RULING NUMBER COM TB 014/2014
COMMISSION HEARING TORONTO, ONTARIO – OCTOBER 15, 2014
NOTICE OF DECISION
IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF AN APPEAL AND REQUEST FOR A HEARING BY TODD KABEL
Ruling Number QH ADMIN 010/2014 dated March 28, 2014, rendered Todd Kabel (“Kabel”) ineligible to be licensed by the Ontario Racing Commission (ORC), for failure to adhere to the conditions of his Post Violation Agreement.
On September 9, 2014, Kabel completed an application for a Thoroughbred licence.
Date of Hearing: October 15, 2014
ORC Panel: John W. Macdonald, Commissioner
Representative for the Appellant: Robert King, Jr., Secretary Manager Jockeys’ Benefit Association
Counsel for the Administration: Angela Holland
The Panel accepted an Agreed Statement of Facts and Joint Submission on Disposition.
A transcript with the Panel’s oral Reasons for Decision is attached to this Notice.
DATED at Toronto this 16th day of October 2014.
Steven Lehman
Executive Director
ONTARIO RACING COMMISSION
THOROUGHBRED HEARING
IN THE MATTER OF THE RACING COMMISSION ACT, 2000, S.O. C.20 AND THE RULES OF THOROUGHBRED RACING:
AND IN THE MATTER OF AN APPEAL AND REQUEST FOR HEARING OF TODD KABEL:
Held Before:
John Macdonald Commissioner
These are an excerpt of the proceedings in the above mentioned matter held before The Ontario Racing Commission, Re: TODD KABEL, taken before Toronto Court Reporters, Suite 1410, 65 Queen Street West, Toronto, Ontario, at 10 Carlson Court, Suite 400, Toronto, Ontario, on the 15th day of October, 2014.
Appearances:
Angela Holland, for the Ontario Racing Commission Administration
Robert King, agent for Kabel
Ontario Racing Commission
Commission des courses de l’Ontario
Suite 400 10 Carlson Court Toronto ON M9W 6L2 Tel (416) 213-0520 Fax (416) 213-7827
Bureau 400 10 Carlson Court Toronto ON M9W 6L2 Tél (416) 213-0520 Téléc (416) 213-7827
AGREED STATEMENT OF FACTS
The licensee and Counsel for the Administration of the Ontario Racing Commission (the “ORC”) agree to the following facts:
Todd Kabel (“Kabel”), (licence number 11564) was licensed by the Ontario Racing Commission (“ORC”) as a Jockey.
On April 14, 2012, in accordance with Rule 36.08(f), (“SB Rules”), Kabel entered into a Post Violation Agreement (“PVA”), which included the following conditions on his ORC licence:
(i) Assessment
Cooperate fully with a Substance Abuse Professional (SAP) assessment and follow and recommendations made by a SAP.
(ii) Treatment/monitoring/aftercare
Adhere to any recommended treatment, monitoring and aftercare program.
(iii) Sobriety
Designated licensees must maintain sobriety upon return to duty.
(iv) Return to duty test
Designated licensees who have been suspended must provide proof of a negative alcohol and drug test before returning to duty.
(v) Unannounced testing
Comply with ongoing unannounced testing for the period of the agreement.
(vi) Out of Competition Testing
Designated licensees shall provide whereabouts information to the ORC through the Program Administrator or Investigator prior to departing from the province of Ontario.
Failure to adhere to this Out of Competition Testing provision may be deemed to be non-compliance with this Post-Violation Agreement.
(vii) No further violations
Commit no further violations of the Alcohol and Drug Policy.
(vii) Release of information
Authorize the assessor, treatment providers, medical review officer (MRO), SAP and Program Administrator, to release information to each other regarding participation in, attendance at and compliance with the program, the aftercare plan and the return to duty letter recommendations.
(viii) Meeting with SAP
Meet with the SAP upon completion of a treatment or aftercare program and ensure a final report is provided to the Program Administrator.
(ix) Clearance from Administrator
Obtain clearance from the Program Administrator upon the completion of all requirements of the alcohol and drug policy.
