RULING NUMBER COM TB 019/2011
COMMISSION HEARING TORONTO, ONTARIO – NOVEMBER 1, 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
THOROUGHBRED LICENSEE DAN VELLA
On July 23, 2011, the horse, ‘Weekend Romance’, which, at all material times was trained by Catherine Day Phillips (“Phillips”), finished first in the sixth race at Woodbine Racetrack.
Following the completion of the race, individuals noticed ‘Weekend Romance’ exhibiting apparent signs of distress, including that she was not weight-bearing on her left hind leg. To alleviate distress, a veterinarian injected the horse with Bute, Atravet and Dimosabane.
Following the race, test inspectors attended at the Phillips barn to take post-race blood samples.
On August 26, 2011, the Stewards issued Ruling Number TB 7230/11, pursuant to Rules 16.02.02 and 27.06 of the Rules of Thoroughbred Racing, wherein they found that the horse ‘Weekend Romance’ was in distress, that the samples were negative, and that “no further action is required”.
On August 26, 2011, Dan Vella (“Vella”) submitted a Notice of Appeal.
On October 12, 2011, a Notice of Hearing was issued advising that a Hearing would be held on November 15, 2011 at 9:00 a.m.
On October 27, 2011, Dan McMahon (“McMahon”), counsel on behalf of Vella, indicated that Vella wished to withdraw his appeal.
On November 1, 2011, a Panel of the Ontario Racing Commission, consisting of Vice Chair James M. Donnelly and Commissioner Dan Nixon, was convened to hear the withdrawal of the Appeal.
McMahon attended with Vella. Harvey Swartz acted on behalf of Phillips. Jennifer Friedman appeared as counsel for the Administration.
Upon hearing the submissions of counsel, the Panel assessed costs against Vella in the amount of $1,000.00.
The transcript with the Panel’s Oral Decision is attached to this Ruling.
DATED at Toronto this 9th day of November 2011.
BY ORDER OF THE COMMISSION __________________________________
Rob McKinney
Acting Executive Director
ONTARIO RACING COMMISSION
THOROUGHBRED HEARING
IN THE MATTER OF THE APPEAL AND REQUEST FOR HEARING OF DAN VELLA
Held Before:
James Donnelly, Vice Chairman
Dan Nixon, Commissioner
These are an excerpt of the proceedings in the above mentioned matter held before The Ontario Racing Commission, Re: DAN VELLA, taken before Toronto Court Reporters, Suite 1410, 65 Queen Street West, Toronto, Ontario, at 10 Carlson Court, Suite 400, Toronto, Ontario, on the 1st day of November, 2011.
Appearances:
Jennifer Friedman, for the Ontario Racing Commission Administration
Dan McMahon, for licensee Vella
Harvey Swartz, for the licensee Day Phillips
Hearing continued
MR. NIXON: All rise.
MR. CHAIRMAN: Please be seated. This appeal by Dan Vella comes forward on November 1st, 2011 as a joint submission by Daniel McMahon, counsel for Vella, Jennifer Friedman, counsel for the Ontario Racing Commission and Harvey Swartz, counsel for Catherine Day Phillips. The joint submission is that the appeal should be withdrawn. The issue to be resolved relates to the costs to the Commission based on a finding, firstly, that the appeal was frivolous and secondly, that the matter has come forward in terms of preparation to the hearing stage. It would be Mr. Swartz' claim for costs against Vella akin to what in civil proceedings would be party and party costs.
The underlying incident relates to the injection of the horse WEEKEND ROMANCE after winning the 6th race at Woodbine July 23rd, 2011. Following the race at the tunnel and before arrival at the test barn the horse was seen to be non-weight bearing on the left hind leg. Dr. Jennifer Creer observed the horse in distress and asked the assistant trainer if she wanted Dr. Creer to treat the horse. The assistant trainer gave approval as her usual vet was not in attendance. Dr. Creer injected the horse with 20 cc's (4 grams) of butte, 2 mgs. of Dormosedan and also with Atravet. The horse was then loaded on the horse ambulance and received at the test barn. Particulars of the injections were provided to test barn personnel.
About thirty minutes after the incident Dr. Creer learned that the horse she had treated had won the 6th race. Following an investigation no fault was attributed to Dr. Creer, the matter being by misadventure. The stewards' ruling from which the appeal is taken is as follows: "On July 23rd, 2011, WEEKEND ROMANCE was in distress and suffering from heat stroke due to heavy exertion and a possible injury to the right hind leg following the race. A decision had to be made quickly and Veterinarian Jennifer Creer proceeded with what she determined as a necessary procedure to ensure the well being of the animal. Maxim Laboratories confirmed that all testing from the day of July 23, 2011, was found to be negative. In the absence of a positive finding the Stewards have determined that no further action is required."
Had there been a positive test the horse would have been taken down and Mr. Vella's horse would have been declared the winner for purse purposes. In the view of the panel, given the negative test and given the stewards' ruling, the appeal could not succeed and in that context it is a frivolous proceeding. It is not for this panel to speculate on the laboratory causes. It is not for this panel to speculate whether there are other remedies or where they may lie. The ORC ruling framework and the Racing Commission Act deal with the issue of frivolous appeals. The difficulty is that this is a self funding operation by racing and disbursements or expenses incurred here are borne by racing. The Commission has an obligation to protect that interest, that funding interest, and it is for that reason that if an appeal has no chance of success and it is still brought forward that costs can be recovered by the Commission. There is no provision in the rules or in the statute for recovery of party and party costs between the parties nor is there any inherent jurisdiction in this statutory body to grant such costs. My recollection, although, I didn't check that before this morning; my recollection is that it is possible to set out that framework but it hasn't been done and speaking only for myself I think it is wisely so. We have come close enough to the courts, and there may be some who agree with that observation, that in final result the maximum that would be considered would be $1,500.00. There was a puzzling aspect to the test results that earned some discount for Mr. Vella. In the end result the costs will be assessed against him in the amount of $1,000.00 payable to the Commission. There is no order as to costs with respect to Mr. Swartz. Thank you very much.
MR. MCMAHON: Thank you.
MR. SWARTZ: Thank you.
CERTIFIED CORRECT_________________________________
RAYMOND P. MACDONALD, B.A., CAR
Commissioner of Oaths