Tonya Backus and Mike Stoikopoulos, 2005 CanLII 81046

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

Standardbred owner/trainer Tonya Backus appealed Judges’ Ruling SB 31064 dated July 15, 2004 in which she was fined $1,000.00 and suspended for 15 days for violating Rules 9.09(b) and 26.02 of the Rules of Standardbred Racing for a positive test for the Class IV prohibited substance TRICHLOROMETHIAZIDE from the horse MOEBARAN which raced in the 1st race at Flamboro Downs Raceway on June 30, 2004. Rules 9.13, 18.08 and 26.08 were found to apply.

Standardbred authorized agent/owner/trainer Mike Stoikopoulos appealed Judges’ Ruling SB 31065, dated July 15, 2004 in which he was fined $2,000.00 and suspended for 15 days for violating Rules 9.09(b) and 26.02 of the Rules of Standardbred Racing arising from the positive test described above, and for which he was found responsible under Rule 26.05 of the Rules. Rule 9.13, 18.08 and 26.08 were found to apply.

On November 16, 2004 a panel of the Ontario Racing Commission consisting of Vice Chair Larry Todd and Commissioners Dr. Bernard Brennan and David Gorman heard these appeals together. Mr. Stoikopoulos appeared on his own behalf and on behalf of Ms. Backus. Tim Snell represented the Administration.

Upon hearing the evidence of Judge Bill Pennington, Judge Rick Rier and Ms. Backus, reviewing the evidence filed and hearing the submissions of the Parties, the Commission ruled as follows:

With respect to Ms. Backus’ appeal of Ruling SB 31064, her appeal was dismissed on consent. The timing of her suspension was to be as agreed between the Parties, failing which the Commission could be addressed on that issue.
With respect to Mr. Stoikopoulos’ appeal of Ruling SB 31065, his appeal was dismissed in part as follows:

a) Mr. Stoikopoulos was not found to be responsible under Rules 9.09(b) and 26.02 and Rules 9.13, 19.08 and 26.08 do not apply;

b) Mr. Stoikopoulos was found to be responsible under Rule 26.05 only to the extent that he was responsible in part of the care of MOBARAN and is responsible in part for the operation of Sticky Poultice Stable, which he co-owns and operates with Ms. Backus;

c) The penalty in Ruling SB 31065 is quashed and replaced with a $1,000.00 fine.

The Commission gave oral reasons for its decision which are part of the transcript of the hearing.

Ms. Backus was fully suspended for 15 days from November 21, 2004 until December 5, 2004. Ms. Backus is hereby fined $1,000.00, payable by February 28, 2005, and before she participates directly or indirectly in racing again. Mr. Stoikopoulos is hereby fined $1,000.00 payable by February 28, 2005 and before he participates directly or indirectly in racing again.

DATED this 11^th day of February, 2005.

John L. Blakney

Executive Director

IN THE MATTER OF Standardbred Owner/Trainer Mike Stoikopoulos and Standardbred Owner/Trainer Tonya Backus

Reasons -

Hearing conducted in the Hearing Room of the Ontario Racing Commission, 7th Floor, 20 Dundas Street West, Toronto, Ontario, on Tuesday, the 16th day of November, 2004.

L. Todd Vice Chair

D. Goreman

B. Brennan

Tim Snell Counsel for the

Administration

Appellants Self-represented

Reasons for Decision

--- Upon resuming November 16, 2004, 1:49 p. m.

THE CHAIR: Ladies and gentlemen, the following are the unanimous reasons of this panel with respect to the two appeals before us, styled in the matter of Standardbred Owner/Trainer Mike Stoikopoulos and Standardbred Owner/Trainer Tonya Backus.

As a result of the submissions and acknowledgements provided to us, both in the evidence and the argument, we will and do dismiss Ms. Backus' appeal in it's entirety on consent and with the agreement of all the appellants.

The real issue before us is whether Mr. Stoikopoulos is guilty, either directly or indirectly, of a positive test offence on a horse, MOEBARAN, on June 30th at Flamboro Downs in the first race.

As a result of the reasons that I will give momentarily, we are prepared to allow Mr. Stoikopoulos' appeal in part, and we do conclude that Mr. Stoikopoulos is not guilty of a positive test, and the appeal with respect to Standardbred Ruling 31065 will be allowed, and portions of that ruling that relate to an alleged violation of Rule 9.09, 9.13, 18.08, 26.02, 26.08, and 26.16 of the Rules of Standardbred Racing, and a positive test on the horse, MOEBARAN, at Flamboro Downs on June 30, 2004, will be set aside and quashed.

Mr. Stoikopoulos has offered in his submissions that all horses owned and trained by him, can, or perhaps he will accept a suspension of those horses during the pendency of Ms. Backus' fine and days. We have not accepted Mr. Stoikopoulos' offer in this respect as we find it unfounded and unwarranted in the context of our findings to this point and here and after.

We do, on the evidence, conclude as fact and accept the admission of both Ms. Backus and Mr. Stoikopoulos in his submissions that Ms. Backus and Mr. Stoikopoulos are, in fact, conducting their racing stables as a full partnership known as the Sticky Poultice Stable.

In this context, we find as a fact that Mr. Stoikopoulos did, in fact, have a hand in, and/or contribute to the positive test of MOEBARAN on the 30th of June at Flamboro Downs. However, in our interpretation of the rules and in our consideration of Mr. Snell's submissions on behalf of the Administration, we are loathe to interpret Rule 26.05 to make two or more people responsible for one single positive test. This could, in our view, cause major concerns and ramifications vis-a-vis a number of issues including rights of parties under the Canadian Charter of Rights and Freedoms and common-law doctrines with respect to double jeopardy.

Accordingly, we are not prepared to accept the submissions of the Administration in this particular factual situation, that Mr. Stoikopoulos should be guilty of what I might call a parallel positive test to the positive test of the trainer of record, Ms. Backus.

We do and must note our concern that if we had accepted the Administration's position and interpretation, that we would find ourselves in a difficult position vis-a-vis Standardbred Rule 26.15.

Rule 26.15, as it's presently worded, does in fact prohibit multiple and/or partnership, and/or non-individual trainers of the record, and it is our recommendation that, should the Administration feel that their interpretation is right in the long run, as proffered here today, that the Administration consider, or possibly consider amendments or variations to Rule 26.15.

Accordingly, the 15 day suspension and $2,000.00 fine to Mr. Stoikopoulos, found in Standardbred Ruling 31065 is quashed, and, in lieu thereof, will be substituted a violation under Rule 26.05, whereby Mr. Stoikopoulos, through his partial care, custody, and control of the partnership and partnership property, i. e., among other horses, MOEBARAN, contributed in some respect to the violation that Ms. Backus has accepted as the named trainer of the record under Rule 26.15.

For this partial responsibility through the full and complete partnership that we have head of here, today, we assess Mr. Stoikopoulos a fine of $1,000.00.

Mr. Snell, those are our reasons. Is there anything else we haven't dealt with?

MR. SNELL: No, sir.

THE CHAIR: All right. I should say, Ms. Backus, that it's our usual practise to leave the timing of serving your suspension to, hopefully, your agreement with Mr. Snell and others in the Administration. If there are any difficulties and you can't come to a conclusions that satisfies Mr. Snell or yourself, we could be spoken to as to when it should commence, but I would hope that would create no problem.

MR. SNELL: So, to clarify what was said: all horses trained by Sticky Poultice Stable?

THE CHAIR: All horses trained by Sticky Poultice Stable, there's a rule -- or, owned by Sticky Poultice Stable are trained. There's a rule that fit's that, Mr. Snell, is there not?

MR. SNELL: Right. So, all horses, therefore, trained in the name of Mr. Stoikopoulos?

THE CHAIR: Well, Mr. Stoikopoulos offered us a proposition. We found that offer, while generous, to be not founded in the circumstances. Any horses trained by Mr. Stoikopoulos can race.

MR. SNELL: All right.

THE CHAIR: All right? Any horses owned by Sticky Poultice Stables, there's a rule that covers that, and my understanding is that they would not be permitted to race.

MR. SNELL: Thank you, sir.

THE CHAIR: Okay. Thank you very much.

--- Whereupon proceedings adjourned at 1:55 p. m.

I HEREBY CERTIFY THE FOREGOING

to be a true and accurate

transcription of a cassette tape recording

to the best of my skill and ability.

MAUREEN BYNOE, Stenomask Reporter

B. A., Commissioner of Oaths