has been used and none on point with this proceeding.

Reasons

18The Ontario Racing Commission has not engaged such panel evidence to date. The opportunity to do so is appealing on a variety of levels, particularly where there is one Appellant and where the evidence to be lead is expert evidence and the positions of the experts are known to the litigants because reports have been served. We are of the view, however, that in regard to this matter, where there are two litigants, and where the witnesses sought to be called by way of a panel are not experts, where the evidence is complex and it remains uncertain what evidence these witnesses will provide, the witnesses should not be permitted to hear evidence of the other prior to testifying. This is without prejudice to either party or the Panel to seek to convene a witness panel later in the hearing if it appears appropriate.

Motion by the Administration to refuse to qualify Dr. Thomas Tobin and Dr. Pierre Beaumier as experts in these proceedings September 10, 2015

19The Administration relies on:

a) White Burgess Langille Inman v Abbott and Haliburton Co. 2015 SCC 23, [2015] SCJ no 23 – where the Supreme Court of Canada recently confirmed that the impartiality of the expert goes to the admissibility as well as to weight to be given to the expert’s testimony. Here it is argued that both Dr. Tobin and Dr. Beaumier have an interest in the success of the Appellants’ cases and that they have both assumed a role of advocate for the Appellants;

b) R. v. Mohan 1994 CanLII 80 (SCC), [1994] 2 SCR 9 is the leading Supreme Court of Canada decision on the use of experts in trial testimony. Sopinka, J., for a unanimous court, stated that expert evidence should be admitted based on four criteria:

• It must be relevant;

• It must be necessary to assist the trier of fact;

• It should not trigger any exclusionary rules, and

• Must be given by a properly qualified expert;

20The probative value of admissible evidence must be balanced against the prejudicial effect. Here the witnesses sought to be qualified are unable to give objective, impartial evidence because they have “skin in the game” and have become advocates for the Appellants.

21The witnesses have not executed a Certificate of Impartiality.

22Appellants seek to have the witnesses qualified as experts:

a) The decision of the ORC one way or another will not negatively impact the reputation of the two witnesses in the scientific field thus they remain objective and impartial;

b) At least one of the witnesses has been qualified before an ORC hearing;

c) The witnesses have indicated that they are willing and able to provide impartial evidence.

Reasons

23The Panel has considered the very thorough submissions of counsel together with the evidence given orally by the two witnesses, Dr. Pierre Beaumier and Dr. Thomas Tobin, both in chief and cross.

24The Panel has determined to qualify Dr. Thomas Tobin as an expert in ”environmental contamination and the effect of methamphetamine on the performance of horses”.

25The Panel has determined to qualify Dr. Pierre Beaumier as an expert in the “metabolism of methamphetamine in a race horse”.

26The Panel has reviewed the case law submitted in relation to the exclusion of an otherwise admissible expert because of concerns of impartiality and objectivity. Expert witnesses have a duty to provide fair, non-partisan and objective evidence. The acid test offered is whether the expert opinion would change if retained by the other side or party. Here both witnesses have been asked directly of their understanding to provide impartial and objective evidence. Both agreed that this is their obligation to the Panel. They are aware of this duty and appear willing to carry it out.

27The Administration has raised concerns about the witnesses’ respective interests and willingness to comply with their obligations. As much as the Administration has raised these concerns, the Panel believes that such can be managed through the attribution of weight to be given evidence rather than the exclusion of it.

The Issues

28The primary issue central to both the Cappuccitti and Wilson Appeal is the application of Rule 15.06.03 (a) and (c), or the propriety of such an application, in cases where, on the evidence it is established that the positive drug test arises from environmental, or other contamination rather than any act or omission of the trainer, groom or other person who has charge, custody and care of the horse.

29The Panel is asked to consider, among other issues:

The chain of custody of the disputed samples;

The findings stated in the Certificates of Positive Analysis of the Official Samples;

The minute concentration levels of methamphetamine in these horses;

The minute concentration levels of methamphetamine and performance enhancement;

The lack of amphetamine (the metabolite of methamphetamine found in humans) in the relevant samples.

The Rules

30Rule 15.06.01 The trainer, groom and any other person who, in the opinion of the Stewards or the Commission, has charge, custody or care of a horse;

31Is obliged to properly protect the horse, guard it against the administration of a prohibited drug, protect the horse, and guard it against wrongful interference, or substitution by anyone in taking of a urine of blood sample.

