COURT FILE NO.: 79/05

DATE: 20051222

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

LANE, GREER AND LAX JJ.

B E T W E E N:

WESCOTT LLC and DAVID JANNONE

Applicants

• and -

ONTARIO RACING COMMISSION

Respondent

Elliot Berlin, for the Applicants

Brendan Van Niejenhuis, for the Respondent

HEARD: December 22, 2005

LANE J.: (Orally)

1This is an application for judicial review of the decision of the Ontario Racing Commission, dated December 15, 2004.

2The horse, Wescott, was disqualified as a result of testing positive for a prohibited drug which we will call "HCT". Mr. Jannone, the horse's trainer was found to have failed to take the requisite steps under the trainer's responsibility rule which is part of the rules of standardbred racing in the 2003 version. Specifically, he was found to have violated Rule 26.02 and 9.09(b) and was fined $1,000 and suspended for 15 days.

3As a result of the horse's disqualification from its first place finish in the race in question, the purse was redistributed, thus penalizing the owner. These findings were initially made by the race judge and were upheld by the Commission.

4Turning to the relevant rules, Rule 26.02 provides in part:

A trainer shall be responsible at all times for the condition of all horses trained by him/her … no trainer shall start a horse … if by the exercise of a reasonable degree of care he/she might know or could have reason to believe that the horse has received any drug that could result in a positive test.

5Rule 9.09(b) provides:

Any person is guilty of an offence who … enters a horse in a race, allows or authorizes a horse to compete in a race that has been administered any drug which results in a positive test.

6Rule 9.02.1 provides:

A certificate of positive analysis of an official sample … in the absence of evidence to the contrary, is proof of the statements contained in the certificate.

7The background is that on October 31, 2002, Wescott performed poorly in a race and was subsequently placed on a treatment plan that included the administration of a combination of drugs, one of which was naquasone.

8At the time of this decision and at the time of the race in question, it was not known that naquasone could result, through the process of metabolism, in the detection of HCT in a horse's urine. In the present case, the medications, including naquasone, were administrated on the day before the race. After the race, the horse was taken at once to be tested and the sample was taken by Ms. Courtemanche.

9As a result of the test, a certificate was issued stating that HCT was found. There is no evidence to the contrary in the sense that no one testified that there was no HCT in the sample.

10There are three possible explanations for the presence of HCT in the sample. First, it might have been there because it was deliberately administered to the horse as a performance enhancer. Second, it might have been there because the sample was contaminated by Ms. Courtemanche when she took it. Third, it might have been there because of the administration of a group of medications including naquasone. As noted, HCT is a product of the metabolism of naquasone.

11The evidence about contamination was essentially that of Ms. Courtemanche. She resides in a two-household residence and in the other household there is a gentleman who was receiving medication for high blood pressure, in which medication HCT is an ingredient. The evidence was that there is no common area shared by the two households except the kitchen and that the gentleman did not store his medication in the kitchen.

12Ms. Courtemanche tested a second horse called Admiral's Express right after her inspection of Wescott. That horse also tested positive for HCT.

13Dr. Weber testified that the administration of naquasone could give rise to the presence of HCT in a horse's urine but that this fact was not scientifically known at the time of the race. He also testified that the amounts which he understood had been given to Wescott by her veterinarian would not have given rise to the quantity of HCT found after the race.

14Dr. Barker was called by the applicant and he gave a quite impressive analysis of why the presence of HCT in the urine was either consistent only with or at the least consistent with the more probable view that the HCT came from contamination.

15The problem with that analysis is that it really does not take into account the actual evidence of Ms. Courtemanche as to how she took the sample and as to the living arrangements. The Commission rejected the evidence of Dr. Barker and preferred to rely upon the evidence of Dr. Morrissey who testified that the presence of HCT could be accounted for either by contamination or by administration.

16In our view, there is on the facts testified to by Ms. Courtemanche, no air of reality to the proposition that the HCT got into this horse's urine from contamination from her hands.

17In our view, there was ample support in the evidence for the Commission to reject Dr. Barker's view.

18Turning for a moment to the standard of review, the Court of Appeal in McNamara v. Ontario (Racing Commission) (1998), 164 D.L.R. (4th) 99, found that the Commission was a specialized tribunal and entitled to judicial deference and therefore when it acts within its jurisdiction, the standard of review was patent unreasonableness or clear irrationality. In terms of questions of law, the appropriate standard is correctness. However, the major issue here is the weighing of the evidence as to the reasons why the HCT got into the horse's urine and that is a patently unreasonable standard.

19The Commission's consideration of the position of Mr. Jannone and its finding that he failed to exercise reasonable care was essentially based on the fact that he did not keep adequate medical records including the quantities, times and routes of administration of medication. There was evidence to support this finding and the failure to keep such records is a breach of Rule 3.09.1(f) and breached therefore of the standard of care.

20The applicants suggested that the Commission had applied a standard of absolute liability in considering Mr. Jannone's position but with respect it seems to us that his conduct was a simple breach of the rule and that the Commission applied the correct test to what he did.

21It was submitted to us that certain questions asked by the Chair of Mr. Jannone were unfair. It was suggested that they were designed to draw him into a situation of testifying against himself.

22With respect, we do not see these questions in the same light that counsel submitted. The questions are seen by us as the Chair seeking to understand the evidence and not as indicating any prejudgment on the part of the Chair. The asking of questions by judges or tribunals, in the course of the giving of evidence is a recognized right of the tribunal to clarify the evidence and to understand exactly what is being asserted. While it is possible, as the cases show, for such questioning to descend into badgering, or worse, the duty of the Court is to determine whether the questioning in any given instance has destroyed the fairness of the proceeding and in our view, these questions did not have that result.

23It follows from all of the above that the application must be dismissed.

24Based on the agreement of counsel, costs will follow the event in the amount of $8,000.00, all inclusive.

LANE J.

GREER J.

LAX J.

Date of Reasons for Judgment: December 22, 2005

Date of Release: January 17, 2006

COURT FILE NO.: 79/05

DATE: 20051222

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT