RULING NUMBER COM TB 009/2009
COMMISSION HEARING TORONTO, ONTARIO – JULY 30, 2009
IN THE MATTER OF THE RACING COMMISSION ACT S.O. 2000, c.20;
AND IN THE MATTER IN THE APPEAL OF
THOROUGHBRED LICENSEE GARY AIMONETTI
On June 7, 2009, the Stewards issued Ruling Number TB 5857/09 rendering the horse, YUKARI, ineligible to enter or race in Ontario for a period of ninety days, June 6, 2009 through September 3, 2009, pursuant to Rules 15.04.04, 16.11 and 16.11.01 of the Rules of Thoroughbred Racing.
On June 12, 2009, Gary Aimonetti (“AIMONETTI”), trainer of YUKARI, filed an appeal of Ruling Number TB 5857/09 in respect to the duration of penalty.
On July 30, 2009, a Panel of the Ontario Racing Commission (“ORC”), comprised of Vice Chair Hon. James M. Donnelly, convened for the purposes of hearing the appeal.
Jennifer Friedman represented the Administration of the ORC. Conrad Cohen, Chair of the Horsemen’s Benevolent and Protective Association, Rules and Medication Committee, appeared as a representative for Aimonetti.
After considering the Agreed Statement of Facts, appraising the testimony of Richard Grubb, Sue Leslie, Maxina Hunt Von Herbing and Aimonetti, reviewing the exhibits filed and upon hearing closing submissions, the Panel dismissed Aimonetti’s appeal as follows:
- There will be no reduction of the ninety-day suspension period.
The Panel’s Reasons for Decision is attached to this Ruling.
Dated at Toronto this 17^th^ day of August, 2009.
BY ORDER OF THE COMMISSION
Rob McKinney
(Acting) Executive Director
REASONS FOR DECISION
1The decision in this matter was rendered July 30, 2009, with Reasons to follow. These are the Reasons. First a procedural matter. In the Ernie Hendry decision (SB Ruling 009/2009) reference was made to a future consideration of the right to appear before the Ontario Racing Commission (ORC) as a “representative” of a party to the appeal. That consideration follows:
Representation before the ORC
2The Statutory Powers Procedure Act has been amended as follows:
“A party to a proceeding may be represented by a representative” (Section 22). “Representative” is defined as a “person so authorized under the Law Society Act”. That is a licensed lawyer or licensed para-legal (Section 1 (1). The amendment also provides:
a list of exceptions to that definition for persons appearing as representatives before Administrative panels.
That the prospective “representative” file a “Declaration of Representative” no later than ten days prior to the Hearing.
3Conrad Cohen, (Cohen) Chair of the Horsemen’s Benevolent and Protective Association (HBPA) Rules and Medication Committee, sought leave to appear as representative for the appellant Gary Aimonetti (Aimonetti). Mr. Cohen had filed no “Declaration of Representative” – not a case of late filing.
4Two issues arise:
Since Mr. Cohen is not licensed by the Law Society as a lawyer or para legal, in order to represent Aimonetti, he must fall within one of the statutory exceptions.
If Mr. Cohen is within the exception and thereby qualified:
i. Does failure to file the Declaration make an adjournment obligatory?
ii. Is that failure to file procedural only being intended to provide opportunity to verify his qualification? If so, does acceptance of his qualification render the filing issue moot so in result no adjournment is necessary?
5Two of the exceptions identified by the Statute and upon the “Declaration of Representative” form are:
“Persons who are not in the business of providing legal services and occasionally provide assistance to a friend or relative for no fee.”
Constituency assistants working in MPP offices.
Mr. Cohen’s status
6Elaboration is unnecessary. With a lifetime background in horse racing, Mr. Cohen is well known in the industry. In the business of providing legal services, he is not.
7The HBPA (Thoroughbred) and its Standardbred counterpart, OHHA, have a long history of providing assistance to licensee members on ORC Hearings without fee.
8It is unnecessary to embark upon a dictionary definition, legal dissection and analysis of the term, “friend”. From the context, it must be obvious that the term has its ordinary usage. If one does not know what a friend is then a dictionary won’t help. Provision of this type of assistance by the HBPA without fee is a context which I accept as “friendly” compatible with the adage “a friend in need is a friend indeed”.
