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RULING NUMBER COM TB 017/2014
COMMISSION HEARING TORONTO, ONTARIO – NOVEMBER 6, 2014
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NOTICE OF DECISION
IN THE MATTER OF THE RACING COMMISSION ACT, [S.O. 2000, c.20](https://www.canlii.org/en/on/laws/stat/so-2000-c-20/latest/so-2000-c-20.html);
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## AND IN THE MATTER OF THE APPEAL OF LARRY CAPPUCCITTI
Larry Cappuccitti, licence # 134609, appealed against Ruling Number TB ADMIN 66/2014 wherein the Deputy Director denied his application for a stay of Ruling Number TB 8919/2014 issued on September 12, 2014.
Date of Hearing: November 6, 2014
ORC Panel: John W. Macdonald, Commissioner
Counsel for the Appellant: Frank L. Roth
Counsel for the Administration: Brendan Van Niejenhuis
The Panel granted his application for a stay.
A transcript with the Panel’s oral Reasons for Decision is attached to this Notice.
DATED at Toronto this 7<sup>th</sup> day of November 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 LARRY CAPPUCCITTI:
Held Before:
John Macdonald Chairman
These are an excerpt of the proceedings in the above mentioned matter held before The Ontario Racing Commission, Re: LARRY CAPPUCCITTI, taken before Toronto Court Reporters, Suite 1410, 65 Queen Street West, Toronto, Ontario, at 10 Carlson Court, Suite 400, Toronto, Ontario, on the 6th day of November, 2014.
Appearances:
Brendan Van Niejenhuis,
for the Ontario Racing Commission Administration
Frank Roth, for the appellant Cappuccitti
Hearing continued ...
MR. CHAIRMAN: Thank you, gentlemen. As counsel pointed out this is a very regulated industry and we have absolute liability and as mentioned in the cases the loss of income, and I can throw in reputation in there at the same time, is not and as Chair Seiling said, in and of itself a compelling reason to suspend the stay. I looked at the tests that were set out in the Czupa case, a serious mitigating factor and that's where I have the biggest problem. We have, as counsel acknowledged, an issue to try and that's when you will get into the question of the chain of custody and where the possibility of contamination or not came from. It is a factor.
On the balance of convenience in this case it is a tossup and as counsel pointed out this does not appear to be a case where there is an application for a stay because there are delays involved which is one of the cases that we suffered from in the past. The next problem is the public interest because the public notices such and such a trainer, whether standardbred or thoroughbred, has made application for a stay for other reasons, financial, the season going on and that's not the case here. So I don't think the public interest is going to be affected.
In my view, it again comes down to what I said in the Cox case, fairness, and that's where I look at the record of the appellant which while he has not been involved now as in some cases, for instance, not as long in the business as Mr. Cox was but long enough that in the industry with his number of horses that somebody can make a mistake and suffer a penalty. As I understand it from the evidence that is not the case here, that there have been no prior suspension or offence so I take that into consideration when I'm looking at what is fair.
This application could have brought on a little earlier but I gather that counsel was unavailable so that delayed it and we are now getting close to the end of the thoroughbred season and I'm going to grant the stay. I think there has been enough doubt in what has been put forward and in fairness to the appellant the stay should be granted. As a secondary matter which flows from that is the policy counsel for the Administration pointed out that should be in effect as a condition of the stay. Obviously the first one is that there are no violations of any of the rules; in which case, the stay would be immediately terminated and the penalty would be back in force and that's policy, I think, 3 of 2008?
MR. VAN NIEJENHUIS: That would be 3 of 2008. Yes
MR. CHAIRMAN: 2008 where the terms including allowing out of competition testing and standard items like that until such time as a hearing could be held. I also like counsel's suggestion that the hearing should take place before the start of the thoroughbred season and hopefully a long time before that. I don't know who will be on the panel at that time but I'm sure you gentlemen will be here to argue the matter fully there so that we can have that resolved. I am anxious to hear the results of that myself, whether I am involved on the panel or not. It does bring in serious questions. Thank you, gentlemen. Any further comments?
MR. ROTH: Thank you, sir.
MR. VAN NIEJENHUIS: No, I think it is clear. Thank you, sir.
CERTIFIED CORRECT:_________________________________
RAYMOND P. MACDONALD, B.A., CVR
Commissioner of Oaths
minicounsel