Kenneth William Hornick, 2010 CanLII 98984

Ontario

Racing

Commission

TB

RULING NUMBER COM SB 008/2010

COMMISSION HEARING TORONTO, ONTARIO – FEBRUARY 23, 2010

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

AND IN THE MATTER IN THE APPEAL AND REQUEST FOR HEARING OF

STANDARDBRED LICENSEE KENNETH WILLIAM HORNICK

Kenneth William Hornick, (Hornick) was licensed by the Ontario Racing Commission (ORC), as an owner/groom for standardbred racehorses, Licence Number V49865.

On December 11, 2007, officers of the Ontario Provincial Police, seconded to the Medication Control and Drug Task Force of the ORC, executed search warrants upon both the dwelling-house and motor vehicle of Hornick.

Hornick was found to have in his possession, a quantity of drugs, in violation of the Controlled Drugs and Substances Act.

Hornick was also found to have in his possession, a quantity of drugs for sale, which were not labeled in accordance with the Food and Drugs Act.

A search of his computer hard drive revealed e-mails from Hornick to others regarding his purchase and sale of pain killers and bleeder/breather drugs, with information as to prices.

On the 11^th and 20^th days of December, 2007, Hornick made admissions to the investigating officers that he had been in possession of the drug pursuant to prescription, “Aranesp” (“Darbepoetin Alpha”, a synthetic derivative of Erythropoetin), which was intended for use upon two standardbred racehorse.

On May 8, 2008, an Order of Immediate Suspension and Notice of Proposed Order were issued against Hornick by the Acting Director of the Ontario Racing Commission, pursuant to Section 23 of the Racing Commission Act.

On May 15, 2008, Hornick requested a hearing before the Commission.

No stay of the Order of Immediate Suspension was either sought or granted.

On February 23, 2010, a Hearing was held before a Panel of the ORC, consisting of Rod Seiling, Chair.

Hornick appeared in person. Hornick was represented by Joseph P. Fiorucci, counsel. Anthony Williams appeared as counsel on behalf of the Administration.

Upon reading the exhibits filed and upon hearing the submissions of both counsel, the Panel accepted the proposed resolution agreement and ordered as follows:

i. $30,000 fine;

ii. A 10-year suspension (May 8, 2008 to May 7, 2018);

iii. Should Hornick apply for a licence after his suspension expires, he will have to prove to the satisfaction of the Executive Director of the Commission that he is worthy of that privilege.

DATED this 26^th day of February 2010.

BY ORDER OF THE COMMISSION

John L. Blakney

Executive Director

REASONS FOR DECISION

Overview

1. Standardbred licensee, Ken Hornick, requested a hearing before the Ontario Racing Commission (ORC) in relation to an Order of Immediate Suspension and a Notice of Proposed Order, pursuant to Section 22 (3) of the Racing Commission Act that were issued on May 8, 2008.

Background

2. On December 11, 2007, the Ontario Provincial Police, seconded to the ORC’s Investigation Unit, executed search warrants on both the appellant’s home and vehicle. That search revealed that Mr. Hornick had in his possession a number of prohibited substances in violation of the Controlled Drugs and Substances Act, other substances not listed in that Act, and a search of his computer hard drive indicated he was buying and selling drugs such as pain killers and breather/bleeder substances. One of the substances he purchased was Aranesp (DPO).

3. A hearing was held on February 23, 2010, at which time, legal counsel for the Administration of the ORC, Anthony Williams, and for the appellant, Joseph Fiorucci, presented the Panel with an Agreed Statement of Facts and a Joint Submission regarding penalty.

4. Mr. Hornick confirmed to the Panel that he understood that with the tabling of the Agreed Statement of Facts (Ex.1, tab 1) he was admitting to the rule violations. Furthermore, that he was making this admission on a voluntary basis. Those rule violations included the acquisition and use of the illegal, non-therapeutic medication, Aranesp (DPO). Evidence before previous Commission hearings confirmed the fact that the ORC has had a long and well recognized policy that clearly spoke to the consequences of licensees using, possessing or being involved with such illegal, non-therapeutic drugs as Aranesp and the significant penalties that would result. The specific rule is SB No. 6.46.01.

