Ontario
Racing
Commission
TB
RULING NUMBER COM SB 031/2008
COMMISSION HEARING TORONTO, ONTARIO – NOVEMBER 4, 2008
IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF THE APPEAL OF
STANDARDBRED LICENSEE MICHAEL GRANT
The Background
Michael K. Grant, (“Grant”) date of birth March 15, 1960, is licensed by the Ontario Racing Commission as a trainer/owner/authorized agent, Licence Number 586A80.
On Friday, September 12, 2008, the racehorse, MISS QUEBEC, raced at Mohawk Raceway at Campbellville, Ontario. Samples taken from MISS QUEBEC revealed an excess level of carbon dioxide (TCO2).
Grant was the trainer of MISS QUEBEC.
The Rulings
On Thursday, September 25, 2008, a Panel of Standardbred track judges found that Grant violated Rules 22.38 and 26.02.01 of the Rules of Standardbred Racing.
The Panel issued two rulings.
The Procedural History
On Tuesday, November 4, 2008, a Panel of the Ontario Racing Commission consisting of the Chair, Rod Seiling, was convened to hear the appeal. Grant appeared in person. Anthony Williams appeared as counsel for the Administration.
On review of the exhibits filed, the evidence heard and on hearing the submissions of Grant and counsel for the Administration, the Panel denied the appeal.
The Panel’s Reasons for Decision is attached to this ruling.
DATED in Toronto this 4th day of November 2008.
BY ORDER OF THE COMMISSION
John L. Blakney
Executive Director
REASONS FOR DECISION
Overview
- Standardbred licensee Michael Grant appealed Ruling No. SB 38987 wherein he was fined $1,500 and suspended sixty days (October 1, 2008 to November 29, 2008) for violating Rules 26.02.01 and 22.38 of the Rules of standardbred Racing. Mr. Grant was the trainer of the horse MISS QUEBEC that raced in the fourth race at Mohawk Raceway on September 12, 2008 and had a positive TCO2 test result. The appeal was based only on the penalty aspect with Mr. Grant claiming the penalty was too harsh.
Background
Mr. Grant’s horse MISS QUEBEC raced and won the fourth race at Mohawk Raceway on September 12, 2008. Mr. Grant was the agreed trainer of the horse and entered it into race (Ex. 1, tab 2).
SB Rule No. 22.38 states that a horse cannot have a TCO2 reading that exceeds thirty seven millimoles per litre of blood if it is not competing on Furosemide and thirty nine millimoles per litre of blood if it is competing on Furosemide.
As per the Rules of Standardbred Racing, a blood sample was obtained from MISS QUEBEC at 8:10 p.m. on September 12, 2008, prior to the horse’s race as it was selected for a TCO2 test as per the rules of racing. The sample was taken by Ms. Colleen Hill and processed at 8:14 p.m. that same day (Ex. 1, tab 3).
The blood sample was then sealed, stored and shipped to the approved laboratory, Racing Forensics, wherein a positive test certificate was issued (Ex. 1, tab 5) following at test conducted by the lab on September 13, 2008.
The TCO2 test results revealed a level of 38.7 mmol/l in the blood sample of MISS QUEBEC thus violating SB Rule 22.38 (b).
There were no disagreements with the above noted facts.
On September 23, 2008, ORC investigator, Troy Moffatt, conducted an interview with Mr. Grant re the positive test. Mr. Grant was open, forthcoming and claimed not to know how the horse could have had the positive test.
On September 25, 2008, the Judges convened a hearing with Mr. Grant present. Following the hearing, the Judges issued SB Ruling No. 38987 wherein Mr. Grant was fined $1,500 and suspended sixty days for violating SB Rules 22.38 and 26.02.01, the horse was unplaced, the purse ordered returned and redistributed as per SB Rule No. 9.13 as well as the trainer /driver fees were redistributed as per SB Rule No. 18.08.01. A number of conditions were also attached to Mr. Grant’s licence post his suspension via SB Ruling No. 38988 (Ex. 1, tab 12) which was not under appeal.
Mr. Grant has accepted responsibility for the positive test, there was no evidence tendered as to malicious intent. Mr. Grant asked for an increase in the fine and a concurrent reduction in his suspension. Judge Tom Miller testified that the Judges assessed the penalty at the lower end of the penalty range for a first time offence (Ex. 2, tab 3. p7) and were not comfortable changing it given the circumstances.
It was Mr. Grant’s position that, given his record and his co-operation, consideration of his request was appropriate.
There are precedents for a lower penalty as both Mr. Williams acting for the Commission and Mr. Grant acting on his behalf noted. They are the Soulliere and Hoffman cases (Ex. 2, tab 3, p 14 to 19 and 20 to 26 respectively) along with the Stutzman case wherein no information was presented. Since the new penalty regimen was instituted there have been a total of fifty-one TCO2 positive cases. Only the above three had the penalties reduced, nineteen received the minimum penalty with Mr. Grant at this time being the twentieth.
Mr. Williams tabled Exhibits 3 and 4 related to the Harris case. In Exhibit 4 the Court states at p 17 that the new guidelines (Ex. 2, tab 3, p7) “are some appropriate level of penalty”.
Issue
- Is the penalty assessed by the Judges on Mr. Grant excessive? Are there any mitigating circumstances?
Decision
- After carefully reviewing the testimony and evidence and reading the submissions, the Panel denies the appeal.
Reasons for Decision
There was no disagreement, the horse, MISS QUEBEC, had a TCO2 reading above the limit allowed by the Rules of Standardbred Racing. Therefore, Mr. Grant must bear the responsibility as he has acknowledged.
Once again we are faced with the mystery positive test. As this Commission has stated numerous times, it must, to fulfill its responsibilities under the Racing Commission Act to both protect the health of the horse and the public interest, impose a penalty that will serve as a deterrent and send a signal that there is a reckoning to those few who may choose to flaunt the rules to gain an unfair advantage and in the process put the health of an animal at risk.
Mr. Grant’s penalty is already at the lower end of the penalty range as per the Guidelines for equine drug, TCO2 and Non-Therapeutic Drug Offences (Ex2, tab 3, p8). Agreeing to Mr. Grant’s request to raise the fine and lower the suspension would send the wrong message. Justice cannot be bought but there is a price and that price is the deterrent imposed by the Judges.
A TCO2 Class III rule violation is a serious breach of the rules of racing. There was testimony that there was no malicious intent on the part of Mr. Grant. He was forthcoming and has a previous good record as it relates to positive tests. Therefore, the penalty imposed by the Judges is appropriate given the evidence tendered that his penalty is similar to the majority of other first time offenders.
DATED this 4th day of November 2008
Rod Seiling
Chair