Jay Polifroni, 2012 CanLII 92241

Ontario Racing Commission

RULING NUMBER COM SB 018/2012

COMMISSION HEARING TORONTO, ONTARIO – APRIL 24 & 26, 2012

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 JAY POLIFRONI

On May 26, 2010, Jay Polifroni (“POLIFRONI”, licence #W06772) drove the horse, “Tricky Prospect” in the 11th race at Sudbury Downs.

On July 10, 2010, the Judges issued Standardbred Official Ruling SB 41967 wherein they suspended POLIFRONI for 45 days (July 15 – August 28, 2010 inclusive), fined him $1,000, and placed him on a 2-year probation (August 29, 2010 – August 29, 2012) for violating Rules 6.20(b), 6.20(c), 22.23.03(e), 22.23.05, and 26.02.01 of the Rules of Standardbred Racing (“SB Rules”). The Ruling also contained the following conditions:

i) All trainer transfers from Jay Polifroni must be approved by Sudbury Judges;

ii) The Licensee agrees and consents that ORC Investigators shall be permitted to access his stable for the purpose of observing the physical condition of his horses and for search & seizure;

iii) Keep the peace and be of good behaviour.

POLIFRONI filed a Notice of Appeal.

On July 15, 2010, the Executive Director of the ORC issued Ruling Number SB 131/2010 wherein POLIFRONI’s penalty was stayed pending the disposition of his appeal.

On August 19, 2010, a Panel of the ORC was convened for the purpose of hearing POLIFRONI’s appeal. The Panel denied POLIFRONI’s appeal.

On October 13, 2010, counsel on behalf of POLIFRONI, made application for judicial review.

On October 19, 2011, the Divisional Court considered POLIFRONI’s judicial review application.

On December 7, 2011, the Divisional Court allowed the application, overturned the ORC Panel’s decision, and remitted the matter to be heard by a newly constituted Panel.

On February 29, 2012, a Notice of Hearing was issued to notify the parties that the matter would be heard on April 24, 2012.

On April 24 and 26, 2012, a Panel of the ORC comprised of Vice-Chair Hon. James M. Donnelly, Commissioner John Macdonald, and Commissioner Dan Nixon was convened to hear this matter.

James Evans attended as counsel on behalf of POLIFRONI. Jennifer Friedman appeared as counsel for the Administration of the ORC.

Upon hearing the testimony of Philippe Belanger, Pascal Berube, Maxim Gaudreault, Larry Hughes, Dr. Bruce Duncan, and POLIFRONI, reviewing the exhibits filed, including transcripts of Isabelle Darveau, Dion MacLean and Jim Stewart, and considering the written submissions of counsel, the Panel denied the appeal and increased the penalty as follows:

a) Full suspension – 90 days;

b) No stay;

c) Fine $1,000 payable within 60 days;

d) 2 years probation. The terms will be as ordered by the Judges:

i. ORC Investigators shall be permitted to access Polifroni’s stable for the purpose of observing the physical condition of his horses and for search & seizure;

ii. Keep the peace and be of good behaviour.

e) Enrolment in an anger management program approved by the Judges at Sudbury Downs.

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

DATED at Toronto this 1st day of June 2012.

BY ORDER OF THE COMMISSION

John L. Blakney

Executive Director

REASONS FOR DECISION

The Appellant

1Jay Polifroni, age 34, a standardbred licensee since age 18.

The Ruling

2(SB 131/2010, July 15) by the Sudbury Judges for violation of Rules:

6.20(b) misconduct prejudicial

6.20(c) act injurious

22.23(e) cuts, welts by whip

26.02.01 trainer responsibility

22.23.05 penalty provision

The Penalty imposed by the Judges

345-day suspension; $1,000 fine; probation – two years with terms.

The Incident

4Injury to the horse, Tricky Prospect.

The Dispute

5The Administration attributes the injury to inappropriate whipping by Polifroni following the 4th race at Sudbury Downs on May 26, 2010. Polifroni denies that allegation.

Trial de Novo

6That this Appeal proceeds by Trial de Novo has been authoritatively affirmed in a series of cases in the Divisional Court; most recently, the Judicial Review of the first hearing of this matter by the Commission (ORC v Polifroni 2011 ONSC 6602, 2011 ON SC 6602). As that Latin maxim indicates a new trial is held. There is no appellate review of the proceedings before the Judges. The issue is determined solely upon the evidence before this Panel. As has been decided by the Ontario Court of Appeal, the Judges are competent witnesses upon the Trial de Novo. However, that testimony should be confined to relevant issues on the Trial de Novo. The Judges should not engage in a defence of their decision. Their evidence is relevant to narrative but should not extend to the basis of their views on credibility or findings of fact.

