Greg Liezert v. Administration of the Ontario Racing Commission, 2011 CanLII 98221

RULING NUMBER COM SB 019/2011

COMMISSION HEARING TORONTO, ONTARIO – MARCH 16, 2011

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

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

STANDARDBRED LICENSEE GREG LIEZERT

Standardbred licensee Greg Liezert (“Liezert”) appealed Ruling SB 41865, dated December 30, 2010, wherein he was suspended for 2 years (January 31, 2011 – January 30, 2013), plus 2 years probation (January 31, 2013 – January 30, 2015), for committing an act of cruelty to the horse “Brittle Truth”, in violation of 6.22 of the Rules of Standardbred Racing.

On March 16, 2011, a Panel of the Ontario Racing Commission (“ORC”) consisting of John W. Macdonald as Chair, Commissioner Brenda Walker and Commissioner Dan Nixon, was convened to hear the appeal.

Angela Holland appeared as counsel for the Administration, Liezert attended the hearing, and Gerry White appeared as counsel for Liezert.

Upon hearing the testimony of Senior Judge John Campbell, Chance Stewart, Audrey Dumont, Charles Beirnes, Dr. Linda Berthiaume-Atack, Dr. John Atack, Dr. David Bruce Duncan and Liezert, upon reviewing the exhibits filed and upon hearing the submissions of counsel for the Administration and counsel for Liezert, the Panel denied the appeal.

The Panel’s Reasons for Decision is attached to this Ruling.

Dated at Toronto this 19^th^ day of April, 2011.

BY ORDER OF THE COMMISSION

John L. Blakney

Executive Director

REASONS FOR DECISION

1. Angela Holland appeared for the Administration of the Ontario Racing Commission (“ORC”) and Gerry White appeared as counsel for the Appellant, Greg Liezert (“Liezert”) – ORC License K26126. The Panel of the ORC was composed of Commissioners John Macdonald, Brenda Walker and Dan Nixon.

2. Mr. White had a preliminary question relating to the possibility of bias because of a previous hearing with Liezert involving a possible stay of the Order of the Judges at Rideau Carleton Raceway (“RCR”) prohibiting Liezert, inter alia, from entering the back stretch at RCR without the consent of a Judge. That hearing was considered a premature motion since no Judge had refused a request from Liezert and no request had been made by him at the time of the motion.

3. Mr. White requested the exclusion of witnesses and that Order was given. There were three exhibits introduced being 1) the ORC Book of Documents, 2) the ORC Factum, and 3) the ORC Supplementary Book of Documents. Mr. White had not filed a Factum as he felt it was not needed with the basic facts being accepted as set out in the ORC material.

4. The Judges at RCR had issued a Ruling dated December 30, 2010 (#SB 41865) suspending Liezert for two years commencing January 31, 2011 to January 30, 2013 inclusive and probation thereafter for two years on the conditions set out in such Ruling for the violation of ORC Rule 6.22. This case is an appeal from such Ruling.

5. There had been a previous Order ((#SB 41864) suspending Liezert for 30 days under ORC Rules 6.02(e), 6.17(c) & (d) and 6.20(a) and (b). This offence involved the causing of a disturbance using insulting, offensive and improper language towards another participant/official all considered misconduct prejudicial to the best interest of racing during the period from October 25, 2010 to October 29, 2010 in the back stretch area of RCR. In addition, Liezert was put on probation for two years to keep the peace and be of good behaviour from January 31, 2011 to January 30, 2013.

Facts

6. There were seven witnesses and a summary of the evidence given by each of them is as follows:

A. JOHN CAMPBELL

7. He is a Senior Judge and issued the Ruling (Exhibit 1, Tab 22) with respect to the mare BRITTLE TRUTH (the “mare”) as a result of the injury to her from a horse shoe nail found in her left hind hoof. On October 29, 2010 the mare was found to be lame early in the morning when she was taken out of her stall. The mare was owned by Linda Berthiaume-Atack (“LBA”) a veterinarian based at RCR at all relevant times.

