CITATION: Pascoe v. Horse Racing Appeal Panel, 2020 ONSC 6227
DIVISIONAL COURT FILE NO.: 73/20 DATE: 20201015
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Swinton, Backhouse and Labrosse JJ.
BETWEEN:
JASON PASCOE
Howard C. Cohen, for the Applicant
Applicant
– and –
HORSE RACING APPEAL PANEL and THE REGISTRAR OF ALCOHOL, GAMING AND RACING
Rob Sidhu, for the Respondents
Respondents
HEARD (by videoconference): October 5, 2020
Swinton J.:
Overview
[1] The applicant Jason Pascoe seeks judicial review of a decision of the Horse Racing Appeal Panel (the “Panel”) dated January 15, 2020. The Panel dismissed an appeal from a decision finding that he had violated the Rules of Thoroughbred Racing because a horse he had trained tested positive for the presence of a banned substance, but it varied the penalty to reduce the 15 day suspension imposed to seven days.
[2] For the reasons that follow, I would dismiss the application, as the decision of the Panel was reasonable.
Background
[3] The applicant is a trainer of racehorses who is licensed by the Alcohol and Gaming Commission of Ontario. Following a race on October 1, 2018, one of his horses, Arising Miracle, tested positive for the drug Clenbuterol. The positive test resulted from enhanced urine testing. However, the horse was tested after other races around the same time period without a positive result for the drug.
[4] In November 2018, Commission Stewards found that the applicant had contravened Rule 15.06.03 of the Rules of Thoroughbred Racing (found in Chapter 15: Misconduct, Needles, Syringes and Searches). That rule creates an absolute liability offence for “[a]ny trainer whose horse(s) tests positive for any substances determined to be non-therapeutic”. Additionally, Quarter Horse Directive No. 1-2015: Enhanced Testing for Clenbuterol (“the Directive”) deems it a violation of the Rules “where Clenbuterol is detected at any level in either urine or blood”. The Stewards imposed a 15 day suspension and a $500 fine.
[5] On appeal to the Panel, the applicant did not contest the validity of the certificate of positive analysis nor dispute the positive finding with respect to Clenbuterol. However, he argued that the amount of the drug detected was minimal and would not have enhanced the performance of the horse. He testified that he had never administered the drug to the horse, nor had his veterinarian ever prescribed it. Accordingly, he submitted that the application of the rule should be waived.
[6] The Panel stated that it could find no fault on the part of the applicant. The horse had started training with him in the summer of 2018, and the Panel concluded that the drug had likely been administered months before the applicant had custody of the horse, and that it was not administered by him. However, the Panel recognized that the rule respecting a positive test for Clenbuterol creates an absolute liability offence and concluded that it had no authority to waive the rule. It dismissed the appeal but varied the penalty to a suspension of seven days and a $500 fine in the circumstances.
The Standard of Review
[7] Both parties agree that the standard of review in this application for judicial review is reasonableness.
Analysis
[8] The applicant argues that the Panel erred in imposing a penalty after finding that he was not at fault for the positive drug test. He submits that he did not do the prohibited act – that is, provide Clenbuterol to the horse. Therefore, he submits that a finding of liability was unreasonable, and the Panel should have exercised its powers pursuant to s. 8(2) of the Horse Racing Licensing Act, 2015, S.O. 2015, c. 38, Sch. 9 (the “Act”) and waived the application of the rule.
[9] The Panel rejected the argument that it had the power to waive the application of the rule. That was a reasonable, indeed a correct, conclusion by the Panel. Subsection 8(2) of the Act deals with the powers of the Panel on an appeal. It states:
On hearing the appeal, or without a hearing if the circumstances referred to in section 4.1 of the Statutory Powers Procedure Act apply, the Panel may confirm or vary the decision being appealed or set it aside.
