Richard Moreau appeal hearing begins with questions of ‘insufficient integrity’ on testing sample
by Melissa Keith
On Wednesday (Dec. 10), the long-awaited Ontario Horse Racing Appeal Panel (HRAP) hearing of Richard Moreau got underway. On Oct. 31, 2024, the Alcohol and Gaming Commission of Ontario (AGCO) issued a ruling that Moreau, a 10-time O’Brien Award Trainer of the Year (2013-22 inclusive), and driver Sylvain Filion were each facing a 10-year suspension and $40,000 fine in relation to out-of-competition drug testing that detected darbepoetin alfa (DPO) in blood samples taken from gelding Funtime Bayama on June 10, 2024.
Moreau and Filion have been sidelined since the decision, although Filion, a four-time O’Brien Driver of the Year (2012, 2013, 2015, 2016), made multiple requests for a stay, which was ultimately denied on March 19, 2025.
Counsel for the registrar Brendan van Niejenhuis noted that Sylvain Filion’s case is “another ruling that has been issued and is also under appeal.” He noted that “a reflexive pre-hearing… occurred in August of this year” to consider whether a joint hearing pertaining to the scientific facts of the Funtime Bayama tests and analysis could take place.
“A joint hearing possibility has not been taken up, both due to certain professional indisposal of Mr. Sylvain Filion’s counsel Jennifer Friedman, as well as the absolute rights of both parties,” said van Niejenhuis.
Jean-Marc MacKenzie, the counsel for the appellant, advised that “the ‘B’ sample [of blood taken from Funtime Bayama]… would have to be part of the next phase of the hearing and brought into that, because we’re exploring the possibility of doing [i.e. testing] that sample 17 months later.”
He argued that the high expectations of regulatory compliance placed upon racing participants were not matched by a comparable level of adherence to out-of-competition collection and testing protocols by AGCO inspectors and BV (formerly Bureau Veritas Labs) of Burnaby, BC.
The first witness in the Dec. 10 appeal hearing was Catherine Scarth, senior team leader of the confirmatory team at LGC Laboratories, Fordham, UK. Registrar’s counsel Alexandra Hein inquired about how the lab came to receive samples of 10 to 12 ml of plasma from Funtime Bayama for confirmatory testing. She stated that two tubes were sent by FedEx from BV Labs, BC on July 8, 2024, that they were received at LGC Labs on July 10, 2024, and that results were to be given directly to the AGCO.
Scarth testified that the samples arrived in compromised condition. Quoting from a July 10, 2024 email she had sent to LGC drug surveillance manager Katy Lubbock, as well as LGC laboratory director for animal sports testing Dr. James Scarth, AGCO senior manager of regulatory compliance for racing Tyler Durand, supervisor research services at Bureau Veritas Laboratories Devan Loganathan and AGCO manager veterinarian services Dr. Pamela Chesterfield.
“First of all, I’m communicating that we received the sample,” Scarth said. “I’m giving sort of a formal sample receipt… I am then also attaching photos of the sample, from when it was received, and describing how it was received. So I mentioned it was received in a bubble-wrap bag within a polystyrene box, and it wasn’t received in any security bag or other tamper-proof or evident layer, and therefore we have then flagged that as a sample discrepancy on the sample receipt that was attached.
“The £2,985 price for the analysis was not based on the outcome of the test.”
Scarth told Hein that she marked a receipt to indicate the Funtime Bayama samples had “insufficient integrity” because “there was no sort of bag or seal that had a tamper-proof or tamper-evident layer present.”
Scarth stated that the sample had been stored in a freezer, and defrosted before arrival at her lab, which intended to freeze it again before starting the three-to-four day testing process. She confirmed that the sample was physically suitable for analysis, and that horse and trainer were anonymized in the sample’s identification number.
MacKenzie questioned Scarth about testing standards, impartiality, and chain of custody.
“Aren’t you concerned with the integrity of the sample that you received?” MacKenzie asked Scarth.
“Any concern that we had was raised with the regulator [AGCO] and the [Bureau Veritas, BC] laboratory before we started the analysis,” said Scarth.
AGCO racing inspector Brian Nagano was the next witness for the registrar. Van Niejenhuis asked him about official testing cards for Funtime Bayama, which were signed by assistant trainer Justin Turcotte and not Moreau himself.
“[Turcotte] signed it to say that he witnessed that the [blood] samples were there, that they were done,” said Nagano. “Basically by signing on there, he’s confirming the information that’s within the card.”
Nagano said he spoke with Moreau before leaving the trainer’s Hamilton, ON farm.
“The samples were already completed and we were just about to leave, and we saw [Moreau] down in the parking lot, and we talked to him then.” Nagano said the discussion touched on Moreau’s retirement. Nagano said the samples were locked in a cooler within his locked car during a subsequent stop for lunch, and there was no sign of tampering. He said the cooler and a bag of horse hair was deposited in his home office overnight, with cold packs in the cooler changed periodically and materials never being left out in the open. He shipped it in a locked cooler to BV via Purolator on June 11, 2024.
MacKenzie questioned Nagano about whether AGCO equipment was used to collect five vials of blood from Funtime Bayama. The inspector confirmed it was.
“I did not talk to the owner or trainer, however we did get the assistant trainer,” said Nagano. “I did try to contact the trainer [Moreau] when we initially arrived, and I did not see him when we got there. So again, when I got there, we went in through the gate. We introduced ourselves through the speaker, but I didn’t hear any response.”
He said he saw two men who told him Moreau was “out in the field.”
MacKenzie asked whether Nagano had tried to locate Moreau at that point.
“Well, not initially… But we are able to use a designate,” replied the inspector, adding that he disagreed with MacKenzie’s interpretation of the rules on collecting samples when an owner or trainer is not present. “What I can tell you is that I saw him when the horse was in crossties,” said Nagano. “When I looked up, I could see [Moreau]… a few stalls down.”
MacKenzie inquired about how 13 horses were selected for out-of-competition testing over the two days that included Funtime Bayama.
“So is it your understanding that you tested all of the horses in the North America Cup and the Fan Hanover?” he asked.
“The Canadian horses, yes,” Nagano said. “I’d have to go through my notes for the Americans. The horses for this particular race were decided based on who qualified for the final race.”
He said it would “take some time” to look up the records of which horses were tested, if required.
Three other witnesses, Emily Green, Dr. Pamela Chesterfield, and Dr. James Scarth, answered questions remotely as the Zoom hearing continued on Thursday (Dec. 11). Tyler Durand and Devan Loganathan were the last witnesses to present evidence in the initial phase of the Moreau appeal hearing, on Friday, (Dec. 12). Their statements will be summarized in next week’s column.
Looking ahead on Friday, HRAP chair Stanley Sadinsky said, “What seems very clear to me is that we’re not going to complete this part of the appeal in the three days that have been set aside. Therefore, we’re going to have to be looking for other days later on to complete this part of the appeal… I’m not sure when we’re talking, probably in the new year, and hopefully early in the new year, for further dates, should they be needed. If a miracle happens and we finish in three days, so be it, but in my judgement, that’s not going to happen.”