8. Liezert had been the trainer of the mare for LBA until October 27, 2010 when LBA moved the horse to the Chance Stewart Stable to be trained by him. Liezert was unhappy as a result of this move and he is said to have verbally abused LBA and she felt threatened and feared for her safety. The Judges ordered Liezert not to have any contact with LBA.

9. At tab 8 of Exhibit 1 there is an Incident Report which Mr. Campbell reviewed following comments on tabs 3, 4, 5 and 7. He concluded that the nail could not have accidentally entered the mare’s foot and that she was sound when put in the stall the evening before. The nail was deeply driven into the frog, it was bent inward and directed to the centre which is not normal as the nail should go outward. The shaft of the nail was clean, the point was sharp and the head was discoloured.

10. He interviewed Dr. John Atack and, the commission veterinarian, Dr. Blackburn and they were both of the opinion that the mare would become immediately lame as a result of any such injury. They were positive that someone had driven this nail into the mare’s foot. It appeared that the lock on the stall door had been tampered with. He was also advised by Mr. Stewart that Liezert on October 28, 2010 had been asked to leave the Stewart barn as he had become abusive and upon leaving and the barn door being closed, he was said to have stated: “you will have to do more than that to keep me out”.

11. Mr. Campbell then called in ORC investigator Charlie Biernes to review and report on the incident and the injury to the mare. He advised that there was no security and only sporadic personnel at RCR during dark hours and days. At the hearing with the Judges, Liezert needed time to obtain counsel. Liezert appeared with John McMillan of the local horseman’s association and the violation was explained to him at the hearing which took place on December 30, 2010. Liezert initially wanted all witnesses at the hearing but later decided he did not want to interview them.

12. The Judges issued a Ruling as to the violation of Rule 6.22 (Exhibit 1, tab 22). They felt he had motive, opportunity and issues with LBA. Mr. Campbell acknowledged that he had prepared the report found in Exhibit 1, tab 23. The decision was unanimous with the main discussion relating to the penalty. The decision was the suspension referred to above.

13. On cross-examination he acknowledged that he did not see the nail, knew that cheaper classes of horses raced on the night of October 29, 2010 but did not recall that Liezert had intended to claim the mare. He had spoken to LBA and that Liezert was said by her to be harassing her and threatening to claim her mare during the time from October 25-29, 2010. He was aware that there was a confrontation in the barn area but denied telling Liezert not to claim the horse which could have been done even though the mare was scratched.

14. He acknowledged that there could be as many as six farriers at RCR and that there were a number of trainers that did their own shoeing. In the interview with Liezert, he acknowledged that he was aware of Liezert acting for the Bourgon brothers and that Liezert had said he did not injure the mare and that he had left the track when there was no-one at the gate. He noted that Liezert stated that he had put the horse away that he was racing, left the track and returned home, following which he went to a bar in Cardinal.

B. Chance Stewart

15. Mr. Stewart knew Liezert through LBA and he reviewed the incident at his barn, previously referred to, that had occurred on October 27. LBA was there and Liezert came in “yelling like a lunatic”. He was cursing and swearing at LBA and when Mr. Stewart ordered him out of the barn and shut the door, Liezert said it would take more than that to keep him out.

16. The day before (October 26) Mr. Stewart had received the mare that was now to be trained by him. On the morning of the 29^th^ he went to the stall and the mare could not move so he called LBA. Dr. John Atack arrived and examined the mare and found the nail that had been in the crease of the frog and he assisted by pulling the nail out. It was a new nail and had been put in as far as it could go. In his view the nail could not have been picked up from the floor as the stall was newly prepared and that stone dust and shavings had just been put down. He also noted that it appeared that someone had been in the stall because the lock had part of the hook missing.

17. In his view, the injury was not an accident and the nail had been hammered in by somebody. He advised that the mare had been put down after numerous surgeries.

