RULING NUMBER COM SB 047/2013
COMMISSION HEARING TORONTO, ONTARIO – NOVEMBER 5, 2013
NOTICE OF DECISION
IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF THE LESLIE JOYCE APPEAL
Leslie Joyce appealed against Ruling Number SB 93/2013.
Date of Hearing: November 5, 2013
ORC Panel Members: Commissioner John Macdonald
Representative for Appellant: Brian Tropea as a friend
Counsel for the Administration: Jennifer Friedman
The Panel allowed the appeal with the following condition:
The stay is conditional upon this matter being dealt with on or before January 15th. If not heard by that date then the stay will be rescinded and the suspension will continue.
A transcript with the Panel’s oral Reasons for Decision is attached to this Notice.
DATED at Toronto this 12th day of November 2013.
Steven Lehman
Executive Director
ONTARIO RACING COMMISSION
STANDARDBRED HEARING
IN THE MATTER OF THE RACING COMMISSION ACT, 2000, S.O. C.20 AND THE RULES OF STANDARDBRED RACING:
AND IN THE MATTER OF AN APPEAL AND REQUEST FOR HEARING OF LESLIE JOYCE:
Held Before:
John Macdonald Chairman
These are an excerpt of the proceedings in the above mentioned matter held before The Ontario Racing Commission, Re: LESLIE JOYCE, taken before Toronto Court Reporters, Suite 1410, 65 Queen Street West, Toronto, Ontario, at 10 Carlson Court, Suite 400, Toronto, Ontario, on the 5th day of November, 2013.
Appearances:
Jennifer Friedman,
for the Ontario Racing Commission Administration
Brian Tropea for the appellant Leslie Joyce
Hearing continued ...
MR. CHAIRMAN: All rise. Thank you. Please be seated. Thank you for your patience. As you may have realized it took me a little longer to come to a decision that I thought it would be. First of all, I want to point out, as I indicated earlier, is not a hearing on the merits of this case where there is going to be an imposition of penalties or not. It is a Class 2 drug, one of those which has absolute liability so the onus legally shifts shortly after to the appellant and counsel's due diligence to work on what the penalty might be if that is the situation.
We have a general directive policy No. 7-2007 which sets out stays. I do have some advantage and I have some discretion and there has been cases that set out the basic tests where a stay will be granted and they are basically contained in the factum which is Exhibit 2 and the first one that is in there is the Czupa case where it sets out three tests for a stay and that's at the bottom of page 4, item 17. There is a serious mitigating factor, where does the balance of convenience lie and where is the public interest. Now this same series of tests is also referred to in the Moreau case which is at tab F. In that case it is set out starting with paragraph 15. The one thing that they both do and we are persuaded to follow is financial hardship in itself does not qualify as a mitigating factor but what does qualify in my mind as a mitigating factor is, as pointed out by Mr. Tropea, is in the notes of Judge Bill Maertens and where he pointed out that there is no previous positive. On the balance of probabilities the former owner had given the horse sheep wormer. As far as he knew she did not administer the drug and he thought it was reasonable for her to assume that whatever drugs had been administered to the horse that twenty days would have been a reasonable time for the system of the horse to have removed all the drugs from its system. So in this case I do find that there is that mitigating factor and I guess the balance of convenience, and part of that is trying to have this matter heard as expeditiously as possible. It is not a season where some trainers are asking for stays so that they can prolong matters, which has been a difficulty, so that they can participate in various stake races. So there is the convenience factor to me here is not totally irrelevant but there is one. The public interest one is where I have the most difficulty. I am persuaded on a positive basis for the appellant that the case involving a number of people basically known as Hamanther and involving WEG where clearly it pointed out that the principles of due process and protection against imposition of penalty absent fault. Now we don't know whether there is fault here or not. That's to be determined by a panel hearing the actual case. With a date hopefully to be set a reasonable time from now I would now also go to the point of adding in there should be a fairness factor and I believe Mr. Tropea did mention that word once and it had also occurred to me before that, that here we have someone, while the material wasn't totally conclusive; I appreciate that the appellant is a self represented person basically with the assistance of Mr. Tropea as a friend to do what he can, that we have to give some recognition to her being self represented and trying to be fair because this is not a situation where some of the more common drugs are used to take advantage of other participants by providing enhancing drugs. She may even be found blameless, although, we do have the absolute liability situation here. In summation, I'm going to allow the appeal, grant a stay but I'm open to suggestions as to a conditional time because I still feel that there should be a hearing on this prior to at least the end of this calendar year so that this stay does not become one that goes on and on. We have had situations where, and counsel has pointed that out today, there have been a stay to a specific date and we had the matter carry on passed those dates. Do I have any suggestions from counsel as to how we handle this conditional stay? Ms. Friedman?
MS. FRIEDMAN: Well, one option is to get the calendar from Ms. Wright and attempt to set tentative hearing dates or another alternative is to perhaps suggest that by January 15th that a hearing in the matter be heard before January 15th.
MR. CHAIRMAN: Mr. Tropea?
MR. TROPEA: We are fine with that.
MR. CHAIRMAN: Rather than waste the time of all the people here I will add to the order that the stay is conditional upon this matter being dealt with on or before January 15th. If not heard by that date then the stay will be rescinded and the suspension will continue. Is that satisfactory?
MS. FRIEDMAN: Yes.
MR. TROPEA: It is for me, too.
MR. CHAIRMAN: Thank you all.
MR. TROPEA: Thank you, sir.
CERTIFIED CORRECT:_________________________________
RAYMOND P. MACDONALD, B.A., CVR
Commissioner of Oaths