IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF THE APPEAL OF
STANDARDBRED LICENSEE WAYNE PRESZCATOR
Standardbred licensee Wayne Preszcator appealed Standardbred Ruling SB36632, dated March 30, 2007, wherein he was penalized for a positive test for the Class 3 substance Torsemide, and a 60 day suspension and $1,500 fine imposed.
On April 9, 2007, Wayne Preszcator requested a stay from the Director, pending the hearing of his appeal. On April 11, 2007, the Director issued Ruling SB 53/2007 wherein the request for a stay was denied.
On April 12, 2007, Wayne Preszcator appeared before the Commission to request the Commission review the decision of the Director declining to grant a stay. A Panel of the Commission was convened consisting of the Chair Rod Seiling, and Commissioners David Gorman and George Kelly. Brendan Van Niejenhuis appeared as counsel to the Administration, and Frank L. Roth appeared as counsel for Mr. Preszcator.
On hearing the evidence of Wayne Preszcator, and on reading the Exhibits, filed, and on hearing the submissions of counsel, the Commission ordered as follows:
Ruling SB 36632 is stayed;
The stay shall expire on April 30, 2007.
The Commission released written reasons for its decision, a copy of which is attached to this Ruling.
DATED this 17th day of April 2007.
BY ORDER OF THE COMMISSION
John L. Blakney
Executive Director
REASONS FOR DECISION
SB licensee Wayne Preszcator has appealed Ruling SB 53/2007 issued by the Executive Director on April 11, 2007, which denied granting of a stay pending the resolution of issues concerning a suspension of his licence imposed under Ruling SB 36632.
WHEREAS Wayne Preszcator ("Preszcator"), licence number E43546 was issued Ruling SB36632 on March 30, 2007;
AND WHEREAS Ruling SB36632 ordered a penalty of $1500 fine and a 60 day suspension for the positive test for the drug "torsemide" (Class 3) with the horse Simply Mavelous in Race 1 on February 1, 2007 at Woodbine Racetrack;
AND WHEREAS the Director received a letter from Mr. Frank Roth (Counsel to Preszcator) on April 9, 2007;
AND WHEREAS the letter from Mr. Roth contained no information which would lead the Director to believe that exceptional circumstances exist to warrant a stay;
TAKE NOTICE that the Director hereby denies the application for a stay of Ruling SB36632;
Background
Standardbred licensee, Wayne Preszcator, received a positive test for the Class 3 drug, Torsemide, with the horse "Simply Marvelous" in Race 1 on February 1, 2007 at Woodbine Racetrack. He was notified of the positive test on February 14, 2007 and a judges hearing was held with Mr. Preszcator with a subsequent ruling issued on March 30, 2007 (tab 1 of exhibit 3) suspending him for 60 days and fining him $1,500.
That same day, Mr. Preszcator filed an appeal (tab 2 of exhibit 3) with the Commission and telephoned a Judge, he thought to be Mike Wilson, with respect to the appeal. He told us that Mr. Wilson informed him that stays are not granted for Class 3 violations unless there were extenuating circumstances and that he had nothing to add.
On April 9, 2007 Mr. Frank Roth sent a letter (tab 5 of exhibit 3) to the Executive Director of the Commission, John Blakney on behalf of Mr. Preszcator which requested a stay on behalf of his client. The letter also requested, that in the event Mr. Blakney denied the request, an appeal be made directly to the ORC. Mr. Blakney did deny the request for the stay as per his response in Ruling Number SB 53/2007 dated April 11, 2007 (tab 6 of exhibit 3).
On April 12, 2007 a Panel of the ORC convened to hear Mr. Preszcator's and Mr. Paul Walter's joint appeal of the denial of their requests for stays of their suspensions. Mr. Walter's case was identical to that of Mr. Preszcator. Representing the Administration as legal counsel were Brendan Van Niejenhuis and Owen Rees. Representing Mr. Preszcator was Mr. Frank Roth.
Mr. Roth informed us, and it was confirmed by Mr. Van Niejenhuis, that Mr. Preszcator would be called as a witness, but that his testimony would be limited to the process and therefore the substance of the matter would not be discussed.
Mr. Roth told us that he agreed that there must be a reasonable basis for the granting of a stay but that there was no reason given by the Executive Director for not granting the stay such as the negative impact on racing. We were told that there is no rule regarding a need to rush for an appeal, that to deny a stay is not practical. He asked "What are the exceptional circumstances" referred to as the reason a stay would be granted.
He stated that the legislation requires a stay be granted on the basis of social responsibility, integrity and due process, otherwise the legislation is meaningless. That means, we were told, that the appellant is not to be judged guilty until a full and proper hearing de novo. He told us that as there are no notes available from the judges' hearing so one cannot tell what was said. We were told that he was not arguing that the judges erred, only the right to a new hearing.
