Citation: Director, Ontario Racing Commission v. Ontario Racing Commission, 2016 ONSC 3312

DIVISIONAL COURT FILE NO.: 426/15 DATE: 20160516

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

MORAWETZ R.S.J., C. HORKINS AND VARPIO JJ.

BETWEEN:

DIRECTOR, ONTARIO RACING COMMISSION Applicant

– and –

ONTARIO RACING COMMISSION, ANTHONY MACDONALD and CHRISTOPH GROSSENBACHER Respondents

Brendan van Niejenhuis and Benjamin Kates, for the Applicant Robert B. Burgess, for the Respondent, Anthony MacDonald

HEARD at Toronto: May 16, 2016

C. HORKINS J. (ORALLY)

[1] The Director of the Ontario Racing Commission seeks judicial review of a decision of a Commission panel of the Ontario Racing Commission (“Panel”) dated April 30, 2015. The Director argues that the Panel acted unreasonably because it: (1) applied a “standard of care” defence for an absolute liability offence; (2) failed to provide reasons with sufficient transparency to enable proper appellate review.

[2] The Director is withdrawing its application for judicial review as it relates to the respondent Christoph Grossenbacher.

[3] The Court’s jurisdiction flows from ss. 2 and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1. Pursuant to those provisions, the Divisional Court has jurisdiction to grant any relief that an applicant would be entitled to in:

(1) Proceedings by way of an application for an order in the nature of mandamus, prohibition or certiorari, or;

(2) Proceedings by way of an action for a declaration or for an injunction or both in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.

[4] In reviewing a decision where the administrative tribunal applied or administered its home statute or rules, as in this case, the standard of review is presumed to be reasonableness. See McLean v. British Columbia (Securities Commission) 2013 SCC 67, 2013 S.C.C. 67, [2013] 3 S.C.R. 895 at paras. 21-22; Alberta v. (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, 2011 S.C.C. 61 [2011] 3 S.C.R. 654 at para. 34; Dunsmuir v. New Brunswick, 2008 SCC 9, 2008 S.C.C. 9. at para. 54 and Shakes v. Ontario Racing Commission, 2013 ONSC 4229 at para. 21.

[5] The Panel’s decision exonerated the respondent Anthony MacDonald for an absolute liability offence on the basis of a standard of care defence. The Director submits that the Panel acted unreasonably in applying a standard of no negligence to a rule that unambiguously prescribes one of absolute liability. We agree.

[6] The appeal in question overturned a decision of the track judges (the “Judges”) arising out of a positive drug test by the horse Stonebridge Rich (the “Positive Test”). The respondent Mr. MacDonald was the trainer of Stonebridge Rich and Dr. Grossenbacher was the veterinarian who attended to the horse’s care. Stonebridge Rich placed first in a race on November 21, 2014. The horse then tested positive for mepivacaine, a local anesthetic and Class II, drug pursuant to the Pari-Mutuel Betting Supervision Regulations. The uncontradicted evidence is that Dr. Grossenbacher administered that drug to Stonebridge Rich fifty-seven hours prior to the test on November 19, 2014, in order to stitch a cut on the animal’s stifle. The Positive Test occurred notwithstanding that the Canadian Pari-Mutuel Agency (“CPMA”) guidelines indicate that that mepivacaine will normally exit a horse’s system after forty-eight hours.

[7] Following an investigation and hearing, the Judges found that Mr. MacDonald and Dr. Grossenbacher had contravened a member of Rules of Standardbred Racing, 2008 (the “Rules”) relating to drug violations. In particular, the Judges found that Mr. MacDonald violated rule 26.02.03 – a rule that expressly imposes an absolute liability standard. The Judges found that any reliance on the CPMA guidelines was not relevant to liability and only to penalty.

[8] Mr. MacDonald and Dr. Grossenbacher appealed the Judges’ ruling, which appeals were heard together on a de novo basis by the Panel on July 7, 2015. The Panel allowed both appeals by way of oral reasons, immediately delivered after the hearing. The Panel’s brief reasons show that they found that no rule violations occurred because the respondents took all reasonable steps to avoid the Positive Test. The Panel placed specific reliance on the evidence of a fact witness, Chris Robson as to the standard of care.

[9] There is no dispute on the key facts: that the horse in question was treated with mepivacaine, that fifty-seven hours after this drug was administered the horse place first in a race at Woodbine Race Track and that following the race the horse tested positive for this drug.

[10] We conclude that the Panel’s decision was unreasonable because they ignored the clear direction and the rules that this is an absolute liability offence. Rule 26.02.02 creates the offence:

Any trainer who fails to protect or cause any horse trained by him to be protected and a positive drug test thereby results or who otherwise violates this rule shall be guilty of an offence.