5. Both Mr. Hornick and Mr. Fiorucci stated that they both understood the Panel was not obligated to accept the Joint Submission which recommended that the penalty bet set at a ten-year suspension and a $30,000 fine, a substantive variance from the 15-year and $60,000 originally ordered.

6. In support of the Joint Submission, Mr. Williams stated that with the early co-operation of the appellant and his legal counsel, the Commission was spared the necessity of a hearing and all that would have entailed related to allocation of resources and time. He also stated that the violation occurred before the new penalty guidelines were in place for such offences.

Issue

7. Is the ten-year suspension and $30,000 fine as proposed in the Joint Submission reasonable given the magnitude of the violation and the inherit damage to the sport Mr. Hornick’s “drug store” sales caused?

Decision

8. After carefully listening to the testimony and reviewing the evidence and documentation tabled, the Panel accepts the Joint Submission of a ten-year suspension and a $30,000 fine. In addition, if Mr. Hornick should apply for a licence from the ORC after his suspension expires (May 7, 2018), he will have to prove to the satisfaction of the Executive Director of the Commission that he is worthy of that privilege.

Reasons for Decision

9. The Panel is obliged to give serious consideration to the Joint Submission given that it was brought forward by two experienced and qualified individuals. In giving it due consideration and approval, the Panel notes that legal counsel, in bringing forth such submissions, cannot use this process to usurp the power and responsibility of the Commission.

10. The penalty, as proposed, is reasonable given the time frames involved. As Mr. Williams submitted, this violation occurred before the new, tougher penalties for such violations were established by the Commission. Furthermore, mitigating against a tougher sanction was the early co-operation by the appellant’s legal counsel to resolve the matter without a hearing on the merits of the alleged violations. Additionally, Mr. Williams submitted that the Joint Submission came forward with the support of the ORC’s Administration.

11. The use of illegal, non-therapeutic medications has no place in horse racing. This Commission is committed to eradicating their use by the small few who would seek to gain an unfair advantage. For that reason, this Commission has established and published a substantive penalty regimen that is designed to act as a deterrent. The penalty falls within the guidelines as set at the time of the violation.

12. The Courts have supported the Commission in this effort. In Gray v. Ontario (Racing Commission), [2008] O.J. No. 1235 166 A.C.W.S. (3d) 3 Court File No. 417/07 at para 3, the Court stated, “We reject the submission the penalty imposed was unreasonable. The Commission identified a problem in the industry involving the improper use of EPO. It is the Commission to whom the government has entrusted the integrity of standardbred racing and its decisions deserve deference from the Court, particularly in matters of penalty”. For greater certainty, Aranesp (DPO) is the synthetic version of EPO.

13. This Commission is mandated to protect the health and welfare of the horse and the public interest (integrity). The sale/use of Aranesp (DPO) is a direct attack on both. In the Todd Gray Ruling, SB 023/2007 at para 15 it reads, “Regulators around the world are working to eliminate the use of these drugs because of its potential effects on performance and its detrimental impact on the health of the horse.”

14. Integrity is the life blood of horse racing; without it, it is doomed just as the human body requires a steady flow of life-giving plasma to survive. The Court has been supportive of the ORC in its need to have a penalty regimen that can protect the sport’s integrity. See Brian Scott v. Ontario Racing Commission, Divisional Court File No. 07-DV-001344 wherein it reads at para 47 in dealing with the reasonableness of the penalty: “The Commission is under a duty to exercise its power to impose a suspension and penalty under ss. 19-22 of the Act in a manner that is in the public interest, and this calls for the Commission to apply its expertise in regulating horse racing. Regulatory sanctions imposed in the public interest are preventative in nature and prospective in application. A public interest order properly may take into account deterrence. In my view, the ORC carefully considered what has become a scourge within the horse racing industry. Performance enhancing drugs threaten the integrity of the entire industry. In my view, the ORC properly took into account that there was a significant need for general deterrence in a case such as this given the level of drug abuse in the industry.”

DATED this 26^th day of February 2010.

Rod Seiling

Chair