Burden and standard of proof

7The burden of proof is on the Administration. The standard of proof is on the balance of probability with the evidentiary burden of cogent evidence, clear and convincing as identified in ORC v Wallis and Piroski (SB 036/2011).

Admissibility of evidence

8As an Administrative Tribunal operating under the Statutory Power Procedures Act, the Panel is not bound by the strict rules of evidence applicable in criminal trials (S15 (1) SPPA). However, the rationale underlying the rules of evidence is consistent with the Panel’s obligation to act responsibly in conducting a fair hearing with a just result. Accordingly, those rules are instructive.

9Panels are aware of the limitations of hearsay evidence with no cross-examination and no opportunity to observe demeanour. Because of its “second hand” nature, such evidence must be scrutinized with care in light of the entire evidence. Consideration should be given to the trial admissibility issues of “necessity” and “reliability” as they bear on assessment of the probative force of the hearsay.

A witness disregarding a summons to attend

10This should be investigated by the Administration. In mitigation may be distance, circumstances, and either one or two prior attendances to give evidence (before the Judges or the first ORC Panel).

Agreement as to evidence

11One of the witnesses was in Ottawa, another in northern Quebec. For practical reasons, the parties to this proceeding agreed to have transcripts filed and to telephone evidence.

The evidence

12There is no direct evidence either by eyewitness or by admission of Polifroni inflicting the injury by whipping. The case is circumstantial.

Undisputed background

• Polifroni drove Tricky Prospect in the 4th race at Sudbury Downs on May 26, 2010. Review of the race video tape discloses no aggressive or undue use of the whip.
• The horse raced below Polifroni’s performance expectation.
• As he left the track after the race, Polifroni was seen to kick the horse while seated on his whip on the race bike. The significance, the whip was available to assist in getting the horse’s attention. The kicking was unnecessary.
• Polifroni acknowledged that he was a “little mad” at and was swearing at the horse and further admitted that he had on-going anger management problems.
• Polifroni took the horse to the unlighted back or warm-up track, thence to his stable where the horse was placed in cross ties.
• Polifroni had claimed the horse for $6,500 and raced it about four times. Following this race, he made it known in the paddock that the horse was for sale. He sold the horse that evening for $3,000.
• While the horse was in the cross ties, Pascal Berube examined the horse on behalf of a prospective purchaser.

The critical testimony

13Berube, an experienced and licensed horseman, observed 8 to 10 finger-size welts, 6” to 7” long on the horse’s hip, which in his opinion were caused by a whip. That evidence is critical to the case against Polifroni and must be assessed for credibility and reliability in the context of the entire evidence.

14Berube had seen the horse race at Ottawa, liked the horse and knew that because of its performance that evening, it was for sale for $3,000. He hoped to buy it for one of his owners.

15Berube took the horse from Polifroni’s stable that evening and when his owner declined, he sold it to Isabelle Darveau.

16Berube’s evidence of the existence of injury to the horse while in the cross-ties is directly challenged by Polifroni’s denial of whipping or injuring the horse.

17Berube presented as an impartial, honest and reliable witness. He had no connection for or against Polifroni. His skill and experience as a trainer render it unlikely that he would be mistaken about an injury to the extent described. He had full opportunity to examine the horse. He did so to the extent that he deemed expedient. He had motivation to check carefully because he was acting for his client, a prospective purchaser. That he did not question Polifroni about the welts does not call his observation into question. He knew the background of dissatisfaction and was confining himself to his own business.

18Berube’s evidence is supported by the evidence of similar welts described by witnesses Belanger, Darveau and Gaudreault.

19The hypothesis that the welts were inflicted after Tricky Prospect was removed from Polifroni’s barn finds absolutely no support in the evidence.

20The pattern, location and extent of the injury eliminate the question of equipment movement incidental to racing as the proximate cause. The evidence from witnesses experienced in the trade that the injury was caused by whipping is persuasive. That pain was associated with such violent and repeated action is a reasonable inference. The kicking of a horse was referred to by one witness as “disgraceful”. That characterization drew no dissent from the Panel. If that characterization is correct, whipping to the extent described is disgraceful and beyond.

