RULING NUMBER COM TB 016/2012
COMMISSION HEARING TORONTO, ONTARIO – OCTOBER 24, 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 OF MASTERFEEDS
AND IN THE MATTER OF THOROUGHBRED LICENSEE ROBERT EARL BARNETT
On November 19, 2010, the horse, “La Gran Ruby (tattoo #G28109)”, trained by Robert Earl Barnett (“BARNETT”), licence #121763, participated in the third race at Woodbine and finished second.
On December 1, 2010, the Stewards received notification of a positive analysis for La Gran Ruby for the Class III drug, Ractopamine.
On September 24, 2011, the Stewards issued Ruling Number TB 6926/11, wherein BARNETT was rendered blameless for the positive test of La Gran Ruby on November 19, 2010 but, given the absolute liability nature of the Trainer Responsibility Rule, the horse was disqualified, the purse redistributed, and the positive test remained on BARNETT’S record.
On November 7, 2011, Masterfeeds Inc. (“MASTERFEEDS”) appealed Ruling Number TB 6926/11.
On February 7, 2012, a Notice of Hearing was issued to notify the parties that the appeal would be heard on April 17, 2012.
On March 30, 2012, the parties sought a consent adjournment of the April 17, 2012 Hearing date on the basis of the need to schedule a two-day Hearing.
On April 2, 2012, a Notice of Hearing was issued to notify the parties that the appeal would be heard on June 13 and 14, 2012.
On June 8, 2012, the Hearing was adjourned on consent to October 24 and 25, 2012.
On October 24, 2012, a Panel of the Ontario Racing Commission consisting of Vice Chair Hon. James M. Donnelly, and Commissioners John Macdonald and Brenda Walker was convened to hear this matter.
John Downing appeared as counsel on behalf of MASTERFEEDS. Dan McMahon attended as counsel on behalf of BARNETT. Jennifer Friedman appeared as counsel for the Administration of the ORC.
At the outset of the Hearing, counsel presented to the Panel an Agreed Statement of Facts and Joint Submission on Disposition pertaining to MASTERFEEDS and the Administration of the ORC.
The Panel approved the Agreed Statement of Facts and Joint Submission on Disposition as between MASTERFEEDS and the Administration of the ORC as follows:
The appeal is allowed and Ruling Number TB 6926/11 as it pertains to MASTERFEEDS is set aside and a declaration issued that MASTERFEEDS and Nobelton’s products were not contaminated with Ractopamine and were not the source of La Gran Ruby’s positive urine test for Ractopamine.
Thereafter, Vice Chair Hon. James M. Donnelly held a Pre-Hearing Conference with BARNETT and the Administration of the ORC.
Following the Pre-Hearing Conference, counsel on behalf of BARNETT and counsel on behalf of the Administration of the ORC presented a Joint Submission on Disposition pertaining to BARNETT and the Administration of the ORC.
The Panel approved the Joint Submission on Disposition as between BARNETT and the Administration of the ORC and ordered the following penalty:
i) $5,000 fine, with $3,500 stayed, payable within 15 days;
ii) 1 year probation with the following standard terms pursuant to Policy Directive No. 3-2008:
The Licensee shall keep the peace and be of good behaviour;
The Licensee shall allow Commission investigators access to his stabling area at any time to conduct unannounced random searches for illegal or non-therapeutic medications or drugs;
The Licensee shall allow Commission investigators to seize any illegal or non-therapeutic medications or drugs found at his stabling area;
The Licensee shall be subject to the Commission’s Out of Competition Program.
The Licensee may be subject to a Notice of Proposed Order in addition to any penalty imposed by the ORC Judges or Stewards for any breach of the terms of his licence.
iii) If BARNETT has a further positive during the probation period, the amount of the stay ($3,500) shall be added to any other subsequent Ruling that might be issued.
The transcript of the Panel’s Oral Decision and the Agreed Statement of Facts and Joint Submission on Disposition are attached to this Ruling.
DATED at Toronto this 14^th^ day of November 2012.
BY ORDER OF THE COMMISSION ____________________________
Steven Lehman
Executive Director
ONTARIO RACING COMMISSION
THOROUGHBRED HEARING
IN THE MATTER OF AN APPEAL AND REQUEST FOR HEARING OF MASTERFEEDS/ROBERT BARNETT
Held Before:
James Donnelly, Vice Chairman
John Macdonald, Commissioner
Brenda Walker, Commissioner
These are an excerpt of the proceedings in the above mentioned matter held before The Ontario Racing Commission, Re: MASTERFEEDS/ROBERT BARNETT, taken before Toronto Court Reporters, Suite 1410, 65 Queen Street West, Toronto, Ontario, at 10 Carlson Court, Suite 400, Toronto, Ontario, on the 24th day of October, 2012.
Appearances:
Jennifer Friedman, counsel for the Ontario Racing Commission Administration
Dan McMahon, counsel for the licensees Barnett
John Downing, counsel for Masterfeeds
Hearing continued ...
MR. CHAIRMAN: The panel accepts the agreed statement of facts and the joint disposition worked out by counsel and an order will issue in accordance with that disposition. I'm reading from Exhibit number 10: "The appeal is allowed and ruling number TB6926/11 as it pertains to Masterfeeds is set aside and a declaration issued that Masterfeeds and Nobelton's products were not contaminated with Ractopamine and were not the source of LA GRAN RUBY's positive urine test for Ractopamine and I point out specifically that the appeal is allowed as it pertains to Masterfeeds and the allowance is restricted to that. Anything further counsel?
MS. FRIEDMAN: No, thank you.
MR. CHAIRMAN: Thank you. You may be excused, counsel. Thank you very much.
MR. DOWNING: Thank you.
MR. CHAIRMAN: We will give you a minute to vacate.
SHORT RECESS
Upon Resuming...
Hearing continued ...
MR. MACDONALD: Thank you. I understand the pre-trial conference was successful in resolving this matter.
MR. MCMAHON: Yes, it was. It was very straight forward.
MR. MACDONALD: I've very pleased with that and we will so order on the basis of the $5,000.00 fine, the $3,500.00 of it which is stayed, the one year probation period, probation is to start immediately under the standard terms and ORC policy 3/2008 plus the indication that if the licensee has a further positive during the probation period the amount of the stay, the $3,000.00, would be added to any other subsequent penalty that might be issued.
MS. WALKER: $3,500.00.
MR. MACDONALD: $3,500.00, sorry.
MS. FRIEDMAN: And if I could just add in a situation where there isn't a penalty if we could revise that wording to any subsequent ruling as opposed to any subsequent penalty?
MR. MACDONALD: That may be a distinction without a difference but I understand what you are saying. That's fine, any subsequent ruling.
MS. FRIEDMAN: Thank you.
MR. MCMAHON: I'd just like to note if Mr. Barnett will be able to pay that fine within fifteen days. He probably doesn't require fifteen days, it is just mechanically how things are brought about. It is his intention to attend to the amount immediately but he can't do it today but just so there is no misunderstanding with the Administration policy that he gets to do it in a timely fashion that would be acceptable with the caveat that it's with a cheque that clears and is cash is accepted.
MS. FRIEDMAN: The Administration is content with that. In fact, it would request that in the content of the ruling itself if we could indicate that it is to be payable within fifteen days.
MR. MACDONALD: Thank you, so ordered. This matter is now terminated. Thank you.
CERTIFIED CORRECT_________________________________
RAYMOND P. MACDONALD, B.A., CVR
Commissioner of Oaths