IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF STANDARDBRED OWNER/TRAINER
NEVILLE JOHNSON
Standardbred owner/trainer Neville Johnson (K60174) appealed Judges' Ruling SB 28455 issued on April 26, 2003 wherein he was fined the sum of $1,000 and fully suspended for 30 days for violation of Rule 10.01(a) and (b) of the Rules of Standardbred Racing.
On September 23 and November 19, 2003, Vice-Chair Larry Todd and Commissioners Pat Bullock and Brenda Walker of the Ontario Racing Commission convened to hear the appeal.
Donald C. Plaunt appeared on behalf of Mr. Johnson and Don Bourgeois appeared on behalf of the Administration.
Upon hearing the evidence of Pat Webb, Glenn Phillips, Paul St. Amand and Neville Johnson, upon reading the exhibits and upon hearing submissions of the parties, the Ontario Racing Commission dismissed the appeal and affirmed the penalty of a 30-day full suspension and a fine of $1,000. The period of the suspension should be agreed upon between counsel, failing which the Commission may be addressed in respect of the commencement of the suspension.
The written reasons for decision of the Ontario Racing Commission are attached to and form part of this Ruling.
BY ORDER OF THE COMMISSION
Jean Major
Executive Director
REASONS FOR DECISION
Standardbred owner/trainer, Neville A. Johnson, appeals the Ruling of the Judges at Sudbury Downs with respect to an order issued against him dated April 26, 2003 whereby he was suspended for a period of thirty days and fined $1,000.00 for a violation of Rules 10.01(a) and (b) of the Rules of Standardbred Racing.
The aforesaid Ruling of the judges, being judges’ Ruling No. SB 28455, was stayed under the hand of the Executive Director on April 26, 2003 pursuant to the provisions of Rule 24.06 of the Rules of Standardbred Racing pending the disposition of Mr. Johnson’s proposed appeal.
This matter was heard on two separate dates by a panel of the Commission. The hearing commenced on September 23, 2003 and was completed just prior to noon on November 19, 2003.
Don Bourgeois appeared as counsel for the Administration of the Ontario Racing Commission while Donald C. Plaunt appeared as counsel for Mr. Johnson throughout.
The background of the Administration’s case was submitted in the form of a documents brief being Exhibit 1 at the hearing.
The thrust of the appeal was summarized by Mr. Plaunt in his argument to the effect that the incidents alleged by the Judges in their Ruling, as above, were “a complete fabrication”. Mr. Johnson confirmed this in his evidence to the effect that “the incident described by Mr. Phillips did not happen”. Although the prehearing conference report, filed as part of Exhibit 1, indicated that penalty would be an issue, we did not receive any submissions by either Mr. Bourgeois or Mr. Plaunt in regard to either the quantum of the suspension or the fine assessed by the judges.
The Administration called Judge Patricia Webb and Security Officer, Glenn Phillips, as its witnesses. Mr. Plaunt reciprocated by calling Paul St. Amand and his client, Neville J. Johnson, by way of defence to the allegations being advanced by the Administration.
In a nutshell, it is the Administration’s case that Mr. Johnson was seen at or about 4:00 p.m. on December 29, 2002 in a barn on the backstretch of Sudbury Downs with a hypodermic needle, a rubber tube and an electrolyte jug contrary to the explicit provisions of Rule 10.01(a) and (b) of the Rules of Standardbred Racing. This particular Rule, which prohibits hypodermic needles and injectables from being on backstretch premises other than in the hands of veterinarians and physicians, is fundamental to the integrity and credibility of horse racing within the Province of Ontario. Without absolute compliance by all licensed participants with Rule 10.01, there could well be a significant compromise of the credibility and the fairness of horse racing.
On behalf of the licensee, it was submitted that the incident alleged simply did not take place and that the judges had erred in their Ruling, as above, by basing “one person’s word against mine”. The licensee’s case was in part based on inferences of conspiracy, collusion and/or malice from the management of Sudbury Downs given that Mr. Johnson is the father-in-law of Paul St. Amand, a party who according to Exhibit 3 and other evidence before us, has been banned from access to the backstretch of Sudbury Downs by management. Our findings and views with respect to this aspect of the appeal are set out below.
This panel takes full cognizance of its obligations to the licensee when reviewing allegations that may well involve a disciplinary suspension which affects one’s profession and livelihood. In particular, we note from Baker v. Canada (Minister of Citizenship and Immigration) (1999) 1999 CanLII 699 (SCC), 174 D.L.R. (4th) 193, (S.C.C.) at 212, that we are mandated to ensure that “a high standard of justice is required when the right to continue one’s profession or employment is at stake”.
As the case was presented to us, we are obliged to consider the evidence and credibility of Security Officer Phillips on the one hand and the licensee Johnson on the other. In fulfilling our obligation as to which set of facts are to be believed, we have considered, evaluated and weighed all the evidence of both the Administration and the appellant.