[11] Central to the application is the interpretation of Rule 26.02.03 which imposes absolute liability on trainers in specified situations. It states in part:

Notwithstanding 26.02.01, the Commission and all delegated officials shall consider the following to be absolute liability offences: …

(c) any trainer whose horse(s) test positive resulting from testing in accordance with or under the Pari-Mutuel Betting Supervision Regulations.

[12] When an offence is one of absolute liability, liability flows automatically from proof the accused did the prohibited act. In such circumstances, the fact that all reasonable care was taken will not excuse an individual upon establishment of the act of a contravention. This is supported by the Supreme Court of Canada’s decision in R. v. Sault Ste. Marie, 1978 11 (SCC), 1978, 2 S.C.R. 1299, at p. 1310:

In sharp contrast, “absolute liability” entails conviction on proof merely that the defendant committed the prohibited act constituting the actus reus of the offence. There is no relevant mental element. It is no defence that the accused was entirely without fault. He may be morally innocent in very sense, yet he branded as a malefactor and punished as such.

[13] Mr. MacDonald’s defence that he reasonably relied on both the advice of the veterinarian, Dr. Grossenbacher and the CPMA Guidelines, was one of due diligence. He took all reasonable steps to avoid the Positive Test. Plainly, that defence is not relevant when considering the absolute liability under Rule 26.02.03. Our interpretation of this Rule and our decision that the Panel’s decision was unreasonable is consistent with how this Court has interpreted these rules in the past and in particular, we rely on Shakes v. Ontario Racing Commission, 2013 ONSC 4229 (Div. Ct.). and the recent decision of this Court in Ontario (Racing Commission) v. Durham, 2016 ONSC 2490.

[14] In summary, we order that the decision of the Ontario Racing Commission dated July 14, 2015, be set aside respecting the appeal of Anthony MacDonald heard on June 16, 2015. We issue an order restoring the ruling of the Judges at Woodbine Race Track finding that Anthony MacDonald violated Rules 9.09(b), 26.02.01 and 26.02.03(c) of the Rules of Standardbred Racing.

[15] We now turn to the issue of penalty. The Commission asks that this Court remit the matter of penalty back to the Horse Racing Appeal Panel for determination. The respondent, Mr. MacDonald requests that the Court exercise its jurisdiction today to deal with the penalty. We agree, that pursuant to our jurisdiction under the Judicial Review Procedure Act and our inherent jurisdiction, that we have the jurisdiction to deal with penalty.

[16] The respondent asks that we order no fine and no suspension and that the horse’s finish and disqualification from the race not be disturbed. This would be the sole penalty. We accept that this is a reasonable and appropriate penalty for the following reasons.

[17] We acknowledge that the Panel found that the trainer and veterinarian followed the CPMA Guidelines for treatment to deal with the horse’s injury. The evidence was that the drug should have exited the horse’s system within forty-eight hours. Further, the veterinarian advised Mr. MacDonald that there was no medical reason why the horse could not race on the day in issue.

[18] As well, the total value of the purse was $15,000 and the trainer’s share would have been minimal.

[19] In all of the above circumstances, it is best to deal with penalty, now rather than causing Mr. MacDonald further expense by sending this issue back for a rehearing hearing before the newly constituted Horse Racing Appeal Panel. The Director acknowledges that our decision to deal with penalty today, as we have, is not unreasonable.

[20] In summary, there will be no fine and no suspension. The horse’s finish and disqualification from the race, as previously ordered, will not be disturbed. In the circumstances of this case, we make no order as to costs

COSTS

MORAWETZ R.S.J.

[21] I have endorsed the Application Record, “For oral reasons provided today, application withdrawn in respect of Dr. Christoph Grossenbach. Application in respect of Mr. Anthony MacDonald is granted. No penalty imposed on Mr. MacDonald. No order as to costs.”

___________________________ C. HORKINS J.

MORAWETZ R.S.J.

M. VARPIO J.

Date of Reasons for Judgment: May 16, 2016

Date of Release: May 25, 2016

CITATION: Director, Ontario Racing Commission v. Ontario Racing Commission, 2016 ONSC 3312

DIVISIONAL COURT FILE NO.: 426/15 DATE: 20160516

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MORAWETZ R.S.J., C. HORKINS AND VARPIO JJ.

BETWEEN:

DIRECTOR, ONTARIO RACING COMMISSION Applicant

– and –

ONTARIO RACING COMMISSION, ANTHONY MACDONALD and CHRISTOPH GROSSENBACHER Respondents

ORAL REASONS FOR JUDGMENT

C. HORKINS J.

Date of Reasons for Judgment: May 16, 2016

Date of Release: May 25, 2016