IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c. 20

AND IN THE MATTER OF THE APPEAL OF

STANDARDBRED OWNER/DRIVER/TRAINER JACK HARRIS

By Ruling SB 13/2000, the Ontario Racing Commission suspended Standardbred trainer John (Jack) Harris for 60 days and fined him the sum of $5,000 when his horse CMON CMON tested positive for the Class V drug FUROSEMIDE after the 3^rd race at Flamboro Downs on October 30, 1999. Mr. Harris made application for judicial review of the Ruling. The Superior Court of Justice (Divisional Court) ordered on January 24, 2001 that the issue of penalty was remitted to the Ontario Racing Commission for rehearing.

On September 26, 2001, Vice-Chair Bryant, Commissioner Patricia Bullock and Commissioner Ernest Nock of the Ontario Racing Commission convened to hold the rehearing on penalty.

D. Larry Todd appeared on behalf of Mr. Harris and Counsel Don Bourgeois appeared for the Administration.

A motion was brought by Mr. Harris with respect to, among other things, the jurisdiction of the panel to hold the rehearing on penalty. The Notice of Motion set out several grounds for relief. Upon hearing submissions on behalf of the parties, the Commission denied the relief sought in paragraphs (a), (b), (c), (d), (e) and (f) of the Notice of Motion.

The Commission, pursuant to the order of the Divisional Court, held the rehearing on penalty and heard submissions on behalf of the parties. The Commission imposed a penalty of a full suspension of 74 days and a fine of $1,000. In consideration for the relief sought in paragraph (g) of the Notice of Motion, the Commission ordered that the suspension commence 40 days from October 1, 2001, with the fine payable on or before the expiration of the suspension.

The Commission provided written reasons, a copy of which is attached.

DATED at Toronto this 1^st day of October, 2001.

BY ORDER OF THE COMMISSION ___________________________

Jean Major

Executive Director

REASONS FOR DECISION

On September 26, 2001, this panel of the Ontario Racing Commission (ORC) convened to rehear the issue of penalty which had been remitted to the ORC by Order of the Superior Court of Justice (Divisional Court) dated December 12, 2000.

The Court Ordered that the Order and Ruling of the ORC dated January 28, 2000, be quashed and that the issue of penalty be remitted to the ORC for rehearing.

The facts of this matter can be summarized as follows:

On November 18, 1999, the Judges at Flamboro Downs Raceway, issued Ruling Number SB 22804 suspending Owner/Driver/Trainer Jack Harris for 60 days (November 24, 1999 to January 22, 2000, inclusive) and fined him the sum of $5,000 for violation of Rules 9.09(a) & (b) and 26.02 of the Rules of Standardbred Racing as a result of a positive test for the drug FUROSEMIDE taken from the horse CMON CMON which raced in the 3^rd race on October 30, 1999, at Flamboro Downs Raceway. CMON CMON finished second, was disqualified and was deemed ineligible to be declared to or start in any race for 30 days.

On November 25, 1999 Harris filed an appeal from the aforesaid ruling on the issue of severity of penalty. The appeal proceeded by way of a hearing de novo on January 14, 2000, which resulted in Ruling SB 13/2000 dated January 28, 2000.

During the course of the proceedings on January 14, 2000, evidence was adduced that Harris had prior positive equine drug violations which had occurred as follows:

Ruling Offence Class of Drug

SB 19144 June 16, 1998 6/4/98 III

SB 19865 June 20, 1998 6/10/98 III

SB 19590 May 27,1999 5/17/99 III

SB 22804 November 18, 1999 10/30/99 IV

At the commencement of this hearing, Harris was represented by Mr. D. Larry Todd and Donald Bourgeois appeared on behalf of the Administration of the ORC.

On September 7, 2001, Mr. Todd served a Notice of Motion returnable on September 26, 2001 for the following relief:

(a) an Order perpetually staying and/or dismissing the Notice of Hearing herein dated August 2, 2001, said hearing "being conducted pursuant to the authority of the Racing Commission Act, 2000, S.O. 2000, c. R.20;

(b) in the alternative, staying the within proceedings commenced by the Notice of Hearing dated August 2, 2001 pending an initial ruling by the Judges pursuant to Rule 9.08 and 9.14 of the Rules of Standardbred Racing, 1999;

(c) in the alternative, adjourning this proceeding commenced by Notice of Hearing dated August 2, 2001 to the Judges at Flamboro Downs to be dealt with pursuant to the provisions of Rule 9.08 and 9.14 of the Rules of Standardbred Racing, 1999 and the established practice of the Ontario Racing Commission with respect to penalties referable to positive equine drug offences;

(d) an Order dismissing and/or perpetually staying the within proceedings commenced by Notice of Hearing dated August 2, 2001 on the grounds that the Guidelines for Penalties for Equine Drug Offences effective March 30, 2001 are not applicable to an offence taking place on October 30, 1999;

