RULING NUMBER COM SB 002/2015

COMMISSION HEARING TORONTO, ONTARIO – FEBRUARY 4, 2015

NOTICE OF DECISION

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

AND IN THE MATTER OF THE APPEAL AND REQUEST FOR HEARING OF

SUE GANGELL

Sue Gangell, licence # F93432, appealed against the Deputy Director’s Ruling Number SB 1/2015 which denied her request for a stay of Ruling SB 45980.

Date of Hearing: February 4, 2015

ORC Panel: Commissioner John W. Macdonald

Counsel for the Appellant: Robert Burgess, Q.C.

Counsel for the Administration: Angela Holland

Decision: The Panel allowed the appeal.

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

DATED at Toronto this 12^th^ day of February 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 SUE GANGELL:

Held Before:

John Macdonald Chairman

These are an excerpt of the proceedings in the above mentioned matter held before The Ontario Racing Commission, Re: SUE GANGELL, taken before Toronto Court Reporters, Suite 1410, 65 Queen Street West, Toronto, Ontario, at 10 Carlson Court, Suite 400, Toronto, Ontario, on the 4th day of February, 2015.

Appearances:

Angela Holland

for the Ontario Racing Commission Administration

Robert Burgess, Q.C.

for the appellant Sue Gangell

Hearing continued ...

MR. CHAIRMAN: Thank you. You may be seated. I will be very blunt. I have a problem with this since we have an appellant that was under probation and that there were priors, the Class IV positive in 2012 as I recall and then the current one and where I run into difficulty; I still think the Czupa case is basically what we look at and that's mitigating factor. That's a big question here. The balance of convenience, well, maybe this does help the appellant because it is her livelihood and the difficulty the counsel has explained to me is they have a split sample, it hasn't come back and they are not willing to tell me how long. Nobody seems to know. It is difficult. We like to have these things expeditiously dealt with. I don't think this is a situation where, and we did discuss that briefly, trainers have been known in the past to delay having a hearing until it got to a point where it is convenient for them. That takes to the next one, the public interest is not such that you want a delay. I'd like to see these things dealt with and that's the problem we had recently with the case that just finished last week. It is somewhat frustrating for the panel to know what to do with these things. In addition to the Czupa case Cox and Cappucitti I threw in fairness and that's a broad statement but it applies to the Administration, what's fