IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF THE APPEAL OF
STANDARDBRED LICENSEES BEN WALLACE, KELLY SHEPPARD
KEN DUNCAN AND RICHARD ZERON
Standardbred licensees Ben Wallace, Kelly Sheppard, and Ken Duncan brought a motion under the Rules of Procedure before the Ontario Racing Commission seeking certain relief prior to hearings before the Judges under Chapter 9 of the Rules of Standardbred Racing, against the Administration and the Canadian Pari-Mutuel Association.
Standardbred licensee Richard Zeron brought a motion before the Ontario Racing Commission seeking certain relief pertaining to a hearing before the Judges under Chapter 9 of the Rules of Standardbred Racing, against the Administration.
On May 8, 2007, a Panel of the Commission consisting of Chair Rod Seiling and Commissioners David Gorman and George Kelly, convened to hear the motions. Brendan Van Niejenhuis appeared as counsel to the Administration. D. Larry Todd appeared as counsel to Ben Wallace, Kelly Sheppard and Ken Duncan. Nicholas A. Xynnis appeared as counsel to Richard Zeron. No one appeared for the Canadian Pari-Mutuel Association, although duly served.
On reading the Notices of Motion, and the Exhibits, filed, and on hearing the submissions of counsel, the Commission ruled as follows:
The Administration shall provide Amended Notices of Hearing setting out the alleged misconduct and Rules of Standardbred Racing alleged to have been violated.
The motion that a court reporter or recording facilities be provided for the Judges Hearings is dismissed as moot on the basis of a new Commission Administration policy of tape-recording all Judges and Stewards Hearings.
The Administration shall disclose to the moving parties all of the information that it provides to the Judges, including material information received from the Canadian Pari-Mutuel Association.
A stay of proceedings is ordered with respect to the Judges hearings concerning the moving parties for a period of twenty (20) days from the date of this Ruling.
The relief ordered in this Ruling applies to all current Aminorex positive test Hearings.
The Commission gave oral reasons for its decision, setting out the relief sought, the relief ordered, and the reasons for ordering such relief, a transcript of which is attached to this Ruling.
DATED this 15th day of May 2007.
BY ORDER OF THE COMMISSION
John L. Blakney
Executive Director
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2 IN THE MATTER OF THE ONTARIO RACING COMMISSION
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AND IN THE MATTER OF THE RACING COMMISSION ACT, 2000,
5 AND IN THE MATTER OF A NOTICE OF HEARING AGAINST
BEN WALLACE DATED APRIL 17, 2007
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AND IN THE MATTER OF A NOTICE OF HEARING AGAINST
7 KELLY SHEPPARD DATED APRIL 17, 2007
8 AND IN THE MATTER OF A NOTICE OF HEARING AGAINST
KEN DUNCAN DATED APRIL 17, 2007
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AND IN THE MATTER OF HEARINGS SCHEDULED FOR APRIL 30,
10 2007 AND MAY 2, 2007 BEFORE THE JUDGES OF THE ONTARIO
RACING COMMISSION
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12 BETWEEN:
13 BEN WALLACE, KELLY SHEPPARD and KELLY DUNCAN
14 Moving Parties
15 -and-
16 THE ONTARIO RACING COMMISSION
17 Respondent
18 AND IN THE MATTER OF A NOTICE OF HEARING REGARDING
RICHARD ZERON ISSUED APRIL 17, 2007
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AND IN THE MATTER OF HEARINGS SCHEDULED FOR AND
20 COMMENCED ON MAY 2, 2007 AND TO BE CONTINUED AT A LATER
DATE
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BETWEEN:
22
RICHARD ZERON
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Applicant
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-and-
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THE ONTARIO RACING COMMISSION
TORONTO COURT REPORTERS - TORONTO - ONTARIO
1
Respondent
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3 BEFORE: Rod Seiling Chair
4 Dave Gorman Member
5 George Kelly Member
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8 ---------------REASONS---------------
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11 Conducted in the Hearing Room of the Ontario Racing
Commission, Suite 400 10 Carlson Court, Toronto,
12 Ontario, on the 8th day of May
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APPEARANCES:
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16 Brendan Van Niejenhuis Counsel for the
Administration
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18 Nicholas A. Xynnis Counsel for the Applicant
Richard Zeron
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D. Larry Todd Counsel for Ben Wallace,
20 Kelly Sheppard, Ken Duncan
21 Bill Fines Supervisor of Standardbred
Racing Raceway Inc.
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2 ---- Upon resuming at 1:30 p.m.
3 ---------------
4 THE CHAIR: This Panel recognizes the
5 unique situation the positive tests for Aminorex
6 that has arisen as they relate to the usage of
7 Levamisole; a legal medication as per the CPMA
8 Guidelines.
9 This Panel also recognizes its
10 responsibilities under the Act to protect the
11 public's interest.
12 Mr. Todd and Mr. Xynnis made an
13 application on behalf of their clients; Mr.
14 Sheppard, Mr. Wallace, Mr. Duncan and Mr. Zeron,
15 respectively, for the following Motions, and I
16 read from Mr. Xynnis' -- from Tab 1 of his
17 Exhibit 2.
18 Number 1: A stay of any and all
19 proceedings referred to in the Notice of Hearing
20 appended before the Judges of the Ontario Racing
21 Commission pending additional disclosure by the
22 Administration and procedural directions as set
23 out hereinafter.
24 2: A stay of all proceedings herein
25 until the Administration delivers amended
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1Notices of Hearing delineating at the misconduct
2 alleged and the Rules of Standardbred Racing
3 alleged to have been violated.
4 3: A direction that any hearing before
5 the Judges of the Ontario Racing Commission be
6 transcribed by a court reporter or monitor so
7 that there will be a record of said proceedings
8 and that the Applicant therein has the ability,
9 if so advised and if required, to be able to
10 realistically and effectively apply for a stay
11 "with supporting materials" as required by the
12 Ontario Commission General Directive No. 5/2007
13 dated April 17, 2007.
14 4: An Order directing that the
15 Administration of the Ontario racing Commission
16 and/or the Canadian Pari-Mutuel Agency (CPMA) to
17 deliver and disclose any and all documents,
18 investigation reports, conclusions and any and
19 all relevant material and information related to
20 Aminorex positive tests, alleged positives and
21 any medication styled "White Top" made available
22 by Dr. Goodrow and/or any other veterinarian.
23 5: Delivery to the Applicant of any
24 list of witnesses being called by the
25 Administration.
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1 6: Delivery to the Applicant of the
2 required summaries of the anticipated evidence
3 of each witness to be called by the
4 Administration.
5 7: Disclosure by the Ontario Racing
6 Commission and/or the CPMA of all material in
7 the position and/or control of the Commission of
8 the investigations, conducted by either or both,
9 into the Aminorex positive tests in Ontario in
10 2007.
11 8: An Order for delivery of experts
12 reports and any experts being relied upon by the
13 Administration as required by the Ontario Racing
14 Commission Rules of Procedure.
15 9: An Order pursuant to Rules 1.5 and
16 1.10 of the Ontario Racing Commission Rules of
17 Procedure abridging the time for serving and
18 filing of this Notice of Application and the
19 support materials.
20 10: Such further and other relief as
21 counsel may advise and this Panel of the Ontario
22 Racing Commission may permit.
23 After carefully considering the
24 testimony the Panel finds the following:
25 One: The Panel agrees with the
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1 Appellants' Motion number 2 and orders that an
2Amended Notice of Hearing be provided to the
3Appellants outlining the alleged misconduct and
4 the Rules of Standardbred Racing that have been
5 violated.
6 Two: With respect to Motion number 3,
7 the new policy of the Ontario Racing Commission
8 Administration to tape record all Judges and
9 Stewards Hearings makes this motion moot.
10 Three: With respect to the Motions
11 related to disclosure, the Panel is of the
12 opinion that the inquisitorial nature of Judges
13 and Stewards Hearings do not require
14 disclosure. These Hearings have been delegated
15 by the Commission to provide an effective and
16 timely method in dealing with alleged violations
17 of the Rules of Racing. Having Judges deal with
18 such Motions firsthand has proven to serve the
19 industry well. As Justice Abella stated in the
20 McNamara case, paragraph 27: "Whether or not
21 McNamara ought to have been suspended by the
22 track Judges..." and it continues... "Any
23 procedural defects in the Hearing before the
24 track Judges and any resulting prejudice were
25 cured by the fact that a subsequent Hearing took
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1 place with the benefit of every procedural
2 safeguard."
3 With respect to the Waxman case, as
4 raised by Mr. Todd, the Panel notes the Decision
5 related to an appeal of a Commission Ruling, not
6 a Judges' Hearing, and after penalties had been
7 assessed.
8 Not withstanding the aforementioned,
9 the Panel orders the Administration to disclose
10 all information it will be providing the Judges
11 to assist the Judges in making their decision in
12 this unique circumstance.
13 This Ruling shall not be construed as
14 a policy change for disclosure by the Judges and
15 Stewards Hearings.
16 As has been stated on numerous
17 occasions, this situation in which
18 administration of a legal medication has
19 resulted in a positive test for Aminorex, is
20 unique and requires a unique one-time
21 approach.
22 This Ruling applies to all current
23 Aminorex positive tests. A stay will be
24 granted for 20 days from the date of this Ruling
25 for all Aminorex positive test Hearings.
TORONTO COURT REPORTERS - TORONTO - ONTARIO
1 Thank you very much. That
2 concludes.
3 MR. TODD: Mr. Chairman --
4THE CHAIR: Any questions?
5MR. TODD: The relief involving CPMA?
6THE CHAIR: Well, I think we've Ordered
7 disclosure of any information that will be
8 furnished to the Judges in making their decision
9 through their Hearings.
10 MR. TODD: From CPMA as well?
11 THE CHAIR: Whatever the Administration
12 is furnishing the Judges will be the
13 disclosure.
14 MR. TODD: With respect, Mr. Chairman,
15 CPMA didn't oppose the matter, and I appreciate
16 your reasons from the Commission's perspective,
17 but, you know, there's nobody defending the
18 request for Third Party disclosure.
19 THE CHAIR: Well, I think it's the view
20 of this Panel that in all likelihood, given the
21 unique situation that we have before us --
22 MR. TODD: Right.
23 THE CHAIR: And that if you read Mr.
24 Blakney's comments, that one will presume, I
25 think quite readily, that material information
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1 that he's received from CPMA will be going to
2 the Judges.
3 MR. TODD: That's fine. That deals
4 with the matter. Thank you very much.
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5 I hereby certify the foregoing to be
6 a true and accurate transcript as taken
7 by me to the best of my skill and
8 ability.
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11 _____________________________
12 Christine Gilmour B.A.,C.S.R.
13 Toronto Court Reporters
14 1410 - 65 Queen Street West, Box 69
15 Toronto, Ontario M5H 2M5
16 (416) 364-2065
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