Ontario Racing Commission

TB

RULING NUMBER COM SB 004/2009

COMMISSION HEARING TORONTO, ONTARIO – FEBRUARY 25, 2009

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

AND IN THE MATTER OF THE APPEAL OF STANDARDBRED LICENSEES

STEPHANE LAPOINTE AND JOHANNE ST. PIERRE

Standardbred licensees Stephane LaPointe and Johanne St. Pierre appeal to the Commission from Judges’ Rulings SB 37739 and SB 37284, dated September 21, 2008.

On February 25, 2009, a Panel of the Commission consisting of Chair Rod Seiling, Commissioners Brenda Walker and Pam Frostad, convened to hear the appeal.

Luisa Ritacca appeared as counsel for the Administration. The licensees were not present and were not represented by counsel.

Upon hearing the evidence presented by the Administration and upon reviewing the written submissions filed, the Ontario Racing Commission denies the appeals. The licensees are each fully suspended for fifteen days and fined $1,000.00. Further, the licensees are ordered to pay costs in the amount of $1,500.00 (collectively) on the basis that the appeals brought were frivolous. The Panel’s reasons for decision are attached hereto.

DATED at Toronto this 27th day of February 2009.

BY ORDER OF THE COMMISSION

John L. Blakney Executive Director

REASONS FOR DECISION

Overview

1Standardbred licensees, Stephane LaPointe and Johanne St. Pierre, appealed Judges’ Rulings Nos. SB 37739 (Ex. 3, tab 1) and SB 37284 (Ex. 3, tab 2) respectively, wherein they were both fined $1,000 and suspended fifteen days for violating the Rules of Standardbred Racing.

Background

2A de novo hearing was convened on February 25, 2009 to hear the appeals of standardbred licensees Stephane LaPointe and Johanne St. Pierre. Both appellants chose not to appear at their hearing. The appellants took the same approach to the Judges hearing that was held at Rideau Carleton Raceway on September 21, 2008, in which they were both found guilty of violating the Rules of Standardbred Racing, specifically 6. 20 (a), (b) and (c), 26.05 and 26.02.01.

3The notice of the hearing (Ex. 3, tab 9) dated January 13, 2009, was given in ample time so that inconvenience regarding timing was not at issue.

4Luisa Ritacca, legal counsel for the Administration of the Ontario Racing Commission (ORC), entered into the record Exhibit #1, a sworn affidavit from Ms. Brennagh Smith, an associate of hers at Stockwoods LLP. That document outlined the contents of a phone call between Ms. Ritacca and herself with Ms. St. Pierre on Monday, February 23, 2009. During the call, Ms. St. Pierre advised them that she and Mr. LaPointe, her common law husband, had no intention of attending the appeal that they had requested.

5Ms. St. Pierre said the Commission could do what it wanted with the appeal as both were done with horse racing. She was asked if they intended to withdraw their appeal and that it must be done in writing or the hearing would have to proceed, and that they could be assessed costs for the hearing even if they were not in attendance. Ms. St. Pierre advised then that they would then withdraw their appeal and she was advised it must be done in writing.

6Two subsequent attempts were made by the Administration by way of emails (Ex. 2) to have the appellants file a written request withdrawing their appeals. The contents of the emails were read into the record (paraphrased) by a translator who was engaged by the Administration to assist the appellants in the proceedings.

7The emails confirmed that the appellants had no intention of attending the scheduled hearing and suggested that the ORC was picking on small people, that they had already lost (prejudged), that there was no proof as to the allegations, that they were only racing in Ontario because of the lost racing opportunities in Quebec, and that by not attending, they were not admitting guilt.

8With no formal request from the appellants to withdraw their appeal, the hearing proceeded.

9The Administration put forward an unchallenged set of facts. They were that on July 14, 2008, in the mid afternoon, Dr. Lynn Blackburn, the ORC track veterinarian for Rideau Carleton Racetrack, observed a pickup truck pulling a horse trailer pulled off to the side of the exit ramp on Highway 417. She observed the passenger door open but did not see any person inside or outside the vehicle. She did not stop as she was alone and also felt it too dangerous given it was right on the exit ramp but found it odd for the truck to be stopped there given there was a gas station about one hundred yards further down the road.

