AND IN THE MATTER OF THE APPEAL OF COLIN JOHNSON

Colin Johnson, Licence # R56508, appealed against Ruling Numbers SB 45928 and SB 44076.

Date of Hearing: March 20, 2014

ORC Panel Members: Elmer Buchanan, Chair Anthony Williams, Vice Chair Daniel Nixon, Commissioner

Counsel for the Appellant: Larry Todd

Counsel for the Administration: Jennifer Friedman

The Panel allowed the appeal in part by varying the penalty.

A transcript with the Panel’s oral Reasons for Decision is attached to this Notice.

DATED at Toronto this 27^th day of March 2014.

______________________________

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 COLIN JOHNSON:

Held Before:

Anthony Williams Vice Chairman

Elmer Buchanan Chairman

Dan Nixon Commissioner

These are an excerpt of the proceedings in the above mentioned matter held before The Ontario Racing Commission, Re: COLIN JOHNSON, taken before Toronto Court Reporters, Suite 1410, 65 Queen Street West, Toronto, Ontario, at 10 Carlson Court, Suite 400, Toronto, Ontario, on the 20th day of March, 2014.

Appearances:

Jennifer Friedman,

for the Ontario Racing Commission Administration

Larry Todd, for the appellant Colin Johnson

Hearing continued ...

MR. CHAIRMAN: Please be seated. Since these proceedings will be subject to a ruling today, the full reasons for decision to follow, I have, I won't advise as to the source, a curfew in relation to today's reasons. It will be dramatically abbreviated. This is an appeal by Colin Johnson, trainer against the rulings of the Standardbred track judges made at Woodbine Racetrack on January 15th of the year 2014 in relation to a positive test for DERVISH HANOVER for a Class 2 prohibited drug on October 2012 at Rideau Carlton Raceway. The sanction imposed upon Mr. Johnson was a $2,000.00 fine, a six month suspension, two years probation. The suspension commenced on the 20th day of January, 2014. We are now in day 60 and I respect the civil law lesson I received a short time ago. The certificate of positive analysis was for a drug within the meaning of the paramutuel betting supervision regulations. In cases of this nature, absolute liability positive tests, the burden of proof is upon the appellant to show on a balance of probabilities that it was more likely than not that he exercised what has been variously called reasonable care of due diligence. I won't seek to provide the various authorities at this stage but they will materialize in the ultimate full reasons. A decision of the Ontario Court of Justice on February 11, 2012 at Toronto entitled Liat Podolsky EcoJustice against Cadillac Fairview Corporation and others stated: "It must not be forgotten that the standard to be applied in assessing due diligence is that of the reasonable person in like circumstances, not one of immediate perfection upon recognition of a problem". The decision of Brad Shakes which has been referred to in this proceeding, a decision from August 16th, 2012 of the Commission Standardbred Ruling 0312/2012 stated as it urged by Council on behalf of the Administration: "Negligent violators of the trainer responsibility rule fall within breach of due diligence standards. The absolute liability standard protects against those who willfully disregard the drug and medication rules thereby cheating competitors, the wagering public and the public interest in the industry at large". Your panel has considered this matter throughout the recesses today and we have had the opportunity to have the materials well in advance. We have come to the unanimous opinion that the appellant Colin Johnson has met the burden of proof upon him to show due diligence, that he acted as a reasonable person in view of all of the circumstances. If a similar situation were to arise in the future in relation to contamination within a stall by substances that may or may not have been consumed by an employee groom or other helper the approach may be different. There is a heightened duty of care as results of your experience here today but we have come to the conclusion attempting to follow the thrust of the decision in the Shakes case in relation to sanctions where the Ontario Racing Commission approved by the Ontario Supreme Court Divisional Court has stated that a fine for an offence of this nature must be in a non oppressive amount and that there should be no suspension. We are mindful of the fact that Mr. Johnson has served 60 days of suspension, in another context referred to as time already served. We are of the unanimous opinion that we will confirm the $2,000.00 fine that was imposed by the panel of track judges, that we will allow the appeal in part regarding penalty to delete the period of suspension in its entirety, mindful that you have served 60 days and that we will seek to maintain the two year probationary period. We are hopeful that your career continues in a successful fashion, that you are hyper vigilant in relation to these matters and that it may be at a later stage in the ultimate reasons that are provided there will be some commentary as to an approach that the Racing Commission might take in helping share information with the industry of certain dangers that are there. That abides with the curfew and thank you for your participation. Yes?

MR. TODD: Just one comment, Mr. Chairman. When you are writing the reasons or doing whatever you have to do down the road will there - it has come up before when we have cancelled days or even in English. Any observations of comments that you could make on that would be of great assistance because it comes up with some regularity. In effect, ex post facto where one of the suggestions I argued once before in front of Chairman Sandinsky was do I get banked credit or part credit. You know what I'm talking about.

MR. CHAIRMAN: Yes, yes. I had that issue on multiple occasions and still do in the criminal system.

MR. TODD: In the criminal courts and ‑‑

MR. CHAIRMAN: And although it can be a global consideration. It is apparently the case authority is that it can't be a factor.

MR. TODD: Any comments you could make; it doesn't have to be applicable here but in general, would help because in the case that Chairman Sandinsky and I were warring about in the late 1990's for other reasons it became obiter and it never got dealt with and it has been out there in half a dozen cases since then.

MR. CHAIRMAN: So heaven forbid if Mr. Colin Johnson were to be back in the future for an offence that was subject to a suspension the 60 days are really lost days.

MR. TODD: Well, just any comments you have would be of assistance because we have never got a ruling about anything like that.

MR. CHAIRMAN: Thank you.

MR. TODD: Thank you very much, sir.

MR. CHAIRMAN: The second of the three sanctions was a factor in the total consideration of the matter.

MR. TODD: I appreciate it. Thank you very much and sorry for keeping you here and missing supper.

CERTIFIED CORRECT:_______________________________

RAYMOND P. MACDONALD, B.A., CAR

Commissioner of Oaths

Colin Johnson, 2014 CanLII 14109

Case Summary

AND IN THE MATTER OF THE APPEAL OF COLIN JOHNSON