RULING NUMBER COM SB 015/2015
COMMISSION HEARING TORONTO, ONTARIO – JUNE 10, 2015
NOTICE OF DECISION
IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF THE REDETERMINATION OF PENALTY FOR RENÉ ALLARD
At a hearing on January 13, 2015, the Ontario Divisional Court granted the application by René Allard for judicial review and set aside the penalty assessed in COM RULING NUMBER 025/2013. The issue of penalty was referred back to the Commission for re-determination.
Date of Hearing: June 10, 2015
ORC Panel: John W. Macdonald, Commissioner
Counsel for the Appellant: Larry Todd
Counsel for the Administration: Angela Holland
Decision:
The Panel accepted the joint penalty submitted by counsel of both the Appellant and the Administration in the amount of $300.
A transcript with the Panel’s oral Reasons for Decision is attached to this Notice.
DATED at Toronto this 23^rd^ day of June 2015.
______________________________
Steven Lehman
Executive Director
ONTARIO RACING COMMISSION
STANDARDBRED HEARING
IN THE MATTER OF THE STANDARDBRED RULING
COM SB 025/2013 – RENÉ ALLARD and
Held Before:
John Macdonald Chairman of Panel
This is an excerpt of the proceedings in the above mentioned matter held before The Ontario Racing Commission, re RENE ALLARD, taken before Toronto Court Reporters, Suite 1410, 65 Queen Street West, Toronto, Ontario, and held at 10 Carlson Court, Suite 400, Toronto, Ontario, on the 10^th^ day of June, 2015.
APPEARANCES:
Angela Holland for the Ontario Racing Commission
Administration
Larry Todd for Rene Allard
MR. CHAIRMAN: This is a matter under the Ontario Racing Commission Act. My name is John Macdonald, I’m sitting here as Panel member and I gather, counsel, that this relates to Rene Allard.
MR. TODD: Rene Allard, sir, and--
MR. CHAIRMAN: Would you identify yourself, please, for the court reporter?
MR. TODD: Larry Todd for Mr. Allard, and my friend Angela Holland for the administration, and if it assists, sir, in identification, this which. . .this proceeding which I’ll explain momentarily and file some exhibits relates to the prior proceeding in this matter in this matter in which Mr. Allard . . .and the Standardbred Ruling was SB025/2013. It was a proceeding against Mr. Allard for a lasix overage, Georgian Downs, in the fall of 2012.
MR. CHAIRMAN: Lasix. . .?
MR. TODD: Overage. If I can help you, Mr. Chairman, just for your understanding, Mr. Allard was assessed a penalty by the judges at Georgian for a lasix overage. He appealed through your former associate, Mr. Burgess, a lengthy hearing here at the Racing Commission before Chair Seiling and I took the matter to the Divisional Court in January of 2015. And if I could file as Exhibits 1 and 2 respectively the Oral Reasons of the Divisional Court and the actual Judgment of the Divisional Court as Exhibit 2.
MR. CHAIRMAN: Exhibit 1 is the. . .?
MR. TODD: Oral Reasons, and the actual Judgment--
MR. CHAIRMAN: Reasons of the Divisional Court in the matter of Rene Allard and the Ontario Racing Commission under date of. . .
MR. TODD: Dates of the. . .heard on January 13, 2015. If that could be Exhibit 1, Mr. Chairman?
MR. CHAIRMAN: January 13^th^, yes.
EXHIBIT NO. 1: Reasons of the Divisional Court dated January 13, 2015.
MR. TODD: And Exhibit 2 could be the formal Judgment, and as you’ll see from the formal Order the judicial review application was allowed. The decision of the judges and Chair Seiling who had dismissed Mr. Allard’s appeal was quashed.
MR. CHAIR: Exhibit 2 is the Order of the Divisional Court in the same matter, 331/13, Exhibit 2.
EXHIBIT NO. 2: Order of the Divisional Court, File No. 331/13.
MR. TODD: And you’ll see on page 2 of Exhibit 2, sir, if you could turn to paragraph 1 –- this is how it gets back to you -– prior proceedings here were quashed and set aside, words that we heard earlier this morning, I guess, and the issue of penalty was referred back to the Ontario Racing Commission.
My friend and I are in agreement that an Appeal Panel of yourself is the appropriate place for this to be heard since the ORC Panel’s decision was quashed. In essence, for your understanding—-
MR. CHAIRMAN: Can I ask one question?
MR. TODD: Yes.
MR. CHAIRMAN: It seems a little extreme that an Order of the Divisional Court would appear to have interest at 30% per year.
MS. HOLLAND: That’s what I thought. It’s three point. . . I would hope it’s three point zero.
MR. CHAIRMAN: The decimal is missing.
MR. TODD: The decimal is missing but that’s not my endorsement. I plead innocence on that one, sir. That’s the Registrar’s--
MR. CHAIRMAN: I have some sympathy for the Ontario Racing Commission.
MR. TODD: I will give the Racing Commission administration fair due, sir. The costs and the HST were paid promptly in two weeks and Mr. Allard appreciated their attention.