18. On cross-examination he called in to scratch the horse on the 29^th^. He again mentioned that Liezert had come into his barn with name calling, yelling and screaming at LBA. He stated that Liezert had said that he and/or others would claim the mare. He acknowledged that Stephane Pouliot had recently pulled the mare’s shoes in front. LBA was given the nail that had been removed which she was taking to show the Judges. He finished racing early on the October 28^th^ (2^nd^ race) so that after he checked the doors and put on the fire snaps; he left. He stated that he had five to seven horses in the barn at the time. He does not shoe horses.

19. On re-examination, he indicated the nail was next to the frog, was down in and not sideways and it would take a lot of force to put the nail where it was. He had to pull it out. The final result was the mare was put down in Milton after they had tried to save her.

C. Audrey Dumont

20. She works for Chance Stewart at RCR and she knew that LBA was a veterinarian and the owner of the mare. She knew Mr. Liezert and was there when he first “stormed in” to their barn where he called her a rude name. He was visibly upset and seemed to be scaring her as she was there at the time.

21. On Friday morning, October 29^th^, she tried to take the mare out of the stall and the mare would not walk so that LBA was called. Dr. John Atack then arrived and with a hoof pick he found the nail and she heard a click at that time. She identified the location of the nail on Exhibit 4 being very close to the frog on the inside between #s 18 and 19 on that exhibit.

22. She was not sure as to whether or not Liezert had put the nail in the hoof but she went to his barn and confronted him and called him a “piece of shit”. He did not appear upset and did not deny her accusation. He ordered her out of his barn.

23. On cross-examination she acknowledged that on the day of the discovery of the injury LBA was more inclined to crying than being angry. She attributed this to LBA’s attachment for the mare. She recalled Liezert saying that he would claim the mare and the problems when Chance Stewart shut the door on Liezert. She explained that she told Liezert “you know what you did wrong”. He also said “I train a horse for a woman” and though he did not say exactly what happened he spoke with more than a smile which she described as a “creepy smile”.

D. Charles Beirnes

24. He is an ORC investigator and his report is at Exhibit 1, Tab 13 and he interviewed all those involved and reviewed the issues and name calling between Liezert and LBA. He was also responsible for the due diligence report found at Exhibit 1, Tab 1 showing the criminal record and regulatory orders against Liezert. He noted that there had been convictions not disclosed by Liezert in his ORC applications and he reviewed a number of text messages that had been sent by Liezert to LBA (Exhibit 3, Tab 1).

25. On cross-examination he acknowledged that while there was a number of text messages - 107 (Exhibit 3, Tab 1) it was difficult to tell if there were any missing messages since it was primarily from Liezert to LBA from October 26 to 12:47 a.m. on October 29. The information came from the cell phone of LBA. When he asked Liezert to account for the time after he left the track on the 28^th^ he was advised that he had gone to his residence in Cardinal and then to a bar which was close by until early the next morning.

26. He did not recall Liezert’s comment that he was going to claim the mare nor did he know the number of blacksmiths at RCR. Liezert denied to him that he had put the nail in the hoof of the mare. He recalls being told that Liezert had left the track with clients for whom he had driven that evening and that he had been at a bar and was late arriving at the track the next morning.

E. Dr. Linda Berthiaume-Atack

27. She is a veterinarian and owner for more than 25 years and met Liezert through James Copley starting early in 2010. They had a professional and personal relationship and she acknowledged that she is protective and could be difficult to work with and had an argument with him involving a horse trailer.

28. On October 29, 2010 she was called by Chance Stewart in the morning that the mare came out of the stall lame and she called Dr. John Atack to check out the mare since she was not available. When she was advised as to the nail in the hoof, she informed the Judges to scratch the horse as the mare was in to go that day. She was advised that the nail was in the middle of the frog near #s 18 and 19 on Exhibit 4. She did not see the nail at that time. It was later given to her by Mr. Stewart.

29. On October 24 she had purchased Trudy Long Legs at a sale and it was delivered to Liezert’s barn by mistake. She subsequently moved that horse to barn A and the next day to Chance Stewart in barn B. She had had an altercation with Liezert at Gary McDonald’s barn where he was calling her names and subsequently sending her numerous text messages indicating that he was going to claim the mare. The mare had been moved to the barn of Chance Stewart. She told the Judges that the mare was lame and there were suspicious circumstances as she had not known a nail to be in a place like that before.

