Patrick Hudon, 2007 CanLII 86987

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

AND IN THE MATTER IN THE APPEAL OF PATRICK HUDON

Standardbred licensee Patrick Hudon was suspended by the Director under an Order of Immediate Suspension pursuant to section 23 of the Racing Commission Act, 2000. Patrick Hudon requested a hearing before the Commission and commenced a preliminary motion for a stay of the Director's Order of Immediate Suspension prior to the hearing.

On February 2, 2007, a Panel of the Commission consisting of Chair Rod Seiling and Commissioners David Gorman and George Kelly, convened to hear the motion for a stay. Gerald Sternberg represented the moving party Patrick Hudon, and Brendan Van Niejenhuis represented the Administration.

On reading the Notice of Motion, the Affidavit of Patrick Hudon, and the Exhibits filed, and on hearing the submissions of counsel for both parties, the Commission dismissed the motion for a stay of the

Director's order.

DATED this 8^th^ day of February 2007.

BY ORDER OF THE COMMISSION

John L. Blakney

Executive Director

REASONS FOR DECISION

Overview

1. Licensee Patrick Hudon requested a hearing with respect to a notice of a proposed order and order of immediate suspension issued by the Director pursuant to Sections 23 of the Racing Commission Act, 2000. The hearing with respect to the matter commenced on February 2, 2006 before a Panel of the Commission.

The grounds relied on by the Director for his decision to revoke the licenses of Patrick Hudon were stated in the order as follows:

"The Director proposes to order that the licenses of Patrick Hudon be revoked for the reason that the Licensee is not entitled to a licence under Section 19 of the Act because:

a. there are reasonable grounds to believe that, while the Licensee carries out the activities for which a license is required, that the Licensee will not act in accordance with the law, or with integrity, honesty, or in the public interest, having regard to the past conduct of the applicant; and

b. the Licensee is carrying on activities that are or will be in contravention of the Act, the rules or terms of the license."

The particulars of the grounds on which the Director relied for the immediate suspension of Patrick Hudon's licenses as an Owner/Driver/Trainer/Authorized Agent January 25, 2007 were set out in the notice as follows:

"The Director has ordered the licenses of Patrick Hudon to be suspended immediately for the reason that it is necessary in the public interest, because:

a. there are reasonable grounds to believe that, while the Licensee will not act in accordance with the law, or with integrity, honesty, or in the public interest, having regard to the past conduct of the applicant;

b. the Licensee's conduct has placed the integrity of the horse racing industry in Ontario in question;

c. public interest reasons.

The Director has specifically determined that the order of the immediate suspension is necessary in the public interest because:

a. The use by any licensee of the prohibited substance EPO or Aranesp greatly and detrimentally affects the reputation of horse racing in Ontario and harms the confidence of racing participants, the wagering public and the public at large in the integrity of the sport;

b. The use of this prohibited substance poses a very serious danger to the health and welfare of horses participating in the Ontario horse racing industry;

c. The use of this prohibited substance prevents other horse racing participants from competing in fair races and seriously threatens the financial stability of the Ontario horse racing industry by negatively affecting the industry's reputation in other jurisdictions;

d. The investigation has satisfied the Director that Hudon has used the prohibited substance Aranesp in racehorses, as further stated detailed in the general particulars enumerated below."

Background

2. Gerald Sternberg, legal counsel for the applicant Patrick Hudon, told the Panel that he was requesting it grant a stay for his client. He said that he had contacted the Commission in writing making this request but had received a verbal response that it would not agree to his request.
3. Mr. Sternberg said that the legal basis for the request was Section 25 of the SPPA (Statutory Powers and Procedure Act). Section 25(l) reads as follows: "An Appeal operates as stay, exception -- An Appeal from a decision of a tribunal to a court or other appellate body operates as a stay in the matter unless,

(a) another Act or a regulation that applies to the proceeding expressly provides to the contrary; or

(b) the tribunal or the court or other appellate body orders otherwise 1997, c. 23, s. 13(21)."