32If such a person should fail to protect and guard the horse, he/she or they will be regarded as bearing responsibility along with the person who actually administered such drug, or wrongfully interfered with or substituted in the taking of a urine or blood sample. Where the Stewards find a failure to properly protect a horse, subject to Rule 15.04.02 they shall impose such penalty and take such action as they deem proper, or shall refer the matter to the Commission. The Appellant or his representative has the right to record any hearing at their expense.

33The Absolute Liability regime for positive drug tests is established by Rule 15.06.03 of the Rules of Thoroughbred Racing (which also apply to Wilson’s Quarter Horses - Rule 1.01.01.2). Pursuant to this Rule, a trainer, groom or any other person, who in the opinion of the Stewards or the Commission, has charge, care or custody of the horse, is guilty of an absolute liability offence when their horse tests positive for a non-therapeutic substance or any substance that the Canadian Pari-Mutuel Association (“CPMA”) has determined to be a prohibited substance:

15.06.03 Notwithstanding Rule 15.06.01, the Commission and all delegated offices shall consider the following to be absolute liability offences:

a) any trainer whose horse(s) tests positive for any substances determined to be non-therapeutic;

b) any trainer whose horse(s) tests positive resulting from the out-of-competition program;

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

d) any trainer whose horse(s) level of TC02 equals or exceeds the levels set out in Rule 37.01.

34In other words, despite the due diligence of the trainer, groom or other person with charge, care or custody of the horse, the positive test alone gives rise to an absolute liability offence and is sufficient to trigger not less than the minimum penalty established under the Rules.

35Rule 15.04.01 Should the Official Chemist ‘s report on urine, blood or other samples taken from a horse be positive, he/she shall forthwith notify the Stewards or Commission by telephone and this notification shall be taken as prima facie evidence of a positive test. He/she shall confirm such findings by special delivery prepaid mail to the Commission and presiding Steward.

36The onus is reversed therefore and the Appellants are put to the task of rebutting the prima facie evidence of a positive test.

37Rule 24.3 If any case occurs which is not or which is alleged not to be provided for by the rules or if the imposition of the rules would prove to be a hardship on any licensee, it shall be determined by the Commission in such a manner as it believes is in the best interest of racing. The Commission may also, in its absolute discretion, at any time, waive the breach of any of the rules, which waiver or breach the Commission does not consider prejudicial to the best interests of horse racing.

The Evidence

38Larry Cappuccitti is a licensed Owner, Rider and Trainer with the ORC. He was training 34 horses at Woodbine until the positive tests. He now runs 12 horses. The positive tests under appeal have profoundly affected his reputation in the industry and his income. Cappuccitti has no previous violations. He has no knowledge as to where the methamphetamine has come from. The evidence is that there were a cluster of positive tests around the same time as Cappuccitti’s positive tests. He believes that it is from environmental contamination or mishandling at the testing level. Both Administration as well as Appellant witnesses state that Cappuccitti runs a high quality operation, with strictly observed barn rules, including storage of medication. His Veterinarian, Dr. Ted Coker, states that in his lengthy equine practice he has not seen an operation as well run.

39Renee Wilson is a licensed owner and trainer with the ORC. She operates a farm in rural Farwell, Michigan where she owns 10 horses, trains 49 Race Horses and 78 Quarter Horses. Wilson also trains 4-5 Barrel Horses. She is said to run an immaculate farm. The witnesses called by both the Administration and Wilson spoke to the high standard maintained by Wilson in her care of the horses. Wilson also confirms that the positive tests in Ontario have affected her ability to train in Ontario and owners “have pulled their horses”. The evidence is that the methamphetamine in the Wilson case came from a contaminant in the horse trailer that Wilson bought only hours before her transport of three horses to Ajax Downs. Wilson travelled 13 hours to Minnesota to purchase the horse trailer, cleaned the trailer before loading her horses, and within 24 hours drove to Ontario with this and another trailer, transporting 10 horses in total, 3 horses in the new trailer. The 3 horses transported in the “new” trailer tested positive for methamphetamine. The horses transported in Wilson’s second or “old” trailer did not. Methamphetamine was later found in the “crud” in the new trailer’s trough. Dr. Beaumier described these circumstances, with the negative control, as a “classic test case”.