30. On the 29^th^ she went to see Liezert in his barn and asked him “to say he did not do it”. He did not respond to this. In her view the nail in the frog could not have been there by accident as it was brand new, not bent and not a roofing nail. She then produced the nail that had been given to her by Chance Stewart after he and Dr. John Atack had removed it (Exhibit 5). She had kept this nail since that morning and it was now rusted.

31. Dr. Nathalie Cote, a veterinarian that later treated the mare, advised her that the nail had in her view been “manually placed”. The horse had been treated by her at the Milton Equine Hospital with the description of the treatment set out in Exhibit 6. The mare developed a circular infection in the navicular bone. They had concluded that the nail had penetrated the foot at an angle of 65 degree through the sole of the foot. The nail was found to be new. As a result of the infection the mare was subsequently put down on December 1, 2010.

32. Exhibit 7 was introduced as a letter from Stephane Pouliot to Belleville Equine Clinic advising that he had worked on the front shoeing of the mare on October 26, 2010 and that he had checked the shoeing behind and felt that they did not need to be touched – “so I left them alone. The mare was very good to shoe and the procedure was uneventful.”

33. Dr. LBA again explained that she had gone to see Liezert and wanted to know if he had done it and this time she referred to his answer as it was her fault and “go away”.

34. On cross-examination she acknowledged that Liezert was the 3^rd^ trainer for the mare and that she had raced well for him. She also stated that she and Liezert had a tumultuous owner/trainer relationship. She admitted that she had been told by Gary McDonald to go to another trainer although she pointed out that she still does vet work for McDonald. She and Liezert had arguments and she had taken the mare out of his barn to Chance Stewart and she had been told by the Judges to stay away from Liezert. After she scratched the horse she went to his barn and said “you did a good job on the horse”. She did not directly accuse him of placing the nail in the mare. She acknowledged that the mare could be difficult so a twitch was sometimes used when working on her feet and in such event no help would be needed for shoeing.

35. Liezert had said the mare “will not race without” me. This was on the morning she moved the horse out of Liezert’s barn with a further move the next day to Chance Stewart. She did say that there was possibly a use by her of “rough words” to Liezert in McDonald’s barn.

36. She said she did not edit the text messages taken by Charles Beirnes, had no complaint about the services of Liezert as a blacksmith and that there were approximately six blacksmiths at the track. She acknowledged when she confronted Liezert with “tell me you didn’t do it” he did not respond. He just said “go away, leave me alone”. She did agree that she had been fined $500 for going to Liezert’s barn when there was an Order that she should not be speaking to him.

37. On examination by the Panel, she described the mare as a bay, had no halter, there was no name on the stall and that Chance Stewart was the only trainer in that barn that she knew with 5 to 7 horses in his stable. LBA thought there were 10 to 15 horses in that barn. The Stewart barn was from two to five minutes from that of Liezert.

F. Dr. John Atack

38. He has been an equine veterinarian for 34 years now operating out of the Belleville Equine Clinic. He had met Liezert a few times. He attended at the Stewart barn on the morning of October 29 at the request of LBA. The mare was three legged lame and “almost broken legged lame”. It was not an abscess and she was sore in the frog area and he found a nail embedded in the cleft. He examined Exhibit 4 and identified the location at the lateral collateral grove. He explored that area and a nail was pulled out that was bent slightly. It was not a carpenter or roofing nail but a horse nail that was soft and would bend in 1 to 1¼”. It was hitting the navicular bone which is why he felt it was bent. The head of the nail had been covered in manure so it was stained.

39. It looked to him like the nail was driven in and did not come from a stall or stepping on it. He explained how the RCMP horses have large nails that can bend. In his view, you needed equipment and a hammer and experience to hold a horse for this to have occurred. The stall was clean with shavings and there was no debris there. His report at Exhibit 3, Tab 3 explained why he thought this was a new nail. The mare was euthanized with bacteria having entered the navicular bone causing a deterioration.

