RULING NUMBER COM SB 031/2014
COMMISSION HEARING TORONTO, ONTARIO – DECEMBER 23, 2014
NOTICE OF DECISION
IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF THE APPEAL BY ANTHONY MACDONALD
Anthony MacDonald appealed against the decision of the Director to deny a stay application brought in relation to Standardbred Ruling 447479 dated December the 4th, 2014.
Date of Hearing: December 23, 2014
ORC Panel: Sandra Meyrick, Commissioner
Counsel for the Appellant: Robert B. Burgess, Q.C.
Counsel for the Administration: Brendan Van Niejenhuis
The Panel granted the stay with conditions.
A transcript with the Panel’s oral Reasons for Decision is attached to this Notice.
DATED at Toronto this 5th day of January, 2015.
______________________________
Steven Lehman
Executive Director
ONTARIO RACING COMMISSION
STANDARDBRED HEARING
IN THE MATTER OF THE RACING COMMISSION ACT, 2000, S.O. C.20 AND THE RULES OF STANDARDBRED RACING:
AND IN THE MATTER OF AN APPEAL AND REQUEST FOR HEARING OF ANTHONY MACDONALD:
Held Before:
Sandra Meyrick Chairperson
These are an excerpt of the proceedings in the above mentioned matter held before The Ontario Racing Commission, Re: ANTHONY MACDONALD, taken before Toronto Court Reporters, Suite 1410, 65 Queen Street West, Toronto, Ontario, at 10 Carlson Court, Suite 400, Toronto, Ontario, on the 23rd day of December, 2014.
Appearances:
Brendan Van Niejenhuis, for the Ontario Racing Commission Administration
Robert Burgess, Q.C. for the appellant Anthony MacDonald
Hearing continued ...
MADAME CHAIR: Sorry for the delay. I was called into a conference call with our Chair and I didn't expect it to go on for quite so long. So my apologies. Okay, so I am going to grant the stay this morning. This is an appeal of the decision of the Director to deny a stay application brought in relation to Standardbred Ruling 447479 dated December the 4th, 2014. The denial is found at Standardbred Ruling 47/2014 dated December 10th, 2014. A notice of appeal has been filed. The appeal will be heard in due course upon the production and exchange of disclosure. The Commission has heard evidence in relation to the request for a stay, including viva voce testimony of Anthony MacDonald and Dr. Chris Grossenbacher. No direct evidence has been led by the Administration. The Racing Commission Act mandates that the ORC exercise its powers in the public interest and in the best interest of racing. The Rules of Standardbred Racing, particularly at 11.10.01, find it is an absolute liability offence the positive testing of a horse for a Class II drug as the drug found in the horse STONEBRIDGE RIDGE. The Commission has found various exceptions when penalizing parties in relation to this absolute liability offence where in more recent decisions, for example, fairness is considered. It is my view that fairness must be considered alongside the best interests of racing here in this particular case. The evidence here is that the trainer Anthony MacDonald has a good record in the industry. He has done no wrongdoing in relation to this positive test. His vet Dr. Grossenbacher has followed the guidelines of the CPMA to the letter and in fact medicated STONEBRIDGE RIDGE with approximately half the recommended dosage of medication stated to be the appropriate dosage within the CPMA standards. Dr. Grossenbacher also provided more than the allotted time for the metabolization of this medication as recommended under the CPMA standards. On the evidence and on the balance of convenience I find that a stay should be granted. Now I'm asking counsel if there are any conditions on behalf of the Administration that you would like imposed on this stay?
MR. VAN NIEJENHUIS: Just give me one moment. I will ask that the usual conditions be imposed and I will find those in a second.
MADAME CHAIR: Yes. Obviously that there are no further positive tests.
MR. VAN NIEJENHUIS: So I would ask that the conditions that were imposed in the Cappuccitti case which are the "usual conditions" be imposed again here and they are as follows, that there be no violation of the rules during the term of the stay and if there are any positive tests or other violations of the rules during the period of the stay that the stay be terminated. That's in accordance with policy number 3 of 2008. In fact, what I might just suggest what we do is refer to the terms that are listed in policy directive number 3 of 2008 which are in the back of the consolidated rules.
MADAME CHAIR: I will just find mine here.
MR. VAN NIEJENHUIS: That is to keep the peace and be of good behaviour, to allow access to investigators to the stabling area for purposes of search, to permit the seizure of illegal and untherapeutic medications such as may be found, to be subject to the out of competition program.
MADAME CHAIR: Any conditions with regard to the return of this matter?
MR. VAN NIEJENHUIS: I think at this point I am not in a position to ask for any because I am not in any position to warrant the timing. I certainly would consider that but I don't think we are in a position to really articulate something concrete today.
MADAME CHAIR: Thank you. Any objections to those conditions being imposed?
MR. BURGESS: No, there are none whatever and the other thing I would cite is that when we come back here if it is possible that you would take the case when we have it again. I know it is not in your power to do so but you are already fixed with the knowledge.
MADAME CHAIR: Well, I am sure they will find me functus. I will not be permitted to hear the hearing of this matter and I'm sure their counsel would be concerned if I were sitting here.
MR. BURGESS: All right.
MADAME CHAIR: But thank you. I take it as a compliment. So that's it. I'm going to impose the conditions as set out in policy 3, 2008 which were recited by your colleague, by the Administration. I'm sure you will bring those to the attention of Mr. MacDonald and thank you.
MR. VAN NIEJENHUIS: Thank you.
CERTIFIED CORRECT_______________________________
RAYMOND P. MACDONALD, B.A., CVR
Commissioner of Oaths