10She took notes as to the truck and trailer and proceeded to the track where she waited with the track security to see if the same truck and trailer entered the track grounds. She did see the vehicle and trailer enter and the track guard confirmed that there were three horses in the trailer, R L Salina, R L Fun and Lychee. R L Salina was entered into race at Rideau Carleton that day in the third race (Ex. 3, tab 7).

11Dr. Blackburn then notified ORC Judge Campbell of what she had witnessed. She was subsequently asked to examine the horse, R L Salina, which by that time had been taken to the paddock by Mr. LaPointe.

12Her examination of the horse revealed a dried patch of blood directly over the left jugular vein. She testified that there is no reason, other than to affect performance, to inject a horse on the day it is to race. The only other likely explanation for the blood would be a horse fly bite but she stated that was not plausible given there were no other marks on R L Salina or on the other two horses, which she also examined but found no marks on either one.

13ORC investigator, Charles Beirnes, interviewed Mr. LaPointe who stated he had not injected the horse, R L Salina, but that he has injected horses in the past under a veterinarian’s supervision. He told Mr. Beirnes the reason for stopping was to put gas in the truck and to check on the horses. Ms. St. Pierre, in her interview with Mr. Beirnes denied any knowledge of any injection of the horse and told him she was not at the race that day because she had to work at her full time job at a car dealership in Jolliette, Quebec.

14The ORC Judges also requested that the Rideau Carleton security search the truck and trailer. Nothing illegal under the rules of racing was found (Ex. 3, tab 8).

Issue

15Was the dried blood patch on the left jugular vein the result of a needle injection? Were the appellants, Stephane LaPointe and Johanne St. Pierre guilty of the rule violations as per the Judges’ rulings in failing to fulfill their trainer responsibility roles? Were the appellants guilty of not naming the actual trainer of the horse R L Salina for the third race at Rideau Carleton Raceway on July 14, 2008?

Decision

16After carefully listening to the testimony and reviewing the evidence and the submissions, the Panel denies the appeals of both Stephane LaPointe and Johanne St. Pierre. The appellants are also fined a sum of $1,500 for a frivolous appeal (SB 24.08).

Reasons for Decision

17On a balance of probabilities the evidence clearly points to the fact that the horse, R L Salina was injected with some substance by one of the occupants of the truck just prior to arriving at the track on July 14, 2008. The Panel accepts the testimony of Dr. Blackburn that it was highly unlikely that the blood source could have come from a fly bite and that there is no reason, other than to affect performance, to inject a horse on its race day. Furthermore, a reasonable person would not stop on a busy exit ramp of a major highway to either check the horses or put gas in the vehicle when a safe alternative was just a “hundred” yards down the road. Therefore, they are guilty of violating SB Rules Nos. 6. 20 (a), (b), (c) and 26.02.01.

18The Commission must take the appropriate steps to ensure the health and welfare of every horse is not compromised. This means it must discourage any attempt to inject a horse with any substance that is not directed for its health and well being or that could impact on the outcome of a race. To do anything else would constitute a dereliction of the responsibilities of the Commission under the Racing Commission Act, 2000. Deterrence and denunciation by a Panel of this Commission for such acts is supported in the Kelly Lester, Robert Zubkoff v. Ontario Racing Commission (Court File Nos. 135/08 and 136/08).

19The appellants violated SB Rule No. 26.05 as Ms. St. Pierre could not possibly fulfill her duties as trainer of the horse as listed in the program given her admission to investigator Beirnes she could not attend the races as she was busy with a full-time (40 hrs. per week) job. Mr. LaPointe, who had a valid ORC trainer’s licence, should have been programmed as the trainer.

20The appellants were warned on two separate occasions about the possibilities of being levied an extra fine if they did not withdraw their appeal if they were not going to attend the hearing. As well, the notice of the appeal gives a similar warning. Their cavalier attitude towards the entire process cannot be tolerated, as it is an abuse of scarce resources of the Commission. The actual costs far exceed the extra fine and this Panel suggests that the governing board of the Commission investigate implementing a policy to recover actual costs, should a similar case arise in the future.

21The Panel must refute the allegations made by the appellants in their emails to Ms. Ritacca (Ex. 2). This Commission has established policies with respect to due process that it holds as a sacred trust. These policies guarantee every licensee his/her right to due process no matter the size or location not to mention race, colour, creed, etc. To suggest otherwise is unwarranted and without merit.