40. On cross-examination he explained the report he received in Exhibit 7 and that in his view the nail had been in the hoof for some hours because of its colour and likely 4 – 12 hours but he could not tell the acidity effect.

G. Dr. David Bruce Duncan

41. He has been the ORC supervising veterinarian since 2003 and practiced veterinarian medicine since 1963.

42. He did not know Liezert and did the report found at Exhibit 3, Tab 4. He explained that nail wounds in equine feet are not uncommon but usually from a blacksmith placing a nail in a sensitive area. A horse could step on a stray nail. Nails are not frequently found loose in stalls so he felt it “extremely unlikely for a horse to allow this to occur during normal movement around the stall”.

43. He was not aware of the number of blacksmiths at RCR or the number of trainers that could do shoeing.

44. He did not receive a notice reporting the horse having died for Death Registry recording and there are 60 days to do such reporting. The mare had died on December 1, 2010.

45. He acknowledged that an autopsy is not done with a straight forward death. He did point out that from such an injury the lameness would show right away.

H. Gregory Liezert

46. He lives in Cardinal, Ontario and is licensed as a driver, trainer and owner and is about 50 minutes from the track. He did acknowledge that he did have a conviction for use of a drug and had been suspended and fined $500. The offences are shown in the due diligence report with the three listed that did not involve driving offences being shown in Exhibit 1, Tab 1, page 2. He generally owned from three to five horses, some of which were partly owned, with some being owned outright. He also usually shod his horses. He indicated a lot of trainers did shoeing and that there were six full-time blacksmiths at RCR.

47. He reviewed his record at the track and the highs and lows in his relationship with LBA for whom he trained from June 2010. He had trained and driven the mare BRITTLE TRUTH. He was acquainted with the former trainers of that mare and LBA had asked that the mare be removed at least twice and that he was on probation with her as she would “throw fits”. He claims he ordered LBA to take the mare out of his barn and that a new horse, Trudy Long Legs, purchased by LBA had been mistakenly put in his barn the day before and then moved out by LBA. He had an interest in claiming the mare and when the mare was removed he said he would see her again.

48. There was a review of the text messages and then he stated that he had been in the third or fourth race on October 28 with Ideal Jim on behalf of Josh and Jack Bourgon. After that horse had been put in the stall he left which was then after 10 or 10:15 p.m. Josh and Jack were behind him with a truck and trailer and he went home to Cardinal, to the Boar’s Nest and arrived home at 4:00 a.m. as he lived only 100 yards from that bar. He normally shoots pool on Thursday nights and is familiar with the owner of that bar. He indicated he had informed Mr. Beirnes of the foregoing and that the next day he did not have to go to the track until 10 to 10:30 a.m. as he only had one horse to jog.

49. He was in the barn when Audrey Dumont came in calling him names and a “piece of shit”. He told her to leave. LBA came in and tapped him and said “good job”. He said he went to the race office and spoke to the secretary and asked him as to when to claim and was told it should be one hour before post time. Judge Campbell wanted to speak to him and asked where he was the night before and he was told not to talk to LBA. He was advised that the horse had been scratched. He found out that afternoon from Luc Loyer that the mare had been scratched with a nail in her foot. He was later asked by Beirnes if he had done this and he was shown the nail that was made as Exhibit 5 and he did not recognize it other than it was a horse shoe nail.

50. He explained that all horse shoe nails have unique markings with different brands and that he uses a Capewell. He introduced a sample which became Exhibit 8. He was able to describe the mare as he had driven her 13 times and that she was a dark bay and when she jogged she went with her tail up. The mare had made $19,000 from his drives and he had an incentive to drive and win. He stated that LBA was concerned that the mare would be claimed.

51. On cross-examination he disagreed with the senior Judge’s report (Exhibit 1, Tab 7, page 49) that he had been summoned to their office. There was a further reference to this at Exhibit 1, Tab 8, page 52 where he stated “I said she said” in an attempt to vindicate his conduct and avoiding the specific issue of his aggressive and threatening behaviour. That report said he denied having been in or around the Chance Stewart stable the previous evening and early morning hours.