[10] Subsection 8(2) deals with powers on an appeal. It does not give the Panel the power to waive a rule, as the Panel noted in its reasons in the present case (at p. 5). This is in contrast to the previous regulatory regime where the Ontario Racing Commission did have the power, under Rule 24.3, to waive a rule (see, for example, Cappuccitti (Re) at paras. 37 and 57).
[11] The applicant relies on a statement in Rombis (Re), made by the vice chair who also presided in the present case. In the course of a discussion of the admissibility of an expert’s evidence, the Panel stated (at para. 41(k)),
Further, the Panel asserts that where appropriate the Panel may invoke Section 8.2 of the Horse Racing License Act and Section 4 of the Statutory Powers Procedure Act to do what is right in the circumstances of a particular case.
There was no further discussion of s. 8(2) in the reasons, so it is unclear what the Panel meant in Rombis. The Panel rejected Ms. Rombis’ submission that her horse tested positive because of environmental contamination (at para. 54) and, given her history and lack of due diligence, it upheld a suspension of 245 days.
[12] The applicant argues that there is an inconsistency in finding him liable when he was found not to have administered the drug. Moreover, he submits that the amount found in the horse’s system was insignificant and would not have affected performance in the race. Finally, he suggests that the positive test might have resulted from environmental contamination.
[13] The applicant’s argument ignores the fact that Rule 15.06.03 creates an absolute liability offence when a horse tests positive for any amount of Clenbuterol in the system. Significantly, Quarterhorse Directive 1-2015 provides that “any sample where Clenbuterol is detected at any level in either urine or blood, will be deemed to be a violation of the Rules of Thorougbred Racing” (emphasis added). There is no defence of due diligence available to contest a finding of liability, as it is the fact that the horse tested positive that creates the offence and not the administration of the drug.
[14] In the present case, there was a positive test, and the applicant did not challenge the validity of the test at the hearing. The applicant did not satisfy the Panel that there had been environmental contamination of the test. Accordingly, the Panel reasonably found that liability had been established.
[15] The Panel’s decision was consistent with the decisions of the Divisional Court in Shakes v. Ontario Racing Commission, 2013 ONSC 4229; Ontario (Racing Commission) v. Durham, 2016 ONSC 2490 (at para. 34) and Director, Ontario Racing Commission v. Ontario Racing Commission, 2016 ONSC 3312 (at para. 13). Those cases have also held that due diligence is a relevant consideration in determining the appropriate penalty, but not liability.
[16] The Panel’s decision was consistent with the earlier decision in Rombis. There, as here, the Panel asked itself whether the penalty was appropriate in the circumstances. The Panel in Rombis ultimately upheld a 245 day suspension and a monetary penalty of $5,000.
[17] In contrast, in the present case, the Panel considered the applicant’s due diligence and good character as important factors in determining the appropriate penalty. However, it was also well aware that this was an absolute liability offence. Given the applicant’s apparent lack of fault and the steps he had taken to safeguard the horse, the Panel intervened to reduce the original suspension from 15 days to seven days. Its approach was consistent with past jurisprudence.
[18] This Court owes deference to the Panel in determining the appropriate penalty. The applicant has not demonstrated that the penalty is unreasonable.
Conclusion
[19] Accordingly, the application for judicial review is dismissed. Costs to the respondent are fixed in the agreed amount of $7,500.00 all inclusive.
___________________________ Swinton J.
I agree
Backhouse J.
I agree
Labrosse J.
Date of Release: October 15, 2020
CITATION: Pascoe v. Horse Racing Appeal Panel, 2020 ONSC 6227
DIVISIONAL COURT FILE NO.: 73/20 DATE: 20201015
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Backhouse and Labrosse JJ.
BETWEEN:
JASON PASCOE
Applicant
– and –
HORSE RACING APPEAL PANEL and THE REGISTRAR OF ALCOHOL, GAMING AND RACING
Respondents
REASONS FOR JUDGMENT
Swinton J.
Date of Release: October 15, 2020