21Dion McLean, a horseman in the same barn as Polifroni gave evidence that he did not see or notice welts although he was in close proximity. He did not deny their existence. He stated, “I never checked the horse.” The Dion McLean evidence is neutral. He observed no welts as the horse stood in the cross ties. He made no examination. His evidence does not contradict Berube who testified as to seeing the welts.

22That the welts were not seen by ORC Administration personnel is of no consequence. The matter was unreported for 17 days. An absence of whistle-blower action in the horse racing industry is not unusual (Panel’s observation).

23The evidence that the welts were severe and prominent was corroborated as follows:

• Phil Belanger saw Polifroni drive the horse off the main track after the race and from a distance of about ten feet observed Polifroni kick the horse in the rump while sitting on the whip on the seat of the race bike. Polifroni appeared to be angry and was swearing at the horse.
• Belanger described seeing similar welts the following morning. At this Hearing, contrary to his earlier evidence, he also described seeing them on the evening following the race. That inconsistency is of minimal significance relating to events of two years ago. The vital aspect is his observation of welts similar to those described by Berube whether it was made shortly after the race or twelve hours later. Belanger may be mistaken as to timing. Belanger corroborates the existence of the welts in the same 12-hour time frame but renders very little support for the timing of their infliction.
• Isabelle Darveau saw the horse a day and a half after the race. She described similar welts, basketball in size. The ORC Investigator’s notes indicate a profusion of basketball dimensions which are difficult to understand. A transcript of her evidence allays this potential problem. She was referring to the area not a third dimension of depth.
• Maxim Gaudreault testified by telephone from a construction site said to be in northern Quebec. He was stabled across from Berube. He described seeing on the day following the race, about ten 5” – 6” finger-size whipping welts on the horse’s rump.

The possibility of third party intervention

24The horse went from Polifroni’s stable where it was unwelcome to Berube’s as a new acquisition being offered for sale. It would be unlikely that Berube or his agents would harm a horse that he was attempting to sell to one of his horse owners. There was neither evidence nor suggestion of some other person abusing the horse or having any such motivation.

Mistake

25The number and severity of the welts described by the Administration witnesses rule out any issue of innocent mistake. The consistency of their testimony rules out any issue of over statement or exaggeration.

Delay in reporting

26The Judges first heard of the issue on June 12. Delay is understandable in the context of persons who are vulnerable with unattended stables of horses. Thereby there may be a disinclination to be a whistleblower. No one was looking for a confrontation with Polifroni. If his racing violation record accurately reflects his behaviour, a reticence to become involved would seem to be an appropriate reaction.

Polifroni’s evidence

27Polifroni stated that he scarcely used the whip during the race. He described cooling out the horse after the race on the main track and then on the unlighted back track. He admitted being angry with the horse. He claimed the kick was a means of steering the horse. He made it known in the paddock that the horse was for sale. He denied causing the welts.

Polifroni’s credibility

28Polifroni testified that in his twenties, he had difficulty with anger management but not so thereafter. This afforded opportunity for Commission counsel to cross-examine on his record for racing violations in his thirties which related to personal misconduct. Counsel dealt with the fact of each violation not the substance of the underlying incident. This was permitted firstly because Polifroni had put his character in that timeframe in issue, and secondly, as cross-examination on his record in order to test credibility.

29Commission counsel proceeded to show that Polifroni’s claimed renaissance was unjustified. By his false claim of rehabilitation from the wayward conduct of his twenties, Polifroni was exposed in a deliberate attempt to mislead the Panel in regard to his conduct bearing on the central issue in the Hearing. His credibility was further eroded by reticent and progressive admissions firstly of kicking the horse and secondly, that he was mad at or upset with the horse following the race. Apart from that internal inconsistency, the Polifroni evidence conflicted with the evidence of the witnesses who observed welts.

30The Administration evidence of welts was uniformly reliable. The witnesses displayed no partiality and testified matter of factly. None seemed overjoyed to be again testifying about events of two years ago.

31The evidence of the witness Berube is accepted as credible, independent and reliable. It is amply supported by other independent sources. In the context of the entire evidence, the Polifroni denial is rejected.

The circumstantial evidence

• The horse raced below Polifroni’s expectation.
• Polifroni kicked and swore at the horse immediately after the race.
• He admitted being angry with the horse.
• He sold the horse for $3,000 – having recently claimed it for $6,500.
• He had the horse and a whip on the unlighted back track. There was evidence that for a time no one else was on that track.
• The observation of welts while in cross ties after the race.
• The number, similarity and independence of the observation of welts.
• The absence of evidence of motivation by some third party to abuse the horse.
• No one else had access to the horse until Polifroni returned to his stable and put it in the cross ties.

