Prushnok v. Ontario Racing Commission, 2008 CanLII 89025

Ontario Racing Commission

TB

RULING NUMBER COM SB 026/2008

COMMISSION HEARING TORONTO, ONTARIO – JULY 29, 2008

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

AND IN THE MATTER OF THE APPEAL OF

STANDARDBRED LICENSEE DAVID PRUSHNOK

AND ANDRAY FARM

Standardbred licensees, David M. Prushnok, owner, Licence Number 1957U3 and Andray Farm, stable owner, Licence Number 9019U2, appealed the decision of a Panel of Standardbred Judges, made on Thursday, August 30, 2007 to scratch their race horse, “Vysoke Tatry” from the Breeders Crown Final One Mile Open Mare Pace, scheduled for Saturday, September 1, 2007, at Mohawk Raceway in Campbellville, Ontario.

On Tuesday, July 29, 2008, a Panel of the Ontario Racing Commission consisting of Chair Rod Seiling, was convened to hear the matter.

David M. Prushnok appeared in person. David M. Prushnok was represented by Jean Marc MacKenzie as counsel. Anthony Williams appeared as counsel for the Administration.

Upon hearing the evidence of Patricia Webb, Senior Standardbred Judge, Ontario Racing Commission, David M. Prushnok, owner, and Robert B. Young, driver/trainer/owner/authorized agent and on reading the Factums, Books of Documents and upon hearing the submissions of both counsel for the appellants and counsel for the Administration, the Commission found as follows:

i. The Judges acted appropriately in their decision to scratch “Vysoke Tatry” from the Breeders Crown Final.

ii. The appeal is dismissed.

The Panel gave written Reasons for Decision on Wednesday August 6, 2008, which is attached to this ruling.

Dated this 6th day of August 2008.

BY ORDER OF THE COMMISSION

Robert S. McKinney Executive Director (Acting)

REASONS FOR DECISION

Overview

1Standardbred licensee David Prushnok appealed the decision of the Judges to scratch the horse “Vysoke Tatry” from the Breeders Crown Final Open Mare Pace that was scheduled to be raced at Mohawk Raceway on September 1, 2007. The purse for the race was $392,400 and as a breeder, winning the race would substantially increase the value of future foals from the horse. Mr. Prushnok is the managing partner for Andray Farm of Punxsutawney, Pa., majority owner of the horse along with William Gregg.

Background

2Jean Marc McKenzie, legal counsel for the appellant, Mr. Prushnok, argued that the Ontario Racing Commission (ORC) Judges did not use their own discretion and denied his client his due process when they scratched the horse “Vysoke Tatry” from the final of the 2007 Breeders Crown Final Open Mare Pace. The horse had met all the conditions including qualifying in the race the week prior at Mohawk (August 24) and making the required stakes payments.

3Anthony Williams, legal counsel for the ORC, referenced the appellant’s factum, (Exhibit 1, tab 1) specifically the brief summary of facts and stated that he was prepared to accept them as admissions on consent except for paragraphs 16 and 17. Number 21 he would accept except for the word “approved” and the same for number 23 except for the word “accordingly”. Mr. Williams also acknowledged that Mr. Prushnok had an excellent record as an owner, breeder, and that the basis for scratching the horse had nothing to do with the horse itself as there had been no rule violations concerning it.

4The Judges, according to Senior ORC Judge Patricia Webb, made their decision to scratch the horse after it was entered in to race by its trainer Brett Robinson on Tuesday, August 28, 2007. Closing time for entries that day was 10:30 a.m.

5The ORC, under its out of competition testing program, visited the Brett Robinson stable on August 2, 2007 and reportedly “drew blood” on all of the horses that he was training including “Vysoke Tatry”. On August 10, 2007, Racing Forensics, the laboratory that did the blood analysis identified one potential positive for the illegal drug EPO on the horse “Fox Valley Tribal”. The blood was then sent to the Equine Research Lab in West Chester Pa, where it was confirmed positive for EPO on August 22, 2007. On August 28, 2007, the same day the box closed for entries for the Breeders Crown race, Dr. Duncan, the Official Veterinary Supervisor for the ORC, received the confirmation.

6Judge Webb testified that she received a phone call at home from Dr. Duncan on August 30, 2007, sometime before noon. This was when she first became aware of the positive test for EPO on a Robinson trained horse. SB Rule # 9.06 states that in the case of a positive test a “telephoned notification shall be taken as prima facie evidence”.

7She then received a telephone from call from Brent Stone, Supervisor of Thoroughbred Racing. She stated that Mr. Stone went over with her the standard procedures in place for the Commission when a trainer receives a positive EPO test, that he was just reviewing the process with her, not directing her and that she would review the situation with her other Judges. Those procedures were horses that were to be transferred from the trainer must have prior approval of the Judges and that all horses in to go must be scratched.