52. He referred to the Audrey Dumont statement to him and also the LBA comment to him. He described his efforts at the bank for claiming funds and that he and LBA chirped at each other as she was never satisfied that he was helping her out and not harassing her.

53. He did not deny that Chance had closed the door on him or he made the remarks referred to above. He knew she was fond of the mare and would be upset if claimed or threatened to be claimed. He acknowledged that he had argued with her and that he had threatened to claim the mare, he had a temper but was straight forward in his verbal behaviour. He acknowledged the assault convictions referred to in Exhibit 1, Tab 1 on page 2 and the confinement charge. He denied he had put a nail into the mare as he wanted to claim her.

54. He admitted he was a blacksmith, did have access but stated that all trainers and staff can enter the back stretch and argued that all the witnesses should have been called by the Judges without mentioning any names. He agreed that the penalty for someone putting in a nail like what happened should be suspended and he mentioned that to Mr. Beirnes. He indicated the feed company he purchased the nails from would be aware of the type he used. His response to LBA was only to stay away from him and that after the races he went back to his barn and left with Josh and Jack. He had no evidence as to where he was after the races except his statement that he went to Cardinal and the bar. He acknowledged that there was no-one at the RCR gate after 10:30 p.m. and could not explain as to why he stopped texting LBA after 12:47 a.m. He said he had the cash to do a claim but was told by John Campbell not to bother to make a claim.

55. When LBA had confronted him after the injury he told her to leave and she followed him into the stall, he asked her to leave and then went to the office to complain. On a further review of the offence summary on page 5 of Exhibit 1, Tab 1, he acknowledged the convictions there and that there were two convictions that had not been referred to in the exhibit by the ORC involving mischief under $5,000 in 2007 and criminal harassment in 2010 where he received a suspended sentence and 18-month probation for 372 harassing phone calls.

56. When questioned about the funds to make a claim, he was evasive and did say that he had $3,000 and could have had funds from his mother but was unable to indicate he had sufficient funds to make the claim he had threatened to do. He did not produce any evidentiary material to verify his statement.

Arguments

57. The position of the ORC represented by Angela Holland was that Liezert was responsible for driving the nail into the hoof of the mare BRITTLE TRUTH and her ultimate death from the resulting infection. The offence is under Rule 6.22 as “an act of cruelty or neglect to a horse … .” There was no explanation as to how the nail arrived there and no evidence by Liezert as to his whereabouts at the relevant times. His recollection conflicted with the notes of the Judges at RCR and he had produced no evidence at his hearing before the Judges on December 20, 2010.

58. Miss Holland acknowledged that this was a circumstantial case. This was in the Panel’s view only because no-one saw the malicious incident (in the words of Dr. Duncan) Exhibit 3, Tab 4. She argued the test to be applied as to the standard of reasonableness was set out in the ORC factum marked Exhibit 2, Tab 1 on page 4. This was the Dunsmuir v. New Brunswick 2008 SCC 9, [2008] S.C.J. No. 9 case where the statement is:

“Reasonableness is a differentiated standard animated by the principle that underlies the development of two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within a range of acceptable solutions.”

59. The Panel agrees with and follows that statement as the applicable law.

60. When it came to the question of the penalty she had no similar cases to rely on and argued that the decision of the Judges should be upheld.

61. Mr. White acknowledged that while this was an “horrendous act” done by someone, it required a balance of probabilities for this to be blamed on Mr. Liezert. He felt there was no motive. There were difficulties with LBA including a dispute over the new horse that came to his barn on October 25, 2010 which LBA had ordered removed from Liezert’s stable. The Panel heard the evidence that both Liezert and LBA could be argumentative. Liezert or his clients had planned to claim the mare so there was no motive for him to have injured the horse he was going to claim.

62. When it came to the question of opportunity, Inspector Beirnes had the opportunity to examine witnesses to check on the alibi as to the whereabouts of Liezert on the evening of October 29, 2010 but he did not do so.

