ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
jennings, gans and coats jj.
B E T W E E N:
ANTHONY MONTINI
Applicant
- and -
ONTARIO RACING COMMISSION
Respondent
Ronald B. Moldaver, Q.C., for the Applicant
Brendan Van Niejenhuis, for the Respondent
HEARD at Toronto: September 20, 2007
Oral Reasons for Judgment
jennings J.: (Orally)
1The charges against the applicant emanate from Rules 9.09(b) and 26.02.01 of the Rules of Standard Bred Racing. It is agreed that the test created is one of strict liability.
2In a strict liability offence, the onus is on the accused to establish on a balance of probabilities that he took all reasonable steps to avoid committing the offence.
3The Commission found on the balance of probabilities that ingestion of the drug took place whilst the horse was in retention in an approved secure facility operated by the race track.
4There was ample and uncontradicted evidence as to the security of the retention programme. The applicant gave evidence of his compliance with the retention facilities procedures and of his care of the horse in the days prior to it going into retention. There was no suggestion or finding that the applicant administered or caused to be administered the drug in question.
5There was no finding by the Commission of any conduct of the applicant that fell below any reasonable standard to which he was bound to comply. Rather, the Commission simply stated its conclusion that the applicant’s appeal failed. This conclusion, unsupported by any reasons, is not helpful, and worse, would suggest that the Commission applied a standard of absolute, rather than strict liability.
6Deference is due to the Commission’s expertise in assessing the evidence before it, but there must be some evidence to support a conclusion that there was a lack of reasonable care. Here, the Commission could point to none. There being no evidence to support its conclusion, the conclusion cannot stand. (see Whelan v. ORC (Ont. Div. Ct.) (1989) O.J. 1454).
7The application is allowed. The decision of the Commission and the penalty imposed are quashed, except that the results of the race and the distribution of the purse shall remain as previously ordered.
8I endorse the Record: “The application is allowed for oral reasons delivered today. Costs to the applicant fixed at $5,000 plus GST and disbursements.”
JENNINGS J.
GANS J.
COATS J.
Date of Reasons for Judgment: September 20, 2007
Date of Release: September 24, 2007
COURT FILE NO.: 182/07
DATE: 20070920
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
jennings, gans and coats jj.
B E T W E E N:
ANTHONY MONTINI
Applicant
- and -
ONTARIO RACING COMMISSION
Respondent
ORAL REASONS FOR JUDGMENT
JENNINGS J.
Date of Reasons for Judgment: September 20, 2007
Date of Release: September 24, 2007