Mr. Roth referenced to the Panel exhibits 1 and 2. Number 2 contained 3 parts, (a) which was a copy of an ORC notice to the industry dated February 16, 2007 related to the Torsemide positives involving 15 individuals, (b) a notice to the industry from the ORC dated March 8, 2007 related to due process for positive tests and (c), a joint statement dated March 13, 2007 from the ORC, Great Canadian Gaming, Western Fair Association and Woodbine Entertainment Group stating that the trainers with positive Aminorex tests would be allowed to enter their horses. Exhibit 1 was a copy of an article from the publication, "The Edge" related to the ORC's position on illegal medications. Mr. Roth told us that the trainers with a Class 1 drug positive test violation were being allowed to race their horses but his client, with a Class 3 drug violation, was being suspended.
Mr. Roth told us that the information contained in Exhibit 1 which included a new policy position by the ORC on stays, seemed to fly in the face of the March 13, 2007 communication. He told us that there was a need to deal with the appeal in an expeditious manner, otherwise due process would not be served and that the Commission has the authority to set the date for an appeal hearing.
Mr. Preszcator's testimony confirmed to us the order of events as put to the Panel by his attorney, Mr. Roth, as it related the process. He told us that he did not speak to Mr. Blakney.
Mr. Van Niejenhuis told us that the judges' rulings carry weight, that they are meaningful, and that the Executive Director can grant a stay if it is deemed appropriate. He referenced to us SB Rule # 24.06 which states that pending an appeal, all penalties continue in full force and effect. He told us that with respect to SB Rule # 24.03, the launch of an appeal must be lodged upon specific grounds, that it needs to show why it is necessary and appropriate.
He told us that the Panel should not assume that the judges were wrong in making their decision to impose the penalty on Mr. Preszcator and that the Executive Director correctly would assume the judges made the right decision. We were told that the process that has unfolded for Mr. Preszcator is consistent with the rules and that one does not require a stay in order to make a viable appeal.
We were told that there has been no evidence provided that there are serious issues with the judges' ruling, that to grant a stay requires reasons based on merit and that the appellant has only raised process as the basis for his request for the stay.
He told us that Mr. Preszcator has had the benefit of due process. The notice of the positive test was provided to him on February 14, 2007 and the judges' hearing, which is part of the due process, was held on March 30, 2007, we were told. During this time frame, he told us, Mr. Preszcator was allowed to race his horses.
The Panel was told that the Executive Director has discretion under SB Rule # 24.06, but that it must be exercised on sound principles and that a Panel deals with it on a de novo basis. He told us that to grant a stay there must be exceptional circumstances and that there needs to be a balance in the granting of stays. Otherwise they can lead to an abuse of the system via due process in that a licensee can use a stay to wait out the penalty into the future.
Issue
- Has Mr. Preszcator provided the Panel sufficient reasons that would compel it to grant him his request for a stay of his suspension as per SB Ruling # 36632 dated March 30, 2007?
Analysis
The use of illegal medications continues to be a threat to the horse racing industry and the health of the horse. The Commission views this problem very seriously and, with the endorsement of the industry, has adopted rules and penalties to act as a deterrent to their use.
Judges hearings, under the Rules of Standardbred Racing, are an integral part of the due process that every licensee is entitled to under the rules of racing. Mr. Preszcator has had the benefit of 6 weeks, from February 14, 2007 to March 30, 2007 from the time of his positive test notice to his hearing with the judges. The Panel is aware that at Judges' hearings, notes are taken and retained. The delay in time, to date, has been as a result of due process accorded to him and the Panel notes that this hearing was provided the day following upon his request for same.
The situation between Mr. Preszcator's positive test for Torsemide, a Class 3 drug not approved in Canada and those of the trainers' positive tests for Aminorex, a Class 1 drug is not analogous. Those trainers, we note, have, as yet, not been provided their due process rights in the form of a judges' hearing.
The Panel is aware that there needs to be a balance as it relates to the granting of stays, they should not be automatic. There can be a potential abuse of the process and the need should be based on exceptional circumstances. It is incumbent on an appellant to provide those reasons.
The Panel recognizes that the Executive Director of the ORC, as quoted in Exhibit 1, said, "Traditionally, the stays were somewhat automatic" and that this may still be the view of some within the industry.
The Panel supports an ORC policy that violations of the rules regarding Class 1, 2 and 3 drugs must not be taken lightly, including the granting of stays. It is the opinion of this Panel that a quote in a trade publication is not an adequate means to notify the industry to a change in what had been an apparent longstanding policy of automatic granting requests for a stay.
Conclusion
Mr. Preszcator, in the view of the Panel, has had the benefit of due process and fairness as he is entitled to under the Rules of Standardbred Racing. Furthermore, he has not provided a reason, as required under the rules, as to what exceptional reasons a stay should be granted to him.
However, the Panel grants Mr. Preszcator's request for a stay. It will expire on April 30, 2007 which will enable his appeal to be heard in an expeditious manner as his legal counsel requested. The stay is being granted on the basis that an article in a trade publication is not adequate notice to the industry for a policy change by the Commission in the granting of stays.
DATED this 17th day of April 2007.
Rod Seiling
Chair