In a ruling dated March 19, 2025, the Horse Racing Appeal Panel released its decision on the stay appeal for Sylvain Filion.
Filion was suspended for 10 years and fined $40,000 after an out-of-competition testing sample on Funtime Bayama confirmed the presence of darbepoetin alfa (DPO). As a result of an inspection into the circumstances surrounding the positive test, the Alcohol and Gaming Commission of Ontario (AGCO) ruled that Filion was found to also have been acting as a trainer of the horse along with trainer Richard Moreau, holding both participants responsible for the presence of DPO in Funtime Bayama.
The stay hearing for Filion took place on Friday, March 7. While suspended, Filion is prohibited from accessing association and racetrack grounds, including the winner’s circle, with the exception of the grandstand.
In its ruling, the Horse Racing Appeal Panel (HRAP) dismissed the request for a stay, with HRAP Chair Stanley Sadinsky noting: "In weighing the public interest, in the case of a public authority, the onus of demonstrating irreparable harm to the public interest is lower than that of the licensee...For these reasons, I am satisfied that the overall interests of justice are best served by refusing the Stay. "
The full text from the ruling is available below.
HORSE RACING APPEAL PANEL
TORONTO, ONTARIO – March 19, 2025
SB HRAP 05013 2025
NOTICE OF DECISION
IN THE MATTER OF THE HORSE RACING LICENCE ACT, S.O. 2015 C. 38 Sched. 9;
AND IN THE MATTER OF A REQUEST FOR A STAY BY SYLVAIN FILION OF STANDARDBRED RULING NUMBER 2893638
Date of Issue: March 19, 2025
Horse Racing Appeal Panel (Panel): Stanley Sadinsky, K.C., Chair
Appellant: Sylvain Filion
Counsel for the Appellant: Jennifer Friedman
Counsel for the Registrar: Brendan van Niejenhuis, Alexandra Heine
Decision: The Panel dismisses the request for a stay for the reasons set out below.
WHEREAS Sylvain Filion (“FILION”) is licensed with the Alcohol and Gaming Commission of Ontario (“Commission”) as an Owner/Driver/Trainer, Licence Number HPK6828;
AND WHEREAS Certificate of Analysis #117913 confirmed the presence of darbepoetin alfa (“DPO”) for the horse “FUNTIME BAYAMA” (tattoo number 1WP27), in a sample collected on June 10, 2024, as part of the Out of Competition Testing Program for the North America Cup;
AND WHEREAS DPO is a prohibited performance enhancing non-therapeutic substance which adversely affects the integrity of racing;
AND WHEREAS the listed trainer of record for FUNTIME BAYAMA on June 10, 2024, was Richard MOREAU;
AND WHEREAS an inspection into the circumstances surrounding the positive test found FILION to have been acting as an actual trainer of FUNTIME BAYAMA pursuant to the criteria outlined in Rule 26.16 of the Rules of Standardbred Racing (“RULES”) and the Judges have determined that both the trainer of record and FILION are actually in charge, custody of and/or in care of FUNTIME BAYAMA; In accordance with Rule 26.05 of the Rules, FILION is hereby held to be responsible for the presence of DPO in FUNTIME BAYAMA, in addition to the trainer of record;
AND WHEREAS FILION is found to have violated Rules 26.02.01, 26.02.02, 26.02.03(a) and (b) of the Rules;
AND WHEREAS in accordance with Rules 4.02(i), 6.04, and 6.49 of the Rules and Policy Directive 1-2018, FILION was fully suspended for a period of 10 years and issued a monetary penalty of $40,000.00 with the suspension to be served from October 31, 2024, to October 31, 2034, inclusive;
AND WHEREAS in accordance with Policy Directive 1-2018, FILION is required to complete the AGCO Equine Medication Use and Awareness Program before reinstatement;
AND WHEREAS all horses owned in whole or in part by FILION are not eligible to race during the above-noted suspension period, in accordance with Rule 6.13.01 of the Rules. Any horses trained by FILION are ineligible to race but may, with the consent of the AGCO Race Officials, be released to another trainer in good standing or sold, in accordance with Rule 26.08 of the Rules and Policy Directive No. 2-2008;
AND WHEREAS in accordance with Rule 6.01(a) of the Rules, FILION is prohibited from accessing association grounds, including the “Winner’s Circle”, with the exception of the grandstand, while his licence is suspended.
AND WHEREAS on November 14, 2024, FILION filed a Notice of Appeal and Notice of Motion requesting a stay (as amended on February 7, 2025), to which the Registrar did not consent;
AND WHEREAS on March 7, 2025, the Panel convened to hear the request for a stay, reserving on its decision;
TAKE NOTICE that the Panel dismisses the request for a stay for the reasons set out below.
DATED on this 19th day of March, 2025.
