CanadaTheir horse won a race. So why did Ontario wage a two-year legal battle with them to get back $1,500?

15:20  24 may  2019
15:20  24 may  2019 Source:   thestar.com

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They had co-owned close to 30 horses over their 10- year partnership but had been in the game long before “Without getting into the complexities of the legal arguments, I was not satisfied there was a The Registrar sought judicial review of the Horse Racing Appeal Panel, in Ontario Superior Court.

I dated a horse trainer for about a year many years ago now but I got the opportunity to see these magnificent creatures behind the scenes. They live outside and are worked until they die or can no longer do their job, in which case they are sent back to auction and replaced with a fresh animal.

Their horse won a race. So why did Ontario wage a two-year legal battle with them to get back $1,500?© Peter Power The owners of Magic of Brussels, Linda Wellwood, left, Tammy Aspden and Anne Shunock, at Golden Horse Shoe Lanes in Milgrove, Ont. A runner-up finish in a standardbred race in 2015 set off a long battle over a small amount of money after the winner failed a drug test.

Nine standardbred racehorses, with seated drivers steering each speeding animal, thundered around Georgian Downs, near Barrie, in early June of 2015.

Heathers Shadow won the mile-long event and the $3,500 first-place purse money. Magic of Brussels picked up the pace after a slow start to finish runner-up, her driver Lyle MacArthur recalled.

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“She raced good,” MacArthur said of Magic’s hustle.

Heathers Shadow, however, failed a post-race drug test, was disqualified and forfeited all prize money as the rules of racing dictate. Her trainer appealed. Racing officials dismissed it. Magic was moved up to winner and earned her co-owners — three experienced horsewomen with full-time careers outside the sport — an extra $1,500: the difference between first and second place.

Tammy Aspden said she, Linda Wellwood and Anne Shunock soon forgot about that race after Magic’s additional winnings arrived by cheque in February 2016.

“We never put any more thought into Heathers Shadow or the positive test,” said Aspden, 51, who operates a Niagara lawn care business with her husband.

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“As far as we were concerned, the case was closed.”

For about another year, it was.

It blew open when the provincial horse racing regulator, Jean Major, concluded that based on new science, four positive drug tests from 2015 were not actually positive after all — an unprecedented decision that included Heathers Shadow’s results — and ordered prize money returned and original placings restored. Magic’s owners challenged the unusual order. Major, as Registrar of Ontario’s Alcohol and Gaming Commission, responded by chasing the women all the way to Ontario Superior Court when they defied him and refused to return that $1,500.

Along the way, the trio would be suspended from racing, denied disclosure documents for months and rack up $75,000 in legal fees during the two-year showdown with the government agency tasked with overseeing compliance within the heavily subsidized horse racing industry. The women challenged the agency — and they won.

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It was an episode that began, at least for the women, in a cloud of secrecy and confusion.

They weren’t contacted about Major’s order, issued Oct. 6, 2016, until four months after it was posted. Neither their names nor Magic’s name were mentioned in the order. The women had no idea they were being tapped to return their winnings from that Georgian Downs race held nearly a year and a half earlier.

Instead, it was Lyle MacArthur, who is Wellwood’s spouse and not one of Magic’s owners, who was phoned in early 2017 by a racing official about the “problem” with the Georgian Downs mile.

MacArthur, 62, said he was annoyed the official hadn’t called the women, but MacArthur asked for “something in writing” to give Wellwood. The official later mailed a handwritten note and a printout of prize money distribution from the race that Heathers Shadow and Magic were in.

Wellwood, a 56-year-old psychiatric nurse, actually tried to pay the requested $1,500, though she was unsure why the group owed it or to whom. Wellwood said she wanted to square up quickly and took it upon herself to do so. At this point, her partners Aspden and Shunock didn’t know they’d been directed to pay it.

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Wellwood drove from her Brant County home to Flamboro Downs, near Hamilton. Transactions are commonly done in person at racetracks. She pulled the chequebook from her purse, showed the racetrack judges her paperwork — the handwritten note and the printout — but was puzzled when they wouldn’t accept her cheque.

Nor would they look her in the eye or answer questions about the repayment order, she said.

“The red flags were going off,” Wellwood recalled, saying the judges were evasive. “They didn’t want to have anything to do with it.”

One judge she’d known for decades gave her a clue: research the drug oxilofrine.

