CITATION: Ontario (Racing Commission) v. Durham, 2016 ONSC 2490

DIVISIONAL COURT FILE NO.: 425/15

DATE: 20160511

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

DAMBROT, STEWART and THORBURN JJ.

B E T W E E N :

DIRECTOR, ONTARIO RACING COMMISSION

Applicant

– and –

ONTARIO RACING COMMISSION, JEFF DURHAM, RON MACLEAN, JUSTIN ROBSON AND ED HAYTER

Respondents

Brendan van Niejenhuis and Carlo di Carlo, for the Applicant

Benjamin Salsberg, for Hayter

No one appearing for Durham, MacLean and Robson

HEARD: April 28, 2014

M. DAMBROT J.:

[1] Respondents Jeff Durham, Ron MacLean, Justin Robson and Ed Hayter are each trainers licenced by the Ontario Racing Commission (“ORC” or “Commission”). Each of them was responsible for a Standardbred horse that tested positive for isoxsuprine after a race. Isoxsuprine is a vasodilator used for foot problems in horses. It is designated a Class IV controlled substance by the Association of Racing Commissioners International Inc. Its use is not prohibited, but the drug cannot be present in a horse’s system during a race.

[2] Each of the four trainers was found guilty of offences contrary to the Standardbred Racing Rules and penalties were imposed on them by Designated Racing Judges in accordance with the ORC guidelines. In addition to the mandatory disqualification of the horses in question and the redistribution of the purses, the following penalties were imposed:

Durham: a fine in the amount of $1,000 and a fifteen day suspension;

MacLean: a fine in the amount of $1,000 and a fifteen day suspension;

Robson: a fine in the amount of $2,000 and a thirty day suspension;[^1]

Hayter: a fine in the amount of $1,000 and a fifteen day suspension.

[3] On appeal to a panel of the ORC pursuant to Rule 24.01(a) (the “Panel”), the Panel found that each trainer had exercised due diligence, and reduced the penalties for each of the trainers to a fine of $100 and no suspension.

[4] The Director brings this application for judicial review from the decisions of the Panel.

Background

[5] I will elaborate on the background of these offences only briefly.

[6] Each of the four trainers was responsible for a horse that tested positive for isoxsuprine on a single occasion between January 23, 2013 and June 9, 2014. In each case, the trainer conceded that they, or someone under their control, administered the drug to the horse in question. Each of them attended an initial hearing before a Designated Racing judge, and was found to have breached the Standardbred Racing Rules. While the specific rules at issue varied from trainer to trainer, the Director emphasized that the focus of the judicial review is the common finding of guilt in each case for the absolute liability offence created by Rule 26.02.03(c) of being a “trainer whose horse(s) tests positive [for any drug or other substance] resulting from testing in accordance with or under the Pari-Mutuel Betting Supervision Regulations”.

[7] Needless to say, the Standardbred Racing Rules do not prohibit the use of therapeutic drugs for race horses. Trainers are permitted to administer therapeutic drugs to their horses; however, they are obliged to ensure that when their horses participate in a race, they are free of these drugs.

[8] The Canadian Pari-Mutuel Agency (“CPMA”) is a federal body responsible for regulating the use