(x) Costs to be borne by Designated Licensee
All costs associated with testing, assessment treatment and aftercare will be borne by the Designated Licensee.
(xi) Additional Conditions
(xii) Failure/refusal to provide samples/failure to disclose results/tampering
Each of the following constitute violations of the alcohol and drug policy:
(i) failure or refusal to provide urine, saliva, or breath samples as requested,
(ii) failure or refusal to disclose test results to the Program Administrator or
(iii) a report by the medical review officer that the sample has been either tampered with or adulterated,
(xiii) Violation of post-violation agreement
Violation of any condition of this post-violation agreement may result in
(i) an immediate suspension of licence and
(ii) referral to a panel of the Ontario Racing Commission
Kabel failed to adhere to the conditions of his Post Violation Agreement. Specifically, Kabel was scheduled for a Follow-Up test pursuant to his Post violation Agreement. On March 5, 2014, Kabel advised Investigator Pam Bray that he had broken his shoulder which required surgery, and he would be incapacitated for a minimum of six weeks.
On March 21, 2014, Investigator Bray was advised that Kabel had been arrested for domestic assault and was currently being held pending bail. Kabel was unavailable to be contacted and therefore unavailable for followup testing as outlined in his Post Violation Agreement.
On March 28, 2014 a Ruling was issued making Kabel ineligible to be licensed until such time as he contacts the Deputy Director.
On September 9, 2014, Kabel contacted the Deputy Director and completed an application for a Thoroughbred licence.
On September 26, 2014, Kabel met with the Deputy Director.
On October 1, 2014, Kabel provided proof of a negative test result, required prior to the scheduling of a reinstatement Hearing.
On October 7, 2014, a Notice of Hearing was delivered to Kabel, scheduling a Hearing for October 15, 2014.
Joint Recommendation With Respect to Penalty
- The ORC Administration and Kabel jointly submit for the Panel’s consideration that the following disposition is appropriate in these circumstances:
i. Kabel to sign a new Post Violation Agreement for two (2) years, from October 15, 2014 – October 14, 2016;
ii. Kabel shall keep the peace and be of good behaviour;
iii. Kabel agrees to personally keep the ORC, via the Program Administrator or Investigator, informed of any breach of his license conditions;
iv. Kabel shall provide whereabouts information to the ORC through the Program Administrator or Investigator prior to departing from the province of Ontario, and shall consent to the ORC arranging for alternate testing, as required by his Post Violation Agreement, while out of province, the cost of such testing to be paid for by Kabel; and
v. Any breach of Kabel’s license conditions will result in an immediate two (2) year suspension and any such further sanctions at the discretion of the Deputy Director.
Dated at Toronto, Ontario, this 15th day of October, 2014.
Original signed by Todd Kabel
Todd Kabel
Dated at Toronto, Ontario, this 15th day of October, 2014.
Original signed by Angela Holland
Angela Holland
Counsel
ORC Administration
Hearing continued ...
MR. CHAIRMAN: So with that provision, that the post violation agreement that was in paragraph 10 sub (i) and that has been done it makes the position of the panel somewhat easier when we know that the agreement has been entered into and therefore the standard provisions of the post violation agreement, the order for two years, if there is any breach there would be an immediate suspension, standard out of competition testing and the rest of the things that are involved and go with it. Has the court reporter received a copy of this?
MS. HOLLAND: He has.
MR. CHAIRMAN: So the court reporter can insert the provisions of the joint recommendation into the decision. Anything further, counsel?
MS. HOLLAND: No, sir. Thank you.
MR. CHAIRMAN: Mr. King, do you have anything further? I don't think Mr. King heard me. Is there anything further, sir?
MR. KING: No, sir.
MR. CHAIRMAN: Then the order will go as requested with the joint recommendation with respect to penalty paragraph 10 as set out in the Agreed Statement of Facts.
MS. HOLLAND: Thank you, sir.
CERTIFIED CORRECT:__________________________________
RAYMOND P. MACDONALD, B.A., CVR
Commissioner of Oaths