Disposition

32Accordingly, I find:

• The injury as described did exist.
• That injury was caused by repeated blows with a whip or similar instrument.
• Polifroni inflicted those blows.
• That conduct was prejudicial to the best interests of racing Rule 6.20(b).

33The Administration has discharged its burden of proof.

34Having found Polifroni in breach as specified herein, it is unnecessary to consider the submission of his responsibility as trainer. Purely as an aside, there appears to be absolutely no merit in his counsel’s contention that the trainer responsibility rule is confined to such as drug violations.

35In closing submissions, Commission counsel “asks the Panel to consider holding Polifroni’s conduct to be contrary to SB Rule 6.22 – i.e. committing acts of cruelty to a horse.” The Judges had considered and declined this course of action.

36Compliance with counsel’s request would constitute grievous error founded on the following:

• The Divisional Court directed that this matter be referred to a panel for re-hearing by Trial de Novo. That is the authority for this re-hearing. The direction is to deal with the original charges. There is no authority conferred on the panel to hear an entirely different charge.
• Considerations underlying section 11(a) of the Charter: “To be informed without unreasonable delay of the specific offence.”
• To be charged with one offence and without notice to be convicted of another offence is to deny the Appellant the opportunity to make full answer and defence to the charge upon which he/she has been convicted.

Penalty

37By Order on July 15, 2010, the penalty imposed by the Judges was stayed pending final disposition.

38Pursuant to direction from Panels in other Hearings, Polifroni’s record for violations of the Rules of Racing was not included in the joint Book of Documents. By direction of this Panel, the record and penalty submissions by both parties were filed in a sealed envelope only to be opened if the Panel made a finding warranting consideration of a penalty.

39One of the primary principles of racing, often and publicly stated by the Commission is the importance of the health and welfare of the horses. A Notice to the Industry of April 19, 2006, deals with the enforcement goals of the industry:

“to maintain health and well-being of horse, the integrity of the industry and public confidence.” (see also Policy Directive 5-2009)

40As stated in Schickedanz 2010 ORCD N0 74:

“The broad public interest in racing includes all parties directly or indirectly involved in racing as well as the health and welfare of racing stock.”

41By necessary inference, injury to the extent described bespeaks a severe and multiple striking of the horse with a whip or similar instrument. It must be beyond controversy that such misconduct by a trainer charged with responsibility for that horse and licensed to care for other horses is prejudicial to the best interests of racing, R 6.20(b). There is no place in the industry for this conduct.

42The Penalty Guidelines are no more than guidelines. The quantum for repeated violations is not necessarily a progression. The penalty must fit the breach. Penalty considerations were discussed in ORC & Scott and need not be repeated.

43General and specific deterrence are primary in this case. Denunciation must be emphatic and unmistakable. Rehabilitation is secondary. However, it will be encouraged through probation.

44Polifroni, has generated over 50 rule violations including:

• Five incidents of threatening bodily harm or offensive language – R 6.17;
• Three rulings for misconduct – R6.20 (injurious to racing);
• Two positive tests;
• Nine whipping violations.

45The Judges imposed a $1,000 fine, a 45-day full suspension, two years probation and anger management counselling. Pursuant to Rule 24.03, the first Panel increased the fine to $1,500 and the suspension to 90 days with 60 days stayed. As well, it ordered enrolment in an anger management program approved by the Judges at Sudbury Downs.

46The Appellant is on notice of the peril of increased penalty as a result of this provision in the Notice of Hearing: “Take Notice that the ORC may uphold the ruling or it may increase same or it may allow the appeal.”

47The penalty imposed is:

• Full suspension - 90 days;
• No stay;
• Fine $1,000 payable within 60 days;
• 2 years probation. The terms will be as ordered by the Judges: i. ORC Investigators shall be permitted access to Polifroni’s stable for the purpose of observing the physical condition of his horses and for search and seizure; ii. Keep the peace and be of good behaviour.
• Enrolment in an anger management program approved by the Judges at Sudbury Downs.

The passage of time

48Final disposition of this matter has awaited the Judges’ Hearing, the Hearing before the initial ORC Panel, the Judicial Review proceeding and this Hearing.