8Ms. Webb called her two other Judges, Mr. Paul Cass and Mr. Paul Harrison who are both senior judges in their own right to come in early to deal with the issue. They met at 3:00 p.m. on that day just after Mr. Robinson had met with ORC investigators where he was served a Notice of Immediate Suspension under Section 23 of the Racing Commission Act and a Notice of Proposed Order whereby he was suspended for ten years and fined $40,000. At that meeting the Judges reviewed the matter with Mr. Robinson and informed him of the procedures in place and asked him to confirm that he understood, which he did. Under the rules of standardbred racing, it is the responsibility of the trainer (SB Rule # 3.09.01) to notify the owner “of any material problems affecting an owner’s racehorse in his/her care that would affect its racing potential” not the ORC. Mr. Prushnok was contacted by Mr. Robinson as he confirmed and then spoke to Judge Webb that evening (30th) wherein he was told the horse was scratched and would not be able to race but it could be transferred to another trainer wherein she faxed to him a trainer transfer form (Exhibit 1, tab 1,e).

9Under SB Rule # 26.08 when a trainer is suspended any horse trained by him/her and not owned by the person can be transferred to another trainer with the approval of the Judges. SB Rule 3.10 states that when a licensee is suspended that suspension shall render every horse that person has an interest in or is the trainer, ineligible. The Judges obtained a list of all Mr. Robinson’s horses that he was training including those already entered in to race. They then notified the Judges at the respective tracks of those horses that must be scratched and the reasons for it.

10Ms. Webb, testified that she is not aware of any horse having a trainer transfer approved when it was “in to go” (entered to race) and that while added money events may have their own conditions, they must abide by the rules of racing. Regarding having licensed ORC trainer, Mr. Bob Young, whom Mr. Prushnok proposed to have approved to train the horse and race in the Breeders Crown, she did not believe it to be in the best interests of racing and cited Rules SB # 26.04, the original trainer is responsible for the horses declared into start; SB # 26.06.01, person cannot represent himself as trainer unless actually training; SB # 26.15, the trainer of record must have day to day care and or custody and control. Mr. Young testified he was prepared to sign an affidavit accepting trainer responsibility. Ms. Webb did not believe that would be the case if the horse were to have a positive test nor did she believe it to be in the public interest.

11Mr. Prushnok’s testimony confirmed he was first notified of the scratching of his horse from the Breeders Crown race via a phone call from the trainer of his horse “Vysoke Tartry”, Brett Robinson, on August 30, 2007 following his meeting with the Judges at Mohawk Raceway. He also confirmed that he called Judge Webb that same day and that they discussed how he could have the decision to scratch the horse reversed including having a trainer transfer approved to Bob Young. It was his position that matter was not clear to him but did admit that Judge Webb was firm on that point.

12Mr. Prushnok has an exemplary record in the standardbred industry. He was unaware that his horse along with others had undergone out of competition testing at his trainer’s farm on August 2, 2007. He believed he should have been informed of that event along with the possibility of a positive result on one of the horses when the Racing Forensics made the call on August 10, 2007. With this knowledge he would have moved his horses from Mr. Robinson and it was his position that he was now guilty by association. These events were troubling to him and resulted in calls to him about the matter, which he found embarrassing, given his position in the industry.

13It was his position that the Judges did not use their own discretion thus violating his rights and that the rules would have allowed them to have his horse race in the Breeders Crown. He suggested the aim was to take Robinson down. Mr. Prushnok stated his position has support via discussions with industry persons and backed by previous rulings in the United States. If this event had occurred in that country, according to him, his horse would have raced in the Breeders Crown.

14The Judges, in making their ruling as it related to conditions for trainer transfers, added a condition requiring certain transferred horses to be stabled on the grounds of Mohawk Raceway. Subsequent to that decision, Woodbine Entertainment Group (WEG) announced it would not allow those horses to be stabled or race at its tracks indefinitely. Both Mr. McKenzie and Mr. Williams agreed not to draw WEG into the issue as the decision to scratch the horse was made on August 30, 2007 before the WEG pronouncement.

Issue

15Did the ORC Judges act properly in scratching the horse “Vysoke Tatry” from the Breeders Crown Open Mares Pace? Was Mr. Prushnok denied his rights and should there be other remedies ordered? Should the Judge have allowed Mr. Prushnok to transfer the horse “Vysoke Tatry” to Bob Young and race in the Breeders Crown Open Mares Pace?

Decision

16The ORC Judges acted appropriately in making their decision to scratch the horse “Vysoke Tatry” from the September 1, 2007 running of the Breeders Crown Open Mares Pace. The Judges were correct in their decision not to approve the trainer transfer for the horse for the Breeders Crown Open Mares Pace. Mr. Prushnok was inadvertently the victim of timing but his rights were not denied, therefore no other remedies should be proposed.