Wellwood contacted Aspden. They teamed up and discovered the details in Major’s order. Oxilofrine is a banned amphetamine type of stimulant. It was found in Heathers Shadow’s sample — but its presence, according to the “strong scientific evidence” cited in the order, was due to the metabolic breakdown of a permitted antihistamine that contained ephedrine. The Registrar’s order waived compliance of the rule mandating sanctions for drug offences.

The women were stunned.

They had co-owned close to 30 horses over their 10-year partnership but had been in the game long before that. They had never heard of prize money given to a horse caught with banned drugs in its system, regardless of the circumstances.

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Aspden took the lead fact-finding role for the group. She began quizzing race officials about details in Major’s order — particularly since a positive test cannot be withdrawn once it is issued. Even with Major’s decision in place, the four horses’ positive test results could not be modified or expunged. They would stand forever.

“The bottom line was oxilofrine was in the horse’s system at the time of the race,” Aspden said. “How it got there was irrelevant to me.”

Aspden, Wellwood and Shunock also demanded to know: why, exactly, did they owe money when their horse was “clean” and why was a horse with a positive drug test being awarded prize money?

Answers were not forthcoming. Their queries were sent up the AGCO legal chain and landed on the desk of the Registrar’s counsel, Danielle Bastarache.

Then things got even murkier.

Bastarache told Aspden in an email March 24, 2017, that “testing was done in error” with the samples of the four horses in Major’s order. “The evidence shows that it is a testing error rather than the actual administration of the banned substance that resulted in the positive test.”

That “error” assertion turned out to be false. The lab did not make mistakes.

When Aspden inquired for more detailed reasons behind Major waiving rule compliance, Bastarache responded in a letter May 12, 2017:

“The Registrar exercised his absolute discretion and waived the rule. The reasons behind his discretion are of internal policy nature and do not have to be disclosed.”

The lawyer also advised Aspden that she had two weeks to reimburse the purse money or “we will have no choice but to take actions under the rules.”

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Aspden and her partners refused. They were suspended from racing indefinitely. The women hired a lawyer. They wondered, at times, if the AGCO was hoping to drain them financially and emotionally with legal foot-dragging.

Still, they fought back.

“They picked the wrong three women to pick a fight with,” Aspden said.

“We did nothing wrong.”

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Jean Major is an experienced regulator, most recently with the Alcohol and Gaming Commission of Ontario but before that, he headed up the former Ontario Racing Commission — a stand-alone body that policed horse racing industry matters across all breeds: thoroughbred, standardbred and quarterhorses.

Regulation of the horse racing industry was transferred to the AGCO when the old racing commission dissolved three years ago. The sport joined a crammed set of duties for, what’s essentially, Ontario’s vice squad: the agency is “responsible for regulating Ontario’s alcohol, gaming and horse racing sectors and cannabis retail stores in accordance with the principles of honesty and integrity, in the public interest,” according to the AGCO website.

Major’s in-depth knowledge of horse racing assisted him when considering the four races in question. Two were held at Mohawk’s Woodbine Park, one at Ottawa’s Rideau Carleton Raceway and one at Georgian Downs. All four races were held over two days, June 6 and 7, 2015.

He was also guided by a set of scientific investigations by labs attached to the Canadian Pari-Mutuel Agency (CPMA), a federal agency that oversees equine drug testing.

Quick background: Horse racing people suspected that ephedrine contained in common antihistamines for horses given during allergy season was producing inadvertent oxilofrine positives; trainers and vets reported their hunches to CPMA officials. The equine testers confirmed the industry’s suspicions: oxilofrine was, indeed, a byproduct of ephedrine breakdown, even when legally administered within the suggested guideline (of 48 hours prior to a race).

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The CPMA also discerned that ephedrine cannot mask a deliberate administration of oxilofrine. Each drug has a particular chemical “fingerprint” that can be identified, according to CPMA spokesperson James Watson.

The CPMA’s manager of research and analysis notified the now-dissolved Ontario Racing Commission about the ephedrine investigations via email in June 2015. (By December of 2015, the old commission’s appeals tribunal absolved Heathers Shadow’s trainer of any drug blame, based on this new CPMA information, but the positive test stood. The prize money remained forfeited at that time.)

Magic’s owners said they never disputed the trainer’s exoneration.

On Oct. 6, 2016, Major — now in charge of racing regulation — took the matter a step further when he decided the “certificate of positive test” issued by the CPMA could not be supported by the evidence, in his opinion. He waived compliance with racing rule 18.08.03, which requires sanctions, including the loss of all purse money and finishing position, when a horse is disqualified for producing a positive drug test.

