Appeal of Greg D. Cox, 2014 CanLII 57009

COMMISSION HEARING TORONTO, ONTARIO – SEPTEMBER 24, 2014

IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;

AND IN THE MATTER OF THE APPEAL OF GREG D. COX

Greg D. Cox, licence # 114786, appealed Ruling Number TB ADMIN 55/2014 wherein he was denied a stay of Ruling TB 8910/2014, dated September 10, 2014.

Date of Hearing: September 24, 2014

ORC Panel: John W. Macdonald, Commissioner

Counsel for the Appellant: Peter Howard & Christine McMillan

Counsel for the Administration: Brendan Van Niejenhuis & Stephen Aylward

The Panel allowed the appeal.

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

DATED at Toronto this 1^st day of October 2014.

Steven Lehman

Executive Director

ONTARIO RACING COMMISSION

HEARING

IN THE MATTER OF AN APPEAL AND REQUEST FOR HEARING OF GREG COX:

Held Before:

John Macdonald Chair

These are an excerpt of the proceedings in the above mentioned matter held before The Ontario Racing Commission, Re: GREG COX, 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 September, 2014.

Appearances:

Brendon Van Niejenhuis & Stephen Aylward for the Ontario Racing Commission Administration

Peter Howard & Christine McMillan for the appellants

Hearing continued ...

MR. CHAIRMAN: Thank gentlemen. I will go through the Czupa test. Actually, I will do it from the reverse order because the public interest that was just spoken about by Mr. Howard and it was acknowledged by Mr. Howard because of the absolute liability provisions of the rules this happens and that's as the result of former Chair Seiling's three rule test and counsel pointed out that there is a deterrent factor and that's significant and that's why the absolute liability. Public confidence is also one of the factors mentioned but at the same time fair and reasonable process. It is difficult with the overriding factor of the length of time that Mr. Cox, and I will refer to that again, has been in the business with a clean record. So I am not sure if we can achieve an expedited hearing that the public interest will be the primary concern. It's a factor but that's not my sole determining factor. The balance of convenience; obviously as a horseman in the fall with races still on it is certainly very convenient to allow, if it can be done, a short time period before the hearing can be obtained on the appeal. Reputation in the industry is very important to any trainer and I hear Mr. Howard. I know what the story is with especially if you have got young horses and there is a time period involved where there is suspension and no opportunity to do anything the owner just doesn't know what or when it is going to happen so obviously if I'm an owner with a decent horse I am going to want to race as often as possible before the season comes to a conclusion here. So the convenience factor helps me as far as Mr. Cox is concerned. The biggest difficulty is to me the mitigating factor. We have heard the argument about the threshold of cocaine and that is going to be something in the appeal. It is beyond my understanding and is going to result from having testimony from expert witnesses whether, as Mr. Howard says, that this is not really a positive test because it is out of the category. Now that remains to be seen whether that is correct or not because the test showed there was a trace of cocaine on it and on the basis as I understand it that's why it was a positive test. Overriding this and not to pick on Chairman Seiling where he also said that financial hardship in itself is not a reason for granting of a stay and in and of itself is there of course so that it is something that you can consider, although, that should not be a panel's primary concern because we are interested in getting the correct result, not necessarily one that an appellant may be forced to suffer during the time period when there is a suspension in effect and for Chair Seiling's tests in the Czupa case I would add a fairness provision and that's where I end up coming down because I think in fairness someone who has had a good reputation as far as the Racing Commission is concerned and obviously the public know that. There is no suggestion, although, it was pointed out that there had been one medication error resulting in a horse being scratched as I understand it but that's doing a protective thing for the benefit of the public. I'm talking about the betting public now and the public generally. So in fairness, I am going to grant the stay and then the question I have is, is there a time when it is reasonable to have, as agreed by counsel for Mr. Cox on his behalf that the hearing should be expedited so this matter doesn't drag on and I will say on that basis this does not appear to be a case where we have had people drag on hearings until they get to the point where they can take a suspension time and go south.

MR. HOWARD: I have told my friend; they have the Tobin report, I will have the Cole report to them next week so it will then be how long my friend needs to respond to it.

MR. VAN NIEJENHUIS: The only issue obviously this morning is that the witness that we will probably want to consult from the CPMA is going to be away until the end of September and then has some time off in October. Hopefully we can get a report very quickly back in October but in fairness to the Administration I should probably consult with Ms. Harquail and figure out who is going to do this hearing before committing to a date but I can certainly commit to approach it expeditiously.

MR. CHAIRMAN: It is very difficult for me as the Chair today to say an expedited hearing by such and such a date. I have to rely on counsel to do as they say and I'm sure counsel for the Administration will persuade Mr. Howard when they are ready let's get it on.

MR. VAN NIEJENHUIS: Well, I think it would be appropriate to give a direction it be expedited and perhaps you can articulate a date by when that is needed.

MR. CHAIRMAN: We are all agreed to that so I would so order that the matter be expedited and Mr. Howard has indicated that the second report will be available.

MR. HOWARD: By the end of this week for sure and I will try and get it to my friend earlier but it will be Friday of next week for sure and I will try for it earlier.

MR. CHAIRMAN: Thank you gentlemen.

MR. HOWARD: Thank you, Mr. Chair.

CERTIFIED CORRECT:_________________________________

RAYMOND P. MACDONALD, B.A., CVR

Commissioner of Oaths