9The assistance so provided has been of high quality by reason of HBPA and OHHA experience, expertise and dedication to horse racing. Common sense dictates that the interests of the appellant, the ORC and the public are served by representation to this standard. Protection of the turf of lawyers and para legals does not snuff out those multiple rights.
10Conjuring up circumstances where the appellant’s interest is better served by representation through the HBPA than by representation by a “constituency assistant working in MPP offices,” both presumably acting without fee, is not difficult. Status as a worker in an MPP’s office must, and must be seen to carry no advantage. Regarding relevant expertise, the high probability in tennis terms is, advantage HPBA.
11Accordingly, Mr. Cohen’s qualification as a representative is accepted. With all parties present and ready to proceed and with the issue being an on-going suspension of the horse’s eligibility to race with the days ticking by, common sense militates against adjournment on the technical ground that the declaration was not filed. Furthermore, there being no need to check on Mr. Cohen’s licensing status with the Law Society, nothing of substance is gained and much is lost by an adjournment.
12Accordingly, neither the spirit nor the letter of the substantive law being violated, the Hearing proceeded with Mr. Cohen and without adjournment.
13Before leaving this issue of representation, the Administration might usefully review:
the efficacy of the mechanism by which the pre-condition of filing a declaration is brought to the appellant’s attention
the potential for conflict between the 10-day notice period and short notice emergency hearings.
This Appeal
14This appeal against a Stewards' ruling rendering the horse YUKARI ineligible to race in Ontario for a period of 90 days proceeded as scheduled on July 30th, 2009.
15On consent the Administration filed a joint book of documents. An Agreed Statement of Facts included the following:
Gary Aimonetti ("AIMONETTI") is licensed as a Trainer/Exercise Person and was trainer of the horse, YUKARI
Bryan J. Porter ("PORTER") is licensed as an Owner and was the owner of YUKARI.
On May 31, 2009, YUKARI finished second in the fourth race at Woodbine. Following the race, a blood sample was taken from YUKARI.
The sample tested positive for Acepromazine and its metabolite 2-(1-Hydroxyethyl) Promazine, a Class III drug. (RCI Uniform Classification Guidelines)
On June 6, 2009, the Stewards received notification of the positive test.
On June 7, 2009, the Stewards issued Ruling Number TB 5857/09 rendering YUKARI ineligible to enter or race in Ontario for a period of ninety days, June 6 through September 3, 2009, pursuant to ORC Rules 15.04.04, 16.11 and 16.11.01.
On June 12, 2009, Aimonetti filed a Notice of Appeal and requested a stay of Ruling Number TB 5857/09.
On June 25, 2009, the Executive Director denied Aimonetti's request for a stay.
16There was no issue about the validity of the positive test. The concern is penalty.
Discretionary Penalties and Fixed Minimum Penalties
17There are two types of penalty:
- A discretionary penalty permitting an assessment of quantum. The determination of the quantum is based on standard sentencing considerations as discussed in the Scott case, SB 021/2007, June 11 & 12, 2007:
“88. The amount of the fine is properly determined by the degree of responsibility and the gravity of the offence without regard to the wrongdoer’s resources. Thereafter that amount is subject to adjustment on considerations of hardship and ability to pay.”
- A mandatory minimum penalty permitting no reduction through the exercise of discretion based on extenuation or otherwise.
18Precedents for minimum penalties can be cited from the Criminal Code (example - drinking and driving offences). This is the case when the offence is deemed so significant that an established minimum penalty is demanded in the public interest.
Discussion
19Through his submissions and supported by the evidence of Sue Leslie, OHRIA President and HBPA President, Mr. Cohen seeks a reduction in the ninety-day suspension of Yukari consequent upon the Class III violation. No contention is advanced against the principle of penalizing the owner by prohibiting the horse from racing for a period of time. The plea is for a reduction of the ineligibility period premised upon mitigating circumstances. That abatement request is made in the face of the fact that the rule imposes a mandatory 90-day suspension for breach with no discretionary power to reduce that penalty.