4. Mr. Sternberg, in arguing his point, also recognized that the Panel has the power to not grant a stay.
5. The Panel was told by Mr. Sternberg that to not grant a stay was both a denial of procedural fairness and a denial of natural justice.
6. Mr. Sternberg also referenced Mr. Hudon's "good" record as a licensee citing "minor" violations he termed on his record as a licensee. He said that his client's inability to comprehend and understand issues due to number of factors including possible Attention Deficit Disorder Syndrome, a Grade Eight education and memory problems stemming from a serious racing accident was an issue related to this case.
7. We were told by Mr. Sternberg that Mr. Hudon understood that when D/Sgt. Schandlen interviewed him at Georgian Downs on November 14, 2006 it was not about him. There appears to be no dispute about Mr. Hudon's admission about the products he purchased from a Sandy Di Florio through the website "Preracespecialist.com". Included in the purchases was 20iu of Aranesp 375. Aranesp is a trade name for EPO.
8. Mr. Sternberg indicated to the Panel that his client was either unaware or did not understand the significance of the April 2006 directive issued by the Director of the Commission as it related to the severity of penalties for the possession of or use of Aranesp. Given this fact he asserted the Panel should take this into consideration as well as the financial implications for his client which he claimed would be significant for him and his family.
9. Counsel for the applicant stated that the statements made to D/Sgt Schandlen by his client, Mr. Hudon, may not be admissible in a hearing and that the exact dates related by him during the interview may be in question as well as their accuracy.
10. Mr. Sternberg said that Mr. Hudon admitted to using EPO on the horse "Head of State" but that it was not racing at that time and that as it was not well, health wise. It was his understanding it would be beneficial for the horse's health he said. It did not help, we were told, and Mr. Hudon gave the product away. Mr. Sternberg said that Mr. Hudon never used the product, EPO, on the horses "Meconopsis" and "J M Lucky Girl" and Mr. Sternberg referred to Exhibit #4, the horses past performance lines which he said indicated this fact.
11. This situation, Mr. Sternberg claimed paralleled the Fred Rogers case as it relates to Doctors "Kennedy" and "Flanagan". That case, he said, Rogers had a license to sell horse products but not drugs and that the alleged trainers involved received suspended sentences but he was not sure whether EPO was involved.
12. On the issue of integrity, Mr. Sternberg claimed that the Commission is trying to clean up the industry for the public but in this case the use of EPO is not integrity related as the horse, "Head of State" was not racing and thus not a threat to the integrity of the industry. He argued that a stay would not cause irreparable harm to the administration and that a suspension was only proper after a full hearing as per Section 25.1 of the SPPA.
13. Brendan Van Niejenhuis, legal counsel for the Ontario Racing Commission administration, referenced for the Panel Section 6.46.01 of the Rules of Standardbred Racing, 2005 which reads, "No person shall possess or use a drug or medication on a horse: ..." He then referenced clause (e) which lists EPO as one of the banned substances. He told the panel it is clear the rules deal with both possession and use.
14. The Panel was told by Mr. Van Niejenhuis that the administration does not argue that it should automatically give a stay when a request is made.
15. With respect to Section 25.1 of the SPPA, Mr. Van Niejenhuis argued that it relates to an appeal process of a tribunal and that it is not relevant as this hearing is not an appeal on evidence heard in a previous proceeding.
16. Mr. Van Niejenhuis referenced for the Panel Sections 19, 21 and 23 of the Ontario Racing Commission Act, 2000. Summarized, Sections 19 and 21 provide the Director the power to refuse to license, renew a licence or suspend a licence with a hearing provision allowed upon request by the applicant. Section 23 of the Act he said, deals with exceptional circumstances and the discretion to suspend a licensee without a hearing is the Director's. Under this provision, we were told, the Director can suspend a licence immediately without a Notice of Propose Order if it is deemed in the public interest.
17. The Panel was asked by Mr. Van Niejenhuis to refer to Exhibit #2, Tab 19. It is an extensive report from D/Sgt Schandlen's interview with Patrick Hudon of November 14, 2006 in which he admitted to the purchase of Aranesp from Sandy Di Florio and using the product on the standardbred horses "Meconopsis" and "J M Lucky Girl" He argued that the facts are clear that Mr. Hudon possessed and used the banned substance notwithstanding the well publicized April 2006 directive from the Commission. The reasons for the directive, he said, were for it to act as a control measure, to protect the health of the horse and in the public interest.
18. The Administration's counsel admitted that the Panel can grant a stay but he argued that a Panel of the Commission should hear evidence on this case beforehand and that will take some time. Further, he said that the Director did make his decision with the public interest in mind and that it was based on the evidence before him and with the knowledge that the use of EPO has had severe negative impacts on the horse racing industry in Ontario.
19. Mr. Van Niejenhuis stated that the burden of proof, under the statute is not on the Director.
20. The Panel was told by Mr. Van Niejenhuis that its reference to the Megens case in the written decision regarding the Salzsauler appeal is pertinent as it reads, "The Commission should not lightly intervene..."

Issue

21. The issue for the Panel is as follows:

• Should the Panel intervene and overrule the director's decision made under Section 23 of the Act before a full hearing of a Panel from the Commission has had the opportunity to hear evidence relative to the issues at hand.

Analysis

22. Mr. Hudon admitted to the possession of Aranesp (EPO) which is a violation of the Rules of Standardbred Racing (2005) under Section 6.46.01.
23. The use of EPO has caused severe damage to the integrity of the horse racing industry in Ontario and poses a serious danger to the health of the horse.
24. The Panel is of the view that the Director acted within the jurisdiction granted under the statute, Section 23 of the Ontario Racing Commission Act, 2000 and that in doing so the action was to protect the integrity of the horse racing industry, the public interest, and the health of the horse.
25. The Panel does not agree that Section 25.1 of the SPPA is relevant. This appeal is not an appeal of a tribunal ruling where evidence was presented.

Decision

26. The Panel, after careful consideration of the evidence presented, denies the request for the stay as requested.
27. The Panel, in reaching this decision, continues to support the comments made in the previously referenced Megens decision, specifically # 17. It reads as follows:

"We are of the view that the Commission should not lightly intervene with the decision of the Director or his delegates.

Nevertheless, the statute as above, provides the necessary jurisdiction and mandate to do so if a panel of the Commission is of the view, after reviewing all the evidence, that the proposed Order of the Director should have been made".

28. DATED this 8^th^ day of February 2007.

____________________________

Rod Seiling

Chair