With respect to the testimony of Security Officer Phillips, we heard the following salient evidence:
(a) Exhibit 2 is the written “Incident Report” prepared right after the alleged events testified to by Mr. Phillips on December 29, 2002. This written Incident Report was contemporaneous and substantially corroborated in the evidence we heard from Mr. Phillips.
(b) Exhibit 2 confirmed the observations of seeing Mr. Johnson treating a horse with a “needle, rubber hose and beige bottle”.
(c) The written report confirmed that “Mr. Johnson had removed the needle from the horse’s neck”.
(d) The written report further notes “Mr. Johnson disposed of the needle in the garbage can in the men’s washroom”.
(e) The written report then attributed a statement to Mr. Johnson to the effect “when the vets are not around, you gotta do what you gotta do”.
(f) The report identified the horse being injected by Mr. Johnson with the needle as wearing a halter with the brass nameplate “Radial”.
(g) Exhibit 4 was a drawing of the annex and stable area where the alleged incident took place. This drawing and other evidence demonstrates clearly the ease by which any party entering by the doors referenced by Mr. Phillips could view with full clarity the area of the purported incident.
(h) Security Officer Phillips had no prior difficulties, run ins, or confrontations with licensee Johnson before the December 29, 2002 incident. Mr. Phillips testified that Mr. Johnson was, in fact, a “likeable person”.
(i) Security Officer Phillips indicated that since October 2002 he had been involved in approximately three dozen needle locating events at Sudbury Downs. He confirmed that these hypodermic needles are being found throughout the back stretch “at all different locations”.
With respect to the testimony of licensee Johnson and the case as presented on his behalf, we heard the following evidence:
(a) Mr. Johnson was not even in the annex area of the alleged event between 3:30 and 4:00 p.m. Mr. Johnson indicated that he was not in this area until around 5:00 p.m. although he was “not certain”.
(b) Mr. Johnson was adamant that between approximately 3:30 p.m. and 4:00 p.m. on December 29, 2002 he was not in the annex but was elsewhere in the backstretch. He indicated that he was discussing matters with another named individual elsewhere on the backstretch.
We do note that this person was not called to confirm this discussion. The evidence of this person could have been of material assistance to our findings in this matter.
(c) Mr. Johnson was somewhat slow to recall another incident with security at Sudbury Downs on January 3, 2003 when he was contacted to return fluorescent lighting which was the property of Sudbury Downs and which had apparently been improperly removed by him.
(d) Mr. Johnson very quickly acknowledged and admitted that his standing directions to his former veterinarians at Sudbury Downs were to jug his racing stock once a week. He pointed out that there was apparently no veterinarian available at Sudbury Downs to do this in most, if not all, of 2002.
(e) Mr. Johnson likewise acknowledged taking horses prior to 2002 to the Barrie Equine Clinic and Dr. Ruch for veterinarian treatments and, in particular, the giving of electrolyte jugs. Mr. Johnson confirmed on several occasions that as of 2002 at Sudbury Downs, there was “not a vet to do” this jugging that had been his prior practice.
(f) Mr. Johnson indicated that because of the aforesaid veterinarian shortage, he now only treats his horses with “what he buys off the shelf at the tack shop”, being such items as oral or liquid supplements. This statement contrasts with the prior admitted jugging program.
(g) Mr. Plaunt, on behalf of his client, filed a forensic laboratory report dated August 14, 2003 from Maxxam Analytics Inc. This report was made Exhibit 6 to the proceedings.
(h) Mr. Plaunt, in his argument, relied substantially on this forensic report, but did not call any of the report’s authors to give evidence and to assist the panel or clarify a number of issues raised by the report.
(i) In particular, we note that Exhibit 6, while finding “no blood” on either of the hypodermic needles submitted for testing, contained the following caveats:
(i) “Failure to obtain a DNA profile could be the result of insufficient quantity and/or quality of the sample analyzed”;
(ii) A positive “Kastle-Meyer Test” indicates but does not confirm the presence of blood;
(iii) There was no blood test apparently on the inside of one or both of the interiors of the seized hypodermic needles, and
(iv) Equine DNA tests were only made on the “outside of the needle shaft and a beveled opening”.
(j) This forensic report confirmed that no equine DNA profile was obtained from either the needles. However, in the next sentence, the caveat was provided with respect to “insufficient quantity and/or quality of the sample analyzed”.
(k) Paul St. Amand indicated that he had never seen his father-in-law jug a horse and that in his experience, veterinarians always did the licensee’s jugging.
(l) Mr. St. Amand further indicated that it was general knowledge at Sudbury Downs that the appellant is his father-in-law and further that Mr. St. Amand had been barred from Sudbury Downs for some number of years and did not have “a good relationship with the track”.
(m) Mr. Johnson acknowledged that prior to December 29, 2002 he had never had any problems or difficulties with the management at Sudbury Downs.
(n) Mr. Plaunt in his argument did acknowledge that perhaps Mr. Johnson was not the best of witnesses.
(o) Mr. Johnson indicated that Radial was always kept in stall #46 and not stall #43 where Security Officer Phillips indicated the horse was placed after he saw the needle removed from the horse’s neck.
The panel also received the evidence of Judge Patricia Webb as to the participation of the Commission Judges in April of 2003 with regard to events leading up to the Standardbred Ruling which is the subject of this appeal. Judge Webb did acknowledge that at the judge’s hearing on April 19, 2003 that there could have been contamination of the two seized hypodermic needles given that the packaging containing them was opened and apparently touched by at least one of the presiding judges.
Additionally, Judge Webb indicated that after the hearing, she and/or one or more of the other two judges had contact with two veterinarians for the purposes of making inquiries flowing from the evidence at their hearing. The substance of these communications with two veterinarians by the judges were apparently not communicated to licensee Johnson although it is acknowledged that the information received from the two veterinarians formed a significant part of the decision of the judges. In this respect, we would have hoped that the judges considering the matter would have fully apprised Mr. Johnson of the information they received outside of the parameters of the hearing and thereafter provided the licensee with sufficient time to respond to this additional information which formed part of the judges’ adjudication. This information, albeit presented to us in abbreviated format, forms no part of our decision in this matter.
We are therefore left to grapple with the contradictory evidence of Security Officer Phillips and the appellant.
We do note that the licensee Johnson has been a participant in the industry for 24 years and has no prior record whatsoever of any offences under the Rules of Standardbred Racing. In this respect, his conduct is exemplary.
However, we are unanimously of the view that where the evidence of Mr. Johnson conflicts with the evidence of Security Officer Phillips in respect of events on the afternoon of December 29, 2002, that the evidence of Security Officer Phillips must be preferred for the following reasons:
(a) Security Officer Phillips had no prior history of controversial dealings or disagreements with the licensee;
(b) There was a contemporaneous written report of the events completed by Security Officer Phillips which is substantially consistent with his evidence before us many months after the alleged event;
(c) Exhibit 6, being the DNA and blood report, is not of the conclusive nature that it could have been had its authors been available for clarification and cross-examination;
(d) We have some real difficulties determining both the parameters and conclusiveness of the findings being expressed by Exhibit 6. The attendance of one or more of the authors would undoubtedly have clarified some of these issues for the panel.
(e) Licensee Johnson was very vague about his location and the timing of his various attendances on the afternoon of December 29, 2002. Additionally, Mr. Johnson did not give us the benefit of the evidence of the party who allegedly could have corroborated his location on the backstretch of Sudbury Downs;
(f) With regard to the arguments of possible malice, conspiracy and/or collusion with respect to the subject event, we do note that Mr. St. Amand as the licensee’s father-in-law had been banned from Sudbury Downs for a number of years. There is a well-documented and publicly recorded trail of litigation and dispute between Sudbury Downs and the Ontario Harness Horse Association of which Mr. St. Amand was a director, going back at least four years. We are somewhat circumspect of these allegations raised by Mr. Johnson given his admitted years of cordial and non-eventful dealings with Sudbury Downs in the context apparently of everyone in the racetrack community knowing of the adverse and conflicting interests of Mr. St. Amand and track management.
(g) Mr. Johnson himself acknowledged that in years of dealing with Sudbury Downs he had not had any prior difficulties or problems despite it being apparently known by all that he was related by marriage to a party unwelcome on the premises of Sudbury Downs;
(h) The evidence as a whole makes it clear that the inferences of conspiracy, collusion and/or malice have little foundation;
(i) Mr. Johnson’s own evidence makes it quite clear that when veterinarian services were available that all his racing stock were regularly jugged. We find that the probability of licensee Johnson altering his long-standing practices unlikely.
(j) Additionally, the unchallenged evidence of several dozen recorded needle incidents makes it clear that hypodermic needles on the backstretch of Sudbury Downs is unfortunately not a rare or occasional event.
For the reasons above, we accordingly find that licensee Johnson on December 29, 2002 violated Rules 10.01(a) and (b) of the Rules of Standardbred Racing. The appeal of licensee Mr. Johnson as to liability is therefore dismissed.
Given that the vast majority of the evidence related to liability and that there were no direct submissions as to the penalty being inappropriate, we therefore affirm the penalty imposed by the judges, being a thirty-day full suspension and a $1,000 fine. Given the fact that Sudbury Downs races on a somewhat seasonal basis and the evidence with respect to where Mr. Johnson substantially, if not exclusively, races his horses, the period for commencement of this suspension should be discussed and agreed upon between counsel. Failing such agreement, we may be addressed in respect to the commencement of the suspension.
We must note the unchallenged evidence that there is apparently no licensed veterinarian available to treat racehorses on the backstretch of Sudbury during the current racing season. This situation, if accurate, is unacceptable and an only too available invitation to licensees to consider violations of Rule 10.01 of the Rules of Standardbred Racing. The Administration and Sudbury Downs should together seek an immediate remedy for this circumstance.
Dated at Toronto, this 3rd day of December, 2003.
Larry Todd
Vice Chair