The Ninety-Day Rule
20The Ninety-Day Owner Responsibility Rule was implemented in the context of industry-wide response to the insidious advance of drugs and illegal medications in the racing industry. That industry, although not perfect, is functional. Through its various phases and locations, it provides a livelihood for many families. Opportunity is provided for an interesting, challenging and satisfying occupation for a significant component of the population, principally beyond the urban centres. The common goal of ORC licensees must be to sustain a viable industry.
21On how to achieve that goal, opinions differ. Self-interest, a powerful motivator, may obscure perception and subconsciously or otherwise influence judgment.
22The objective underlying the ninety-day Rule was to engage the owner on the drug issue. The specific risk was that with strict liability standards applying to trainer responsibility, the industry was defenseless and inordinately victimized by this scenario:
A positive test.
The owner disclaims – I have no responsibility. I pay the bills and tell the trainer to abide by the rules.
The trainer claims
o “Neither I nor anyone in my employ administered the illegal substance.”
o “I took all reasonable precautions, locked medication cabinet” and so on.
- There is no direct evidence as to whose was the guilty hand.
23The final result – with no one called to account, illegal drugs and medication can be administered with impunity.
24That death threat to the industry precipitated a broad strategy which included:
The Medication Task Force supported by the ORC, the racetracks and Horse Peoples’ Associations.
Out-of-competition testing of horses.
Increased in-competition testing of horses.
Increased investigative activity.
Extensions of search and seizure authority.
Change of performance vigilance.
Probationary licensing with restrictive terms and condition.
Requirement that Commission-licensed veterinarians shall be the only persons to administer certain drugs and medications.
Radically increased penalties for serious violations. Those penalties were approved by the Divisional Court in the Scott case (SB Ruling 021/2007) as a reasonable response to the drug threat.
Classifying certain trainer responsibility and drug related offences as absolute liability offences. (formerly strict liability offences)
The Inflexible Penalty
25The penalties introduced were known by the Commission to be as necessary as they were harsh. Their purpose was not to be inflicted upon violators. The purpose was to deter potential violators so that ideally the penalties would never be required. They were intended to be of such powerful deterrence that the risk of punishment on that scale would dissuade even the most foolhardy.
26As a component of that industry response the owner responsibility ninety-day Rule was introduced. Owners fund the industry. Their active and aggressive involvement with trainers will be a major component in preserving that industry. At the time the 90-day Rule was introduced it was recommended that the rule requiring written owner/trainer contracts should be more rigorously enforced – further that provisions relating to the owner responsibility rule be incorporated into the written contract.
27As stated in the Todd Gray Reasons, Ruling July 16, 2007, SB 023/2007:
“45. Owner responsibility and banning the horse for extended periods could on a risk/reward analysis make the doping exercise far less attractive. The pressure would be on trainers to desist and safeguard rather than perhaps the reverse (life on the edge?).”
28The Hamather Reasons provide in part as follows (SB 017/2008 May 15):
“60. The adage “money talks” may suggest avenues for exploration. Is the last hope for the industry to have the owners who fund the process flex their collective muscle?
Should owner/trainer contracts be mandatory? If so, should certain terms and conditions be mandatory? What would be wrong with the trainer’s record for racing violations and particularly suspensions being a schedule to the contract? Should there be a clause specifically prohibiting the improper use of drugs and medication, possibly with a cancellation of training accounts for a fixed time following a breach? If the WEG rejection or some variation thereof is upheld, should that peril to the owner be disclosed in the contract? Should there be reference to the recent ORC rule preventing the horse from racing for 90 days following certain positive tests?
Should the racing records of other trainers be available to owners to permit a fully informed choice of trainer? If owners are to be exposed to this type of peril, should racing not be obliged to give owners accessible tools for self protection? With that background, owners could practice due diligence in making a trainer selection.”
29The 90-day rule was the subject of comment in the Scott McFadden case 2009 ORCD No. 6 as follows:
“28. Rule 11.10.01 confirmed the concept of owner responsibility as a part of the industry response to the illegal medication plague. The importance of owner responsibility was underscored by designation as an absolute liability offence. (Rule 11.10.03), General Deterrence, was one of the objectives underlying the new Rule. Inherent in general deterrence is a hardship element. Deterrence is eroded if compassion overwhelms hardship absent good cause.
Rule 24.03 confers discretion to waive provisions in the Rules of Racing. That waiver is not whimsical. There is a precondition in that the waiver must not be considered prejudicial to the best interests of racing.
