RULING NUMBER COM QH 001/2015

COMMISSION HEARING TORONTO, ONTARIO – MAY 14, 2015

NOTICE OF DECISION

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

AND IN THE MATTER OF THE APPEAL OF RENEE WILSON

Renee Wilson, licence # 132394, appealed against Ruling Number QH ADMIN 2/2015 wherein the Deputy Director denied her request for a stay of Ruling Number QH 0163/2015.

Date of Hearing: May 14, 2015

ORC Panel: John W. Macdonald, Commissioner

Counsel for the Appellant: Frank L. Roth

Counsel for the Administration: Luisa Ritacca

Decision:

The Panel allowed the appeal and granted a two months’ stay with conditions.

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

DATED at Toronto this 25 day of May 2015.

Steven Lehman

Executive Director

ONTARIO RACING COMMISSION

IN THE MATTER OF THE APPEAL AND REQUEST FOR

HEARING OF RENEE WILSON

Hearing date: Thursday, May 14, 2015

Held at: 10 Carlson Court, Toronto, Ontario

Held before: Chairman John Macdonald

RULING

APPEARANCES:

Luisa Ritacca Counsel for the Commission

Frank L. Roth Counsel for Ms. Wilson

Tyler Durand Commission investigator

THE CHAIR: I've tried to carefully consider the evidence I've heard and the arguments of counsel, and I want to thank counsel for assisting in that regard. I found some of the things a little troubling and difficult.

Let me start off by saying, yes, the onus is on the appellant. That stands as it is to demonstrate the stay should be lifted.

I wanted to comment on some troubling things. Obviously I've already through this before, the fact that the appellant took no steps to either consult or do anything with respect to appealing this suspension from last October. That bothers me because we have this non‑racing period where a suspension is not a concern to a lot of people, no different than the thoroughbreds if they go south in the winter, they are not worried about suspension in January and February. That's a concern.

The explanation made some sense, especially since this is an appellant that has not had the experience before this board and realizing that there's a time period, and if you let that go by, you run into a problem.

The trailer situation also bothered me. We have no evidence of the purchase. We believe that it was bought. We don't have any evidence of prior use, what it was used for other than it was an operation that had cutting horses, that witness explained.

The trainer obligations are clear in that positive tests become an absolute liability, and we're looking at the safety of the horse. There should have been some suggestion of concern, how clean the trailer was, if that's the source of the contaminant.

The appellant has the obligation to supervise all staff and if there's a staff problem which resulted in the contaminant, whether it's the rider or someone else on the staff, that's her responsibility. She has a lot of horses to look after. I can understand that. You can't be everywhere at all times, but it's still the trainer's obligation.

And she had an obligation to find out a little bit more about the suspension that the rider had. That was something that was within her possibility. She tried, apparently, although we had no evidence directly that that's what ‑‑ he had told her that he couldn't. And she should have also made efforts to find other possible sources of the contaminant, whether it's a staff member, facilities where the horses were, whether it's in a (inaudible). She doesn't think so, she was only there a short time, but I gather this is contaminant that is not difficult to arrive at if people are using it.

Now, having said all that, the Czupa case is the foundation case where Chair Seiling set out the three tests for granting a stay. Mitigating factors obviously is the first one.

It's not direct here, but there is enough of a doubt as to what happened, or the source of the contaminant be discovered. It seems that everybody is focusing on the trailer, but if there was a test to show that there was amphetamine residue in the trailer material that Investigator Durant took out and then had tested.

The next test was a balance of convenience. That's a tossup here because there doesn't seem to be any serious problem for the public to be concerned. The fact that there's been great deal of financial difficulty because of the inability to earn a living in ‑‑ normally in a racing season, which is now on. We don't necessarily, as counsel for the administration has pointed out, that is not a big factor but it is something we have at least to look at and what the effect is on the general public. That's the next one, which is the public interest.

I am persuaded here that the fact that there was evidence that the amount of methamphetamine that was found has no effect on the horses' performance. That is very important, in my view, and that goes into the next item which I threw in in both the Cappuccitti and Cox cases, that if no amphetamine went through the horses' systems and there's no change in the horses' ability to perform better because of such a small amount, and it remains to be seen of course where the eventual contaminant, if that's it, came from.

I appreciate the candor that Mr. Durant had when he didn't believe that the appellant had given the horse the methamphetamine. That's not determinative. Someone else on her staff could have done that, in which case she would be responsible as the trainer. But the amount was so small that our expert witnesses did not think there was any possibility that the horses' performance was enhanced by what was there.

I am also mindful for the fairness position that there is and this is important, no prior offences. It isn't as if there's something hiding apparently and she was apparently ‑‑ Investigator Durant pointed out that she was cooperative, and that was in the brief of the administration. They were upfront saying the appellant was cooperative and they mentioned the fact that there were no prior offences.

Now, what I'm going to do is something that it makes a little more difficult for everyone probably and we're going to talk about this.

I'm going to grant a stay but restrict it basically to two months, which puts the onus on the appellant to bring this matter forward so there can be determination. It also gives both the administration and the appellant time to have the samples tested, as Dr. Beaumier said, for metabolites. I'm not sure if that can be done, but hopefully that will help resolve what's there. He explained the difference in the two types of amphetamine, which was very helpful, at least for me, to sort of understand just what we're talking about.

As I said, I'm basing a lot of my feelings in this matter on the fact that the amount found would have no effect on the performance of the horse and the suggestion which I have to adopt, because that's the only evidence we have before us, this amphetamine did not go through the horse, it was not ingested as such, which obviously leads to the conclusion that there had to be some other way that the horse would have obtained the amphetamine.

Now, having said that two months' stay, I'll also impose the terms, Policy 3‑2008 of the Commission, the guidelines. Those are the four that are set out there. Actually, I'm looking at ‑‑ there are five. I had forgotten about the proposed order, which is always possible if there's any subsequent offence.

This is to hereby certify that the forgoing is a true and accurate transcript of the proceedings to the best of my skill and ability.

Sandra Brereton

Certified Court Reporter

Registered Professional Reporter