RULING NUMBER COM SB 037/2013
COMMISSION HEARING TORONTO, ONTARIO – SEPTEMBER 23, 2013
NOTICE OF DECISION
IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF THE APPEAL OF RICHARD MOREAU
Richard Moreau appealed against Ruling Number SB 90/2013.
ORC Panel Member: Chair Rod Seiling
Counsel for Appellant: Robert Burgess
Counsel for the Administration: Jennifer Friedman
The Panel denied the appeal.
The Panel’s Reasons for Decision is attached to this Notice.
DATED at Toronto this 25th day of September 2013.
_____________________________
Steven Lehman
Executive Director
REASONS FOR DECISION
Overview
Licensee Richard Moreau appealed the Deputy Director's decision SB 90/2013 dated September 20, 2013 wherein the horse, Northern Bullet, was suspended for 90 days (September 19, 2013 to December 17, 2013) in accordance with SB Rules 11.10.01 and 20.01.01 (I) for a positive test result for the Class I drug, Aminorex via a decision of the Judges (SB 44780 dated September 19, 2013).
An oral decision was rendered denying the appeal with written reasons to follow.
These are those reasons.
Background
A certificate of positive analysis for the Class I drug, Aminorex, was issued by Maxxam (Ex. 1) for the horse, Northern Bullet, from race 2 held at Rideau Carlton on September 5, 2013.
Following a hearing before the Judges, Ruling No. SB 44780 was issued suspending the horse for 90 days in accordance with SB Rules 11.10.01 (I) and 20.01.01 (I) (1).
The Deputy Director denied a request for a stay on September 20, 2013 (SB Ruling No. 90/2013).
An emergency hearing was convened on September 23, 2013. Jennifer Friedman represented the Ontario Racing Commission (ORC) as legal counsel. Robert Burgess represented the appellant.
Ms. Friedman submitted with no disagreement from Mr. Burgess, that to obtain a stay the onus was on the appellant to prove that exceptional circumstances existed. Upon implementation of the “no stay” policy for Class I, II, III drug or TCO2 rule violations, the ORC issued Policy Directive No. 7/2007. That Directive is clear, to issue a stay, the Director must be satisfied that it would be “in the best interests of racing” or in other words, there must be exceptional circumstances present.
The ORC's position was that there were no exceptional circumstances present and the appeal should be denied.
The appellant countered that those circumstances did exist and to deny the appeal would equate to a pre-execution. The exceptional circumstance from the appellant's perspective existed because the drug in question, Aminorex, has not had a successful prosecution. The reference was made in relation to approximately 11 positive tests for Aminorex. All 11 appeals succeeded as CPMA research proved the administration of the drug wormer, Lavamisole, metabolized within the horse to produce Aminorex. Four other recent positive tests for Aminorex have surfaced recently. There has been no disposition for any of them as of this date.
The financial penalty to the owner of Northern Bullet is substantial. The horse is eligible to race for a purse of $200,000 in the Ontario Sires Stakes Gold Finals to be raced on September 28, 2013.
Notwithstanding the right of the licensee to request the emergency hearing as part of the Commission's due process, an integral part of that process is an investigation. Given the short time frame, it is unreasonable to expect an investigator to have completed the required investigation into the matter at hand.
Issue
- Has the appellant provided cogent, clear and compelling evidence to support the request for a stay?
Reasons for Decision
The onus was on the appellant to provide cogent, clear, and compelling evidence. That requirement was not forthcoming.
There are three tests required to grant a stay. Appellants, before appearing before a Panel seeking a stay, should be aware of them and be prepared to address each. Failure to pay heed will almost automatically result in a denial and possibly an additional sanction.
That test is detailed in the Cupza decision (Ex. 9 at para 17). The three-part test is as follows: “(a) is there a serious mitigating factor? (b) where does the balance of convenience lie? and (c) where is the public interest?”
No serious mitigating (extraordinary) factor was brought forward. Financial loss or hardship, in and of itself does not qualify. The impending Gold Final draw related to the Ontario Sires Stakes is a self-imposed urgency.
Not granting the stay is not a pre execution as submitted by the appellant. There was a positive test result for the Class I drug, Aminorex on the horse, Northern Bullet. Under the Rules of Racing, that is an absolute liability offense. Illegal drugs are scourges of horse racing. They threaten its very survival not to mention the health and welfare of the horse. This Commission implemented the absolute liability penalty as part of a strategy to deter licensees from such activity. Tinkering with the Rule would not be in the best interests of racing nor the health and welfare of the horse.
This Panel supports former Vice Chair, Donnelly, where he wrote in the Amonetti reasons (TB 009/2009) at para 30. “To introduce a policy of tinkering with the length of the suspension under the authority of the Rule 24.03 would be folly for two reasons: The underlying principles of drug free racing and general deterrence as public interest concerns simply overwhelm individual hardship concerns... and to foster further appeals through an arbitrary and inconsistent application of the penalty is unfair to licensees...” At para 34 he further wrote. “The 90 day Rule was introduced with full awareness of the distinction between penalty ranges and fixed minimum penalties. There was an awareness of the impact of extenuating circumstances where there is an available penalty range. With that background, a policy decision was made. A fixed minimum penalty was established. The Rule was implemented and adequately promulgated.” The Panel notes that this Rule was implemented with full support from the industry.
The claim that a stay is warranted because there has not been a successful Aminorex prosecution is irrelevant and not factual. There are currently four Aminorex positive test results awaiting disposition. Each case will be adjudicated on the facts relative to each case as will this one at the appropriate time. The trainers related to the 2007 Aminorex positive tests were all absolved. That decision was based on new science at the time that the administration of the worming medication, Lavamisole, metabolized in the horse to Aminorex. It is reasonable to conclude such a defense is not now available for obvious reasons.
The appeal is premature and therefore does not meet the balance of convenience test. The potential harm to racing and the need to protect it far outweighs the appellant's privilege to race Northern Bullet. The appellant's legal counsel should be aware of this from his recent appearance at the Commission on a similar matter.
Due process plays an important role in the regulatory scheme for horse racing. It protects the rights of licensees to a fair and open process and should never be abbreviated. The appellant's request would have just that effect.
A key component of due process related to positive tests is an investigation. The importance of an investigation is highlighted in Bertrand (TB 005/2013) para 26. It reads, “the principle... that requires that investigative powers be interpreted in a manner that ensures that investigators will have sufficiently effective measures at their disposal to gather all information...” Until an investigation is complete and the report provided to the Commission officials to conduct a hearing as per the Rules of Racing, a Panel hearing is not an appropriate forum.
Aminorex, research has determined, is an exogenous drug. That means its source is external to the horse. The investigation will provide evidence to shed light on these related matters.
It would not be in the public interest to grant a stay. The Commission has a responsibility to protect the public interest. Granting a stay would not be in the best interest of racing. Mr. Moreau's interests must, for these very reasons, be secondary.
DATED this 25th day of September 2013.
_______________________________
Rod Seiling
Chair