That precondition cannot be said to exist in this case. Clearly the overall good of racing takes precedence over the convenience and financial benefit of a sale of these horses now as opposed to about six weeks hence.”
30To introduce a policy of tinkering with the length of the suspension under authority of Rule 24.03 would be folly for two reasons:
The underlying principles of drug free racing and general deterrence as public interest concerns simply overwhelm individual hardship claims. An ambivalent approach to penalty erodes the general deterrence component. Integrity is not measured by halves - or by any other fraction.
To foster further appeals through an arbitrary and inconsistent application of penalty is unfair to the licensees (inducing a false hope for success) and the ORC (wasting adjudicative costs).
31A similar result occurred in the Vanderkemp case (SB Ruling 016/2009). The enormity of the public interest overwhelmed individual hardship and precluded Rule 24.03 intervention in violations resulting in the horse’s ineligibility for 90 days.
32The 10-year EPO suspension in the Scott case was upheld upon appeal to the Divisional Court. This constitutes impartial authoritative validation of the gravity of these issues which is in harmony with resolute response by the ORC.
Policy Decision
33Mr. Cohen in effect is expressing a philosophic difference contending for a discretionary penalty for a Class III violation. That is a policy matter for the industry generally and for the Commission specifically, not for this Panel.
34The 90-day Rule was introduced with full awareness of the distinction between penalty ranges and fixed minimum penalties. There was awareness of the impact of extenuating circumstances where there is an available penalty range. With that background a policy decision was made. A fixed minimum penalty was established. The rule was implemented and adequately promulgated. Similar to every innovation in the industry, it was known that the Rule would encounter opposition.
35Nonetheless, it was deemed to be a vital component in a vigorous and sustained response to those whose irresponsible greed would destroy the industry. That Rule is a part of the whole response and so it will remain – an effective and necessary element in the war against drugs in the horse racing industry.
36In passing, it is noted that Cohen referred to the Association of Racing Commissioners International (RCI) Model Rules of Racing. The content thereof is interesting, informative and instructive. However, it is in no way binding, particularly when in conflict with ORC Rules.
37Accordingly, there will be no reduction of the ninety-day suspension period.
38These Reasons are tendered neither in the hope nor expectation that all will agree with the disposition. They are tendered in the confidence that the means to understand the basis for the penalty are hereby available.
DATED this 17^th^ day of August 2009.
James M. Donnelly
Vice Chair
Attachment
Thoroughbred Rules
Rule 15.04.04
Any horse that tests positive in Ontario for any of the following shall be ineligible to race for a period of 90 days from the date of the identification of the horse with the positive test and will be placed on the Stewards’ List in accordance with Rule 16.11.01:
Class I;
Class II;
Class III;
TCO
2;Substance determined to be non-therapeutic
Any person who violates this rule shall be subject to a fine and/or suspension.
Rule 15.04.06
Rule 15.04.04 and Rule 15.04.05 shall be absolute liability offences.
Rule 15.05.01
Upon a finding of a violation of the positive test rules, the Stewards shall consider the classification level of the violation as currently established by the Uniform Classification Guidelines of Foreign Substances as promulgated by the Association of Racing Commissioners International, Inc.
Rule 16.11
The Stewards may place the name of any horse on the Stewards’ List for any reason they may deem to be proper. During the time a horse’s name is on such list, it shall not race, nor shall it be entered in any race, except that it may be nominated in a stakes race. Only the Stewards shall remove a horse’s name from the Stewards’ List.
Rule 16.11.01
Any horse that tests positive for any of the following shall remain on the Stewards’ List for a period of 90 days from the date of the identification of the horse with the positive test:
Class I;
Class II;
Class III;
TCO
2;Substance determined to be non-therapeutic
Rule 24.03
If any case occurs which is not or which is alleged not to be provided for by the rules or if the imposition of the rules would prove to be a hardship on any licensee, it shall be determined by the Commission in such manner as it believes is in the best interest of racing. The Commission may also, in its absolute discretion, at any time waive the breach of any of the rules, which waiver or breach the Commission does not consider prejudicial to the best interests of racing.
“The corresponding Standardbred Rule is 1.09.”