“Without getting into the complexities of the legal arguments, I was not satisfied there was a breach of the rules based on the information provided to us by the CPMA after they submitted their positive test certificates,” Major said, in an interview describing the new scientific evidence as exculpatory.

“New information came to light that suggested to me that I didn’t have the evidence to continue a prosecution and (it’s) not dissimilar to how you would see a police officer laying a charge and, the Crown prosecutor reviewing the evidence and saying … ‘We’re withdrawing the charge.’ ’’

Major also said this order was unique because of the specific ground-breaking CPMA detective work that influenced him, and he didn’t “anticipate this happening again.”

“In this particular case, we took it at face value but when the additional information came to us from the CPMA that they shouldn’t have called it (positive), to me, that was a material change,” Major continued.

“I didn’t think it was fair to prosecute the horsemen in those circumstances.”

When told that the women said, in contrast, that they felt bullied by a government agency when they’d done nothing wrong, he said “I can certainly understand their position.

“My point would be that the original four horsemen did nothing wrong, either,” Major continued. “We were trying to put the clock back where it should have been, in my view.”

The stakeholders in the other three races complied with Major’s order, according to the AGCO office.

In 2017 the women filed an appeal with the Horse Racing Appeals Panel over Major’s order; the tribune decided to hear it.

The Registrar’s legal team would not call a single witness to the stand. Nor would Major testify; the tribunal quashed his subpoena.

Magic’s owners hired lawyer Dan McMahon, who was better known for representing players in the thoroughbred racing world.

Tammy Aspden said they found McMahon through friends’ suggestions when the partners were “forced” to hire a lawyer after they sought to have their indefinite suspensions stayed. Major’s office quickly consented to a stay but the shock of the discipline, made public online, rattled the women. Anne Shunock learned of it when a friend, during church services, told her she read it on Standardbred Canada’s website.

And Linda Wellwood said: “I’ve never been suspended for anything in my life.”

After the suspensions were stayed, Magic’s owners fought to obtain disclosure from the Registrar’s counsel in 2017 to prepare their appeal of Major’s order and their suspensions. Government-requested adjournments pushed a disclosure hearing into November, with McMahon and the women still under the impression that CPMA testers made errors. (They would learn from disclosures that the CPMA sent a letter dated Nov. 17, to Registrar’s office counsel Danielle Bastarache, to “clarify no testing errors were made with respect to these four cases.”)

The Horse Racing Appeal Panel hearing was held over three days in April 2018. The central issue focused on whether it was fair and reasonable that first-prize money should be taken from Magic’s owners “when the horse that crossed the finish line first, ‘Heathers Shadow,’ raced with the prohibited Class II drug oxilofrine in its system.”

The AGCO’s legal team called no witnesses to support the Registrar’s position. McMahon called 10.

The most notable witness was Rod Seiling, former Ontario Racing Commission chair — and before that, the retired NHLer was a member of Canada’s famed 1972 Summit Series team. Seiling, in an exchange with McMahon, testified that a horse with a positive drug test should not receive prize money, according to court transcripts that have been lightly edited for clarity.

McMahon to Seiling: Did you ever have occasion to see a situation where someone with a positive test would be awarded the purse money?

A: Never.

Q: Why would that be?

A: It defies the principles of natural justice.

Q: Could you be more specific with respect to that?

A: You would have an occasion where a horse would have an unfair advantage … and set a terrible precedent.

Seiling was also questioned by the panel’s vice-chair, Sandra Meyrick, about the 2015 drug test results:

Meyrick: Although there was a certificate of positive analysis, today if the horse were tested there wouldn’t be the same positive. There wouldn’t be a certificate issued. Does that change your view about the situation here?

Seiling: Rules change all the time but you can’t go back and rewrite history … (I) feel very strongly, you have to adjudicate and make your decision based on the rules that were in effect that day … Otherwise, you will leave yourself open to other appeals as well.

Wellwood said Seiling was “excellent.”

“He was so professional,” she recalled, adding that he never spoke to the women or acknowledged them.

The appeals panel, chaired by Stanley Sadinsky, set aside Major’s order with respect to the Georgian Downs race, stating:

“Based on the unchallenged evidence introduced by the Appellants, we are satisfied that it would be inconsistent with long standing rules to permit a horse that tests positive for a prohibited drug to retain any purse monies. While the trainer of “Heathers Shadow” may have been exonerated, the Judges were correct when they disqualified “Heathers Shadow” and ordered that the first place purse monies should be redistributed. In our view, an application of the rules to that effect serves the best interests of horse racing.”

The women won. They were also awarded costs: $7,500. The panel took issue with the Registrar’s counsel not providing timely evidence and documentation that the appellants were entitled to, forcing them to proceed with a motion of disclosure.

The panel also found that the Registrar’s counsel “acted unreasonably in refusing disclosure” with respect to advising the appellants that the Registrar’s reasons for his order need not be disclosed; advising that there had been a testing error when it turned out there wasn’t one; and advising that the Registrar was not in possession of CPMA information and documents when he made his order, “which statement was incorrect.”

But the matter did not end there.

The Registrar sought judicial review of the Horse Racing Appeal Panel, in Ontario Superior Court. Major did not believe the panel had the authority to hear the appeal of his order. This time in court, Aspden, Wellwood and Shunock and the Horse Racing Appeal Panel were named respondents.

The appeal was dismissed this past March 29. The women were awarded more costs: $15,000

The Registrar’s office now owed Magic’s owners a total of $22,500.

Brian Tropea is the general manager of the Ontario Harness Horse Association, which represents interests of those involved in the standardbred racing industry. The association supported Aspden, Wellwood and Shunock throughout their legal battles and gave them $5,000 towards fees.

Tropea described the registrar’s pursuit of the women — racing partners with “an unblemished history in the sport,” he said — as shocking.

“To think of the effort they went through to try and recover $1,500, it’s outrageous,” said Tropea, who appeared as witness at the appeals panel hearing.

Magic of Brussels gave birth on the opening day of the Horse Racing Appeal Panel hearing. The filly’s name was a sassy nod to the partners’ success: Settn A Precedent.

“It was a sign,” said a smiling Shunock, gazing at the yearling being walked around the stables at the Clark Equine Centre in Caledonia.

The women would go on to win twice in court, receive partial recovery of their legal bills, and resolutely stood their ground on racing integrity — that was important to them.

“This was never about $1,500,” said Wellwood. “This was about principle.”

The women had gathered at MacArthur’s barn on a cold spring day, just a few weeks after the judicial review panel dismissed the Registrar’s appeal. They reflected on what they’d done in taking on the government and ultimately, was it worth it?

The short answer from the women is yes. They say they felt moved to protect horses, the sport and the betting public from efforts to modify positive drug tests.

Financially, the women are each out of pocket about $17,000 — even factoring in the court-ordered costs that by late May had not yet arrived. They figure it’s all lost money they would have, instead, invested in the sport and the animals they are so passionate about. Magic is retired from racing, now a brood mare owned by others.

“The big thing for us is the love of the horses,” said Wellwood. “The love of the sport and the horse is a shared interest.”

Their friendship stayed intact but their partnership did not survive. Shunock, of Dorchester, did not renew her licence to race after the Registrar’s office suspended the trio. She maintains a small breeding operation with her husband.

“I want nothing more to do with horse racing, I don’t trust them,” Shunock said of AGCO racing authorities.

“They’re supposed to be showing honesty, integrity and transparency and we had none of that.”

Horse racing is not in its best health as an industry.

It collapsed after the Ontario government, under premier Dalton McGuinty, announced in 2012 it was killing a lucrative slot machine revenue sharing program with racetracks. McGuinty’s successor, Kathleen Wynne, began directly subsidizing the industry with public funds. Now it’s pegged to receive up to $105 million annually over the next 19 years under Doug Ford’s government.

The women don’t make their living through racing or breeding horses. Aspden said it’s increasingly difficult for the mom-and-pop stables to exist.

“People are struggling to stay involved in this business,” said Aspden, currently with a dozen horses and a few brood mares.

“I am the same way. I went from having quite a few to only a handful.”

At the same time, Aspden believes it’s more critical than ever to uphold the rules of racing.

“If you start allowing horses to keep their purse money after testing positive because they can show they didn’t mean to do it, or it was a mistake, or somehow the drug got into their system through a third party, that jeopardizes the integrity of this sport,” she said.

“Racing is hanging on by a freaking thread in North America — forget Canada.”

Mary Ormsby is a reporter and feature writer based in Toronto. Reach her via email: mormsby@thestar.ca

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