63. On the question of expertise it was pointed out that there were a number of persons at the track that could shoe a horse. Mr. Liezert testified that only that day did he see the nail that caused the injury. He said he used a different brand and no expertise was needed to shoe the mare and that it would be more difficult to do her back legs. The exact time of the nail entering her hoof was not established and he denied being the person that had put the nail in the hoof. White argued that there was no reason for Liezert to injure the horse he wanted to claim.

64. Liezert claimed he was at the track, went to a bar and arrived the next morning where he was confronted by both Ms. Dumont and LBA but neither of them specifically mentioned the injury to the mare.

65. Mr. White’s position was that there was no motive, no exclusive opportunity and no need for expertise. He said Mr. Liezert had no onus to bring alibi witnesses when Mr. Beirnes had the information. He asked the Panel to consider the evidence relating to LBA and her relations with her former trainers where in one case she had been ordered to take her horses out of the trainer’s barn.

Decision

66. It was during the hearing that it became obvious that some person or persons were responsible for the injury to the mare and inflicting pain on her through the placing of a horse shoe nail near the frog and making her lame with her eventual death from the infection because of the location of the nail in her foot.

67. The Panel has the obligation to decide this appeal on the basis that this is a civil case and the standard of proof is based on a “balance of probabilities” (F.H. v. McDougall 2008 SCC 53, [2008] 3 S.C.R. 41). This case is noted in the reasons in the Jay Polfroni case referred to in the Factum (Exhibit 2, Tab 1, page 2). The decision from the Panel is not one that requires proof beyond a reasonable doubt which is the test in criminal cases. The conclusion reached by the Panel is that the reasonable standard applied to the known facts is that the responsibility for the offence weighs heavily on the conduct of Mr. Liezert.

68. The Panel carefully listened to the evidence and finds that on the balance of probabilities Mr. Liezert was the culprit responsible for the injury to the mare. He clearly had the means as he was an accomplished blacksmith and he had the tools to shoe the mare.

69. Mr. Liezert had the motive because of the breakdown in his personal and business relationships with LBA and because he had lost the mare as her trainer. The loss of the mare was a financial loss and while he said he was going to claim the mare he did not demonstrate that he had the financial wherewithal personally to accomplish that. While he indicated others might have helped him put in a claim for the mare there was no evidence to support that position. There were times during his testimony that the Panel had concerns as to his veracity and he was unclear as to the finances for a possible claim of the mare. He had threatened LBA verbally in the presence of others and had told Chance Stewart that closing the door to the barn by Mr. Stewart would not keep him out.

70. He had sent LBA numerous text messages on October 26 through to early morning of October 29 threatening to claim the mare and effectively harassing LBA. The Incident Report in Exhibit 3, Tab 8 refers to the harassment of LBA by him. The Panel noted that he had been found guilty of adult criminal harassment on September 7, 2010 where he was put on 18 months’ probation involving 372 harassing phone calls (see Exhibit 1, Tab 1, page 5). He had attempted to vindicate his conduct and both he and LBA were ordered to stay away from each other. Ms. Dumont and LBA indirectly accused him of injuring the mare and he did not deny his involvement to them and effectively ignored their comments and questions.

71. He had the opportunity to attend at the Chance Stewart stable and to put the nail into the hoof of the mare. There was a long period of time between the end of the races on October 28, 2010 and the next morning before anyone would be in the barns. There was no name at the mare’s stall, and she did not have a halter with her name on it and his barn was very close by. Liezert had been at the Chance Stewart barn on October 28 and would likely have known the location of the mare in that stable. As the very recent trainer of the mare he would know her by sight so that the identification by him was not difficult. Mr. Liezert introduced no evidence from any independent person as to his whereabouts from the end of the racing day on October 28 through the morning of October 29 when he arrived at his barn. This is something that he could have done but chose not to do so.

72. In the opinion of the Panel Mr. Liezert had the means, the motive and the opportunity to cause the injury to the mare. His appeal is denied and the suspension pursuant to the Ruling of the Judges under SB 41865 should stand.

DATED this 19^th^ day of April, 2011.

John W. Macdonald

Commissioner

Brenda Walker

Commissioner

Dan Nixon

Commissioner