40There is no dispute that the two Appellants satisfy the requirements of trainer responsibility as set out in Rule 15.06.01 (a). The evidence is that both the Appellants operate facilities that are beyond reproach and maintain their horses in a manner that is of the highest standard of care. There is no evidence that the Appellants, nor anyone caring for the horses, administered methamphetamine to their horses. Neither Appellant has had any prior violation of the Rules of Racing. The evidence is that since their horses tested positive for methamphetamine, both Appellants have done everything in their power to identify the source of the illegal drug and to take additional precautions to avoid further positive tests. Both Appellants have cooperated fully with the Ontario Racing Commission in its investigations.

41In addition, the undisputed evidence is that the low levels of methamphetamine found in these horses’ urine will have no impact on the horses’ performance nor any impact on their health or safety. Further, the trace levels found are consistent with environmental contamination where the substance has not passed through the horse.

42It is not the practice of the CPMA to require Maxxam to test the level or concentration of methamphetamine in the sample, nor is it the practice of the CPMA to test for metabolites. There are three drugs considered therapeutic in nature that are tested for concentration as required by the CPMA, therefore it is possible to perform such testing. The Appellants have sent the positive samples to Industrial Laboratory in Colorado for such testing. There is no suggestion that Industrial Laboratory is not a reputable facility. In the case of Cappuccitti, methamphetamine has been found at levels of 1,75ng/ml and 0.21 ng/ml, respectively, in the two samples. The three Wilson samples show methamphetamine levels of .034 ng/ml, 0.2 ng/ml and 0.056 ng/ml respectively. These are “extremely low” concentrations. The evidence of Dr. Tobin and Dr. Beaumier is consistent. Eight years ago such levels of methamphetamine would not have been detectable. With the advance of testing methods and the high level of sensitivity of current screening methods, in particular, chromatographic/mass spectrometric techniques, increasingly low levels of both legal and illegal substances are detectable. According to Dr. Beaumier, testing has become a billion times more sensitive.

43The evidence is that the urinary metabolite, amphetamine, has not been found in any of the samples. The evidence suggests therefore, although not definitive, that methamphetamine has not passed through the respective horses and that the contamination occurred during or post collection.

44Evidence has been lead in respect of the variety of environmental contaminants including air born contaminants, contaminants in surface, waste and drinking water sources, contaminants on currency and other such transmission.

The Analysis

45The Appellants have raised concerns about the contamination of samples at the testing sites, the chain of custody of the urine samples and protocols employed by Maxxam once the samples arrive at their laboratory in British Columbia. The Panel has heard an abundance of evidence from the test inspectors who have taken the samples from the horses in question and the Official Chemists at Maxxam Laboratory. The test inspectors have given evidence in relation to the testing protocol of Racing Forensics. The Official Chemists have spoken to the chain of custody of the samples once these arrive in the laboratory in British Columbia and the protocols employed by them in testing the various aliquots. The Panel has heard evidence from Dr. Beaumier and Dr. Tobin regarding the probability of contamination of a sample at either the testing site or the laboratory. The Panel is satisfied that the proper protocols and procedures have been followed in the case of these samples. The Panel is not satisfied that the Appellant has shown contamination to the samples at the testing sites, the transit of the samples to British Columbia or at Maxxam Laboratory.

46The Panel is satisfied that the findings stated in the Certificates of Positive Analysis of the Official Samples are accurate.

47Again, the primary issue central to both the Cappuccitti and Wilson Appeal is the application of Rule 15.06.03 (a) and (c), or the propriety of such an application, in cases where, on the evidence it is established that the positive drug test arises from environmental, or other contamination rather than any act or omission of the trainer, groom or other person who has charge, custody and care of the horse.

48In horse racing, it is possible to increase artificially both the physical capacity and the presence of competitive instinct, using drugs, such as anabolic steroids and agents stimulating the central nervous system. The primary motivation of Rule 15.06.03 is to prevent the use of illegal drugs for this purpose. The objective of the testing protocols is to detect any trace of drug exposure (parent or metabolite) using the most advanced methods. The challenge as described by Dr. Tobin is “to set limits high enough to cut off the environmental noise and low enough to stop performance enhancement”.

49The Rules of Racing require that a trainer, groom or other person who has charge, custody and care of a horse maintain the utmost due diligence in ensuring that no illegal drug is given to a horse. In 2008, the Rules were amended to include the “absolute liability” offence of a positive test for a non-therapeutic drug or a drug prohibited by the CPMA. In this case, the two Rules collide. It is evident that the Appellants have maintained their stables and horses at an exemplary standard and yet, by no fault of their own, there is a positive test.