The issue was the industry and in particular Appeal Panels and the administration for a number of years considered lasix overage as a classified offence and treated same under the Guidelines, and Mr. Burgess and Mr. Seiling got into it in a fairly lengthy –- it was a day and a half hearing on the original appeal from the judges –- and passed collaterally on that. I picked up two or three grounds for judicial review and it was found that contrary to everyone’s thinking, including CPMA’s, a lasix excess or a lasix overage is not covered by the Racing Commission’s Penalty Guidelines and it’s not a classified offence. In effect it was found to be a nothing by the Divisional Court and the only guidance for a lasix overage penalty was found in the Reasons of the Divisional Court, and the argument there to come from the Uniform Classification which we have in our rules, when you get a positive you’re supposed to . . .judges are supposed to go under Rule 9.08 through the recommended penalty models. It’s my understanding that the administration is considering perhaps revising, adding or amending lasix to the Penalty Guidelines but there’s no . . .the Divisional Court found that there is no specific rule dealing with lasix or lasix overages now, and so the administration and I have agreed that because the Rules of Standardbred Racing reference the Uniform Classification Guidelines, and I’m . . .can I make as Exhibit Number 3 page 40 of those Guidelines, Mr. Chairman? And the referable--
MR. CHAIRMAN: For the court reporter, Exhibit 3 is as indicated Recommended Penalties and Model Rule—
MR. TODD: Uniform Classification Guidelines for Foreign Substances (Version 5.0).
EXHIBIT NO. 3: Uniform Classification Guidelines for Foreign Substances (Version 5.0).
MR. TODD: And, Mr. Chairman, if you go to the top box, Licensed Trainer, in the second box over you’ll see furosemide among four drugs there with respect to overages, fourth line down in the second box at the top, furosemide greater than 100 nanograms per millilitre. Right here, sir.
MR. CHAIRMAN: Yes, I see that.
MR. TODD: Okay. And the recommended penalties are a minimum of a written warning to a maximum fine of $500.00 for first offence. First offence is to the left of that. Ms. Holland and I have agreed, based on this being the only existing directive for lasix overages, we’ve agreed that the appropriate penalty for Mr. Allard in this context is a $300.00 fine. And for the record, Exhibit 4, we can file a letter of. . .my letter of April 23^rd^ to Ms. Holland confirming our joint submission to the Panel in that amount.
MR. CHAIRMAN: You want that as an exhibit, Mr. Todd?
MR. TODD: Pardon me?
MR. CHAIRMAN: Exhibit 4?
MR. TODD: Yes, sir. Please.
MR. CHAIRMAN: Exhibit 4 is an unsigned copy of a letter to Ms. Holland, Litigation Counsel for the Ontario Racing Commission, from the office of Mr. Larry Todd, dated April 23, 2015. This exhibit deals with the confirmation of the agreed amount of $300.00 as a fine for the offence relating to the lasix overage.
EXHIBIT NO. 4: Letter dated April 23, 2015 from Larry Todd to Angela Holland.
MR. TODD: That will be our joint submission by the administration and Mr. Allard to you, sir.
MR. CHAIRMAN: Counsel?
MS. HOLLAND: I can confirm for the record that the administration has agreed to a penalty of $300.00.
MR. TODD: And the only notation or caveat, sir, is when somebody issues whatever Order that it’s not a penalty under the Ontario Penalty Guidelines, it’s under the Uniform Classification.
MR. CHAIRMAN: Counsel for the administration and Mr. Todd, thank you. Was there a discussion as to the penalty based on the Guidelines with any of the judges?
MR. TODD: The original penalty that was assessed and it’s referenced in the Chair’s Appellant to Reasons (sic) is that the penalty assessed to Mr. Allard under the purported Guidelines was in the middle to low range and that was appropriate when the appeal was dismissed, so three hundred in a regime of five hundred is more than what the judges assessed and what the Appeal Panel found appropriate when they dismissed the appeal.
MR. CHAIRMAN: Since there is a gap, you were discussing about, you know, what might be done, has there been any discussion with the judges? Are they aware of this?
MS. HOLLAND: I can advise the Panel that I have spoken with the Racing Operations portion of the Commission, so I would assume, yes, that the judges have been advised.
MR. TODD: And after the . .well, Ms. Harquil attended the hearing in the Divisional Court and I know she and Stockwoods, the external counsel that did the judicial review, were contemplating having to do something on a go forward basis and I asked Maureen about it a couple of weeks ago and she said, “We’re working on it”, and I was imparted no further knowledge in answer.
MR. CHAIRMAN: Thank you. Is there anything else, counsel?
MS. HOLLAND: No, sir.
MR. CHAIRMAN: We’ll have a short leave, thank you.
MR. TODD: Thank you very much, sir.
(SHORT RECESS)
MR. CHAIRMAN: The penalty which has been submitted by counsel for both the appellant and the administration has been accepted. This matter is now terminated.
MS. HOLLAND: Thank you, sir.
CERTIFIED CORRECT:_________________________
CHARLENE MASSEY, CVR, CM