Reasons for Decision

17The Judges followed what are standard ORC procedures whereby they scratch all the horses Mr. Robinson had entered into race as soon as they were made aware of the positive test for EPO on the horse “Fox Valley Tribal” which Mr. Robinson trained. Support for this policy is found on p56 of the Moffatt decision, COM SB 005/2008. In terms of procedural fairness, SB Rule #9.06 states that regarding a positive test, an official chemist’s report and the resulting telephone notification to the Commission Administration shall be taken as prima facie evidence. Unfortunately for Mr. Prushnok, his horse “Vysoke Tatry”, was already entered “in to go” on Tuesday the 30th of August, as the entry box for the Breeders Crown races closed at 10:30 a.m. Unluckily for Mr. Prushnok, later the same morning, the Judges were made aware of the positive test for trainer Robinson. As Mr. Williams stated, this put Judge Webb in a box as the horse was already entered and did not allow any time for an approved trainer transfer. SB Rule # 6.13.01 makes a horse ineligible to be entered or start in a race if trained (controlled) by a suspended person, which Mr. Robinson was.

18The Panel accepts Judge Webb’s testimony that Mr. Stone’s phone call was not an order but a review of the standard procedures in place for an EPO positive test, and that the Judges used their own discretion in making the decision to scratch the horse from the Breeders Crown. Judge Webb called her two fellow Judges to come in early to deal with the matter. SB Rules in support of that decision and as referenced in the hearing are as follows:

SB Rule # 5.15 - Judges may declare any horse disqualified or ineligible to race or may scratch a horse that has been declared to race by a suspended person

SB Rule # 6.13.01 - horse is ineligible if under the control of a suspended person

Decisions of this nature and importance have been supported by previous ORC Panels. (ORC Ruling Number Com SB 005/2008, p15)

SB Rule # 26.04 - if a trainer is to be absent,.... he/she is still responsible for the horses declared in to start

19The Judges have a delegated responsibility to protect the public interest. In this regard, this Panel supports that need and while it may have “collateral damage” impacts, as Mr. Williams alluded to, it is necessary to protect the integrity of the business and sport from such egregious attacks through the use by a few, of illegal medications. The backbone of the industry in this regard is the trainer responsibility rules. The Panel supports the Judges’ decision not to allow a transfer of the horse to Mr. Young as trainer for the Breeders Crown notwithstanding his outstanding reputation and record as a trainer. Mr. Young, with the horses for this race mandated to be in retention by 11:00 p.m. the day before the race, would have had care, custody and control of the horse for only a few hours at best, given he had to pick up the horse at the Robinson farm. SB Rule #26.06.01 states that a person shall not represent himself/herself as trainer unless they are actually training the horse. SB Rule # 26.15 states that the trainer of record must have care and control of the horse. Mr. Young could not meet either rule and the public interest must prevail in this regard. Notwithstanding Mr. Young’s professed agreement to accept responsibility, it would not be fair to him or to the public given the importance of the issues.

20The Panel agrees with Mr. McKenzie in his reference to SB Ruling Number Com 017/2008 (Exhibit 1, tab 3), p37, “Owners are entitled to fair treatment”. If not for timing, this whole issue would in all likelihood, in the view of the panel, be moot. The Judges did follow the rules, therefore Mr. Prushnok was treated fairly. SB Rule # 3.09.1(d) puts the onus on the trainer to notify the owner. Judge Webb confirmed with Mr. Robinson of his responsibility and Mr. Prushnok testified that he did receive notice from him on August 30th, after his meeting with the Judges. The other referenced paragraphs are not pertinent to this case. That matter dealt with a track policy wherein this matter relates to a decision of the ORC Judges. Owners, however, do have a responsibility, that responsibility commences with the decision to engage a trainer. That trainer must be mindful and take all reasonable steps to ensure the health and welfare of the horse. Mr. Prushnok is not a “rookie” owner with limited access to how to find a reputable trainer. As a successful owner for twenty-six years, he has the know-how and connections as he testified, to enquire and seek advice as to whom he should hire to train his horses.

21This Panel agrees with Judge Webb that it would be improper to notify anyone on a suspicion of a positive test. This Commission rightly only acts once a confirmatory result is communicated by the official testing body. The financial implications along with the careers and reputations that are the result of a lifetime of toil could be shattered, not to mention the integrity of a business/sport that depends on integrity as its foundation.

22Regarding SB 275/2000 (Exhibit 1, tab 3) referenced by Mr. McKenzie, the Panel gives it no weight. The decision relates to a track policy not an ORC rule and deals with driver changes not a trainer change, which the public fully understands the reasons thereof. The New York Supreme Court decision (Exhibit 1, tab 3) referenced by Mr. McKenzie is viewed similarly.

23The Panel accepts Judge Webb’s testimony that having the race program printed had no bearing on their decision to scratch the horse. It also recognizes that she could not recall ever being made aware of an announced trainer change other than in the case of a claimed horse that was double entered.

24Mr. Prushnok made reference that the outcome of this matter would have been different had it occurred in the United States. This Panel notes that the Ontario Racing Commission is well regarded for promulgating and enforcing fair and commonsense rules of racing designed to protect the public interest, the health and welfare of the horse and the safety of the participants. This well deserved reputation is such that many other jurisdictions, including some in the United States, see fit to adopt many of this Commission’s practices and policies.