(e) an Order dismissing and/or perpetually staying the subject proceedings commenced by Notice of Hearing herein dated August 2, 2001, as this purported hearing removes and extinguishes the moving party's vested and established rights of appeal pursuant to the Racing Commission Act, R.S.O. 1990, c. R. 2 and the Rules of Standardbred Racing, 1999;

(f) an Order declaring that this Panel of the Ontario Racing Commission has no jurisdiction to penalize the moving party in the first instance;

(g) an Order staying any penalty assessed against the moving party for forty days so as to permit an Application for Judicial Review and the usual motion for a stay from the Divisional Court; and

(h) such further and other relief as to this Panel of the Ontario Racing Commission as aforesaid seems just and proper.

This panel had been provided with copies of the Motion Record with its supporting documentary evidence in advance. Accordingly, the panel was informed as to the scope of the motion.

Mr. Todd was invited to make submissions and argument as to each of the heads of relief sought.

On behalf of the Administration, Mr. Bourgeois made his submissions.

We wish to make it abundantly clear that in our disposition of the Motion we have considered carefully the submissions made respecting each Order sought.

When the Racing Commission Act, 2000 was proclaimed, it repealed the predecessor Racing Commission Act R.S.O. 1990 as amended.

We apply the provisions of the Interpretation Act R.S.O.1990 c. I 11 and in particular section 14 and hold that this hearing is duly constituted under the provisions of the current statute.

The Order sought in paragraph (a) of the motion is hereby denied.

In dealing with the other relief sought, Mr. Todd submitted that by remitting the issue of penalty back to the Commission, the Order of the Court required the process to begin again at the Judge's level and thereby provide a further opportunity of appeal to Harris, if so advised, to the Commission.

With this we disagree.

The Notice of Application for Judicial Review (Tab 10 Motion Record) sought inter alia:

-an Order quashing the Order of January 28, 2000;

-an Order remitting the issue of penalty to the ORC for rehearing and a proper interpretation of the Guidelines for Equine Drug Offences.

That relief was granted in the Order of the Court supra (Tab 12 Motion Record).

Since the Order of January 28,2000, was made by this panel of the Commission, we conclude that the Order of the Divisional Court was intended to remit the issue of penalty back to this panel for determination.

We interpret the decision in Harris by the Divisional Court to mean that for the purposes of determining whether an offence should be treated as a first offence or subsequent offence, regard should be taken only to offences committed subsequent to July 15, 1999. Accordingly, the offence of October 30, 1999, is to be treated as a first offence.

The Reasons of the Court are to be found at Tab11 of the Motion Record wherein Justice Lang speaking for the Divisional Court said:

Even without retrospective application, the Guidelines can be applied to satisfy the laudable goals and policy objectives for which they were designed. These are Guidelines. The Commission has, and may exercise discretion within its expertise. In exercising that discretion, the Commission may, and should take prior offences into account. In doing so, it may, or may not arrive at the same penalty as was imposed in this case.

On a first offence under the new Guidelines, the Commission may impose a penalty at the high end of the range, or even beyond the range in appropriate circumstances. That will be a matter for the Commission on a further determination of the appropriate penalty.

The relief sought in paragraphs (b), (c), (d), (e) and (f) of the Motion Record are hereby denied.

At the conclusion of argument on the Motion, we reserved and invited counsel to make submissions with respect to penalty.

On behalf of the Administration, Mr. Bourgeois submitted that the appropriate penalty was a suspension of 74 days and a fine of $4,000.

On behalf of Harris, Mr. Todd drew attention to the evidence of the Judges at the hearing at first instance that they were guided by the absence of malice in the licensee and imposed a penalty at the minimums albeit based on the Guideline recommendation for a third offence. He further pointed out that in reaching its decision for the Order quashed by the Court this panel was also guided by same minimum standards.

We are obliged to follow the directive of the Court in their Order which is the subject of this hearing. We are therefore taking into account the prior convictions which are set out earlier in these reasons in exercising our discretion in determining a proper penalty for the conceded violations of the drug rules.

Rule 9.08 of the Rules of Standardbred Racing mandates consideration of the violation as established by the Uniform Classification Guidelines of Foreign Substances as promulgated by the Association of Racing Commissioners International, Inc.

The earlier violations were for Class III drugs, a far more serious class than the class involved in the present case.

We have taken into account all of the factors we have considered relevant and have determined that the appropriate penalty for Harris in this case is a full suspension of 74 days and a fine of $1,000.

The original suspension imposed was to have been served from November 17, 1999, to January 22, 2000. In consideration for the relief sought in paragraph (g) of the Notice of Motion, we are ordering that the suspension commence 40 days from today's date with the fine payable on or before the expiration of the suspension.

DATED this 1^st day of October 2001.

Herbert Bryant

Vice Chair