50The Panel must consider the purpose of the Rules of Racing and our obligation to protect the betting public, promote and uphold the integrity of racing and do so in the public interest. The Panel must also consider the licensees of the Ontario Racing Commission and use our judgment in determining how best to balance the evidence and apply the Rules. The Rules, by their very nature, must be applied on a case by case basis. Further, it is the responsibility of the Commission to ensure that the Rules of Racing, and their application, keep pace with the growing body of science and the advent of technology in the industry.

51Section 6 The Commission shall exercise its powers and perform its duties in the public interest and in accordance with the principle of honesty and integrity, and social responsibility.

Racing Commission Act, 2000

52Since the advance of drug screening, in particular, since the introduction of chromatographic/mass spectrometric techniques in 2010, it is now possible to detect substances at levels that were never before considered possible. The evidence is that as screening techniques continue to improve, so will the detection of once inconceivably low levels of toxins or illegal narcotics. The evidence is that these positive results are frequently environmental in nature. The substance is not administered but rather caused by an environmental contaminant. The evidence is that such low level detection is not forensically considered harmful to the horse or performance enhancing. The preponderance of evidence is that methamphetamine did not pass through the horse at all in these cases.

The Decision

53The Panel has thoroughly considered all of the evidence upon which the Administration and the Appellants rely. Without addressing herein the considerable body of ORC decisions and case law which raise similar issues, suffice it to say that the Panel views the advancement in drug testing since 2010, and the growing body of scientific data available to the Commission in regard to environmental contamination, to have enormous effect on the application of the current Rules of Racing, specifically, the “Absolute Liability” offences.

54The Administration correctly relies on the Rules of Thoroughbred Racing to find that the Cappuccitti and Wilson are guilty of an offence under Rule 15.06.03 in that their horses tested positive to a prohibited substance. The Administration argues that the Appellant’s only redress is with penalty. Such was the case of Shakes, 2013, ONSC 4229. The Panel questions whether this is an appropriate approach given the facts of this appeal, where both the licensees have unblemished records, the quantity of prohibited substance was miniscule, where, in Wilson’s case, the source of the contaminant was found in the trailer that she purchased only hours before. Such a finding is likely to destroy the Appellant’s careers and unjustly so.

55The Appellants seek a practical, a sensible outcome. The Appellants correctly argue that since the introduction in 2010 of higher sensitivity testing, there has been a surge in positive tests, with no corollary evidence that these miniscule traces of prohibited substances have passed through the horse, have any ill effect on the horse or in fact, enhanced performance for the horse.

56The Panel is keenly aware of the international industry standard in relation to these low level drug positives and the discussions that are currently taking place in Ontario and the United States to address the changes in testing and the increased environmental contamination. The Panel is also keenly aware of the negative impact of “doping” in the industry and the necessity to ensure that there is a “zero tolerance” approach taken to such activity. It is for this reason that the Commission must address each case individually.

57For this reason the Panel is invoking its absolute discretion provided for under Rule 24.3 to allow the appeals of Cappuccitti and Wilson in relation to these offences. To do otherwise would be to defy the reasoning of the Divisional Court in Shakes wherein it is determined that the imposition of absolute liability must be rationally supported and in the public interest.

The Result

58In relation to the horse Seeking the Bay, Cappuccitti’s suspension for a period of one year, April 27, 2015 through April 26, 2016, inclusive, and the fine in the sum of $5,000, payable at the conclusion of his suspension, is set aside.

59In relation to the horse Kissed by a Ghost, Cappuccitti’s suspension for a period of five years, from April 27, 2015 through April 26, 2021, inclusive and the fine of the sum of $20,000 payable at the conclusion of his suspension, is set aside.

60In relation to the three horses Chasing Royalty, Fames Winner and JJ Maxwell, Wilson’s suspension for 1 year and fine of $5,000 payable at the end of the suspension of the Stewards’ Order of June 15, 2015, is set aside.

Purse Money

61The parties have not made submissions as to the purse money. The Panel will receive further submissions as to the proposed distribution of purse money on or before February 17, 2016, when the Panel will issue their Decision.

Dated at Toronto this 8th day of February 2016.

Sandra J. Meyrick

Elmer Buchanan Sandra J Meyrick

Chair Commissioner