Court File and Parties
DIVISIONAL COURT FILE NO.: 331/13
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SWINTON, J. MACKINNON AND LEDERER JJ.
BETWEEN:
RENE ALLARD Applicant
– and –
ONTARIO RACING COMMISSION Respondent
COUNSEL: D. Larry Todd, for the Applicant Luisa J. Ritacca, for the Respondent
HEARD at Toronto: January 13, 2015
Oral Reasons for Judgment
SWINTON J. (ORALLY)
1We would not give effect to the argument based on a denial of procedural fairness, particularly given the applicant’s concession at the outset of the hearing that he was not relying on technical arguments about testing and his failure to request disclosure at the time he learned of the research studies.
2It is clear from the reasons for decision that the Commission relied on the understanding that “furosemide” is a Class V drug, within the meaning of the Uniform Classification Guidelines for Foreign Substances (see paras. 1, 5 and 12 of the reasons) and imposed a penalty on the basis of that understanding (see para. 58 of the reasons).
3Pursuant to Rule 9.08.02 of the Rules of Standardbred Racing:
Upon a finding of a violation of the positive test rules, the Judges shall consider the classification level of the violation as currently established by the Uniform Classification Guidelines as promulgated by the Association of Racing Commissioners International, Inc., or any other guidelines established by the Commission.
The classification from the Uniform Classification Guidelines is significant because the Ontario Racing Commission Penalty Guidelines recommend penalties based on the class of drug ranging from Class I to Class V, with Class V, the least severe.
4The drug furosemide is not a Class V drug in the Uniform Classification Guidelines, although there is a recommended penalty for overage that is significantly below the Penalty Guideline of the Commission for Class V violations. There is no analysis in the Commission’s reasons as to why furosemide should be treated as if it were a Class V drug.
5The standard of review of the Commission’s penalty decision is reasonableness, and the Commission has a broad discretion in setting penalty. However, the penalty decision here is not reasonable, based as it is on an error in the classification of furosemide. Even if the Commission might have the discretion to treat furosemide as analogous to a Class V drug, it has an obligation to explain and justify that conclusion (see para. 47 of Dunsmuir v. New Brunswick, 2008 SCC 9).
6In our view, the penalty has not been adequately explained and justified. Therefore, the application for judicial review is granted. The penalty is set aside and the issue of penalty is referred back to the Commission for re-determination.
COSTS
7I have endorsed the Application Record, “This application is granted and the penalty is set aside and the penalty referred back to the Commission for oral reasons delivered today. Costs to the applicant are set at $6,000 plus HST, as agreed by the parties.”
SWINTON J.
J. MACKINNON J.
LEDERER J.
Date of Reasons for Judgment: January 13, 2015
Date of Release: February 4, 2015
CITATION: Allard v. Ontario Racing Commission, 2015 ONSC 260
DIVISIONAL COURT FILE NO.: 331/13
DATE: 20150113
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SWINTON, V. J. MACKINNON AND LEDERER JJ.
BETWEEN:
RENE ALLARD Applicant
– and –
ONTARIO RACING COMMISSION Respondent
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: January 13, 2015
Date of Release: February 4, 2015