REASONS FOR DECISION – SYLVAIN FILION
The Horse Racing Appeal Panel (the PANEL) convened on March 7, 2025 to hear a Motion for a Stay brought on behalf of Sylvain Filion (FILION). FILION has appealed Standardbred Official Ruling No. 2893638 dated October 31, 2024 wherein the Deputy Registrar of the Alcohol and Gaming Commission of Ontario (REGISTRAR; AGCO) among other things, fully suspended FILION for 10 years (October 31, 2024 to October 31, 2034) and issued a monetary penalty of $40,000 as a result of a positive test for the drug Darbepoetin (DPO) from the horse Funtime Bayama (the HORSE). FILION was found to have been acting as an actual trainer of the HORSE along with its Trainer of Record, Richard Moreau (MOREAU).
On the Motion, Jennifer Friedman appeared for FILION and Brendon van Niejenhuis and Alexandra Heine appeared for the REGISTRAR. Ms. Friedman called 3 witnesses: FILION; Stephane Larocque, a former trainer (LAROCQUE); and Dominique Paré, FILION’S spouse (PARÉ). Mr. van Niejenhuis called Tyler Durand, Senior Manager of Racing at the AGCO (DURAND). Two Exhibits were entered into evidence on consent: Exhibit 1 - Appellant’s Book of Documents and Authorities (ABD); and Exhibit 2 - Registrar’s Book of Documents (RBD).
Following the hearing of evidence and the submissions of counsel, the PANEL reserved its decision and it is now provided with Reasons.
In determining whether a Stay should be granted, Rule 3.6 of the PANEL’S Rules of Procedure provides a three-prong test:
3.6 After hearing the submissions of all parties, the HRAP may grant a stay if the following criteria are met:
a) there are reasonable grounds for the appeal;
b) there would be irreparable harm to the applicant if the stay were not granted; and
c) the balance of convenience favours the granting of the stay.
BACKGROUND and EVIDENCE
FILION is a very successful licensed Standardbred catch driver who earns his living by driving horses for a variety of trainers and owners. While he also holds both a trainer and owner license, he has not been a Trainer of Record for any horse for many years. Over an almost four-decade career, he has won many prestigious awards including four O’Brien Awards, a World Driving Championship Award and he was inducted into the Canadian Horse Racing Hall of Fame in 2024. He estimates that he has had approximately 50,000 drives in his career with over 10,000 wins. He has never had a conviction for any violations of the Rules of Racing except for incidents that occurred during a race. Many letters from highly regarded participants in the Standardbred industry attesting to FILION’S excellent character and skills as a driver were entered into evidence. (Exhibit 1, ABD, Tab 4)
FILION is a member of a famous Standardbred racing family in Canada and is the son of Yves Filion who, at all material times was both directly and indirectly the owner of an excellent Standardbred horse, Funtime Bayama. The Trainer of Record of the HORSE was MOREAU. In 2024, this horse was racing at the top level for three-year-olds in Ontario and FILION was its regular driver.
In June 2024, an out-of-competition blood sample was taken from the HORSE while it was stabled at MOREAU’S premises and this led to a positive test result for the prohibited, non-therapeutic drug Darbepoetin (DPO). This resulted in the suspension of MOREAU for 10 years and the issuance of a monetary penalty of $40,000 among other things. MOREAU has appealed the Ruling and his Appeal has not yet been heard.
Following investigations that included an interview of FILION, the AGCO issued the Ruling referred to above, hence this Motion for a Stay. The Ruling states that FILION had been acting as an actual trainer of the HORSE and, along with MOREAU, was at the material time, actually in charge, custody and/or care of the HORSE in accordance with Rule 26.05 of the Standardbred Rules of Racing.
THE TEST FOR GRANTING A STAY AND THE AUTHORITIES
A Motion for a Stay is not the proceeding in which to determine or deal with the substantive merits of the Appeal. Rather, the issue on this Motion is – what should happen between now and the time when the Appeal is heard?
The first prong of the test set out in Rule 3.6 is to determine whether FILION has established that there are reasonable grounds for his Appeal. The Registrar has conceded this point.
The second prong requires FILION to establish that he will suffer irreparable harm if the Stay is not granted. Ms. Friedman submitted that FILION has suffered and will continue to suffer financial, reputational and emotional harm if the Stay is not granted. And such harm, she argues, cannot be compensated for, should he win his Appeal.
As to financial harm, FILION derived all of his income from catch driving and he now has none. As to reputational harm, publicity about his suspension has been broadly circulated not only in the horse racing media but in the broader media as well. This began with the publication by the AGCO of the details of the Ruling in question (Exhibit 1, ABD, Tab 5). FILION testified that this harm has occurred notwithstanding the letters of support already referred to which indicate that in spite of the Ruling, he is still held in very high esteem. As to emotional harm, FILION and PARÉ testified as to how the Ruling has negatively affected his emotional well-being and that of his family.
There is no doubt that FILION’S financial, reputational and emotional well-being have been adversely affected by the Ruling in question. However, that is a natural consequence of a Ruling such as the one in this case. Whether reputational harm in particular can be somewhat alleviated by the granting of a Stay as Ms. Friedman submitted, is conjectural.
Case law has repeatedly held that financial, reputational and emotional harm are not in themselves grounds for granting a Stay. Rather, they should be taken into account as factors when considering the third prong of the test. Timpano (Re), 2024 CanLII 89005 (ON HRAP); Beaton (Re), 2023 CanLII 127829 (ON HRAP).
Ms. Friedman argued that during the investigation leading up to the Ruling, FILION was denied natural justice and procedural fairness and these are factors that should also be taken into account. She submitted that he was denied an opportunity to defend himself before the Ruling was issued, that he was not told that he could have legal representation when he was interviewed by AGCO Officials, that he has not had full and complete disclosure from the REGISTRAR, that the AGCO officials exhibited bias and favouritism, that the REGISTRAR would not consent to a Stay, and that a Freedom of Information proceeding is pending and should be completed before the suspension continues.
The case law has held that if there were any procedural irregularities, they are cured on an Appeal that is conducted as a hearing de novo so long as procedural fairness and natural justice prevail during the hearing of the Appeal. (McNamara v. Ontario Racing Commission, 1998 CanLII 7144 (ON CA), [1998], 9 Admin. L.R. (3d) 49 (Ont. C.A.) Furthermore, any outstanding complaints in this regard can be raised in the Appeal itself.
Ms. Friedman also referred to other cases where Stays were granted even when a Class 1 prohibited substance was allegedly administered to a horse. In applications for a Stay, other cases as precedents are of limited value in determining whether a Stay should be granted as the outcome in every case depends entirely on its unique circumstances and there are always different circumstances in every case.
The third prong of the test requires a balancing of the convenience as between FILION’S interests on the one hand and the public interest as represented by the REGISTRAR on the other. This PANEL has on numerous occasions followed the precedent set in the case of Livent which held that the second and third prongs should be considered together while the overarching consideration is what result best serves the interests of justice (Livent Inc. (Receiver of) v. Deloitte & Touche, [2016] ONCA 395).
FILION’S interests have been set out above. The principal argument that the REGISTRAR put forward on this prong of the test was that the substance found in the HORSE was DPO. This is a drug that has absolutely no therapeutic value to a horse and when administered, can be dangerous to its health. It is a drug that is simply designed to improve performance. This substance is treated as a Non-Therapeutic Drug in the AGCO’S Guidelines for Penalties, Policy Directive No. 1-2018 and the guidelines suggest a very severe penalty even for a first offence.
Mr. van Niejenhuis submitted that by permitting FILION to participate in the industry prior to the Appeal being heard would damage the public’s confidence in the REGISTRAR’S ability to ensure the welfare of horses. (Beaton (Re), supra). He also argued that granting the Stay and allowing FILION to continue to race would threaten the public’s confidence in the legitimacy of horse racing as an industry because the image of the industry is important to support its economic and social viability.
THE DECISION ON THE MOTION
The issue to be determined on this Motion is whether the potential harm to FILION by not permitting him to continue his privileges until his Appeal is heard is outweighed by the potential harm to the racing industry and to the public interest if the Stay is granted (Czupa (Re), 2012 CanLII 92269).
This is a unique case unlike any other. It is a case where a positive test for DPO has led to the suspension of not only the HORSE’S Trainer of Record but also the suspension of the HORSE’S catch driver. FILION is alleged to have performed acts that are ordinarily done by a trainer while he was performing his duties as a catch driver thereby constituting FILION a trainer of the HORSE as well.
FILION has already been serving a suspension since October 31, 2024, approximately four months-time. Ms. Friedman submitted that the delay in bringing a Motion for a Stay forward was due to the REGISTRAR’S failure to respond to her repeated requests that the REGISTRAR consent to a Stay thereby avoiding the costs of a formal Motion. However, the lack of consent is no reason for FILION not to proceed in a timely manner with an application for a Stay.
After considering all of the factors referred to above, I have concluded that the status quo should remain in place pending the disposition of the Appeal. I accept Mr. van Niejenhuis’s submissions that the balance of convenience favours the REGISTRAR in protecting the public interest and the integrity of racing. In weighing the public interest, in the case of a public authority, the onus of demonstrating irreparable harm to the public interest is lower than that of the licensee (Anglers & Hunters v. Ontario Ministry of Natural Resources, [1990] O.J. No. 1690). For these reasons, I am satisfied that the overall interests of justice are best served by refusing the Stay.
In the result, the Motion for a Stay is dismissed. The PANEL remains available to hear FILION’S Appeal at the earliest date convenient to the parities and I urge them to proceed as expediently as possible.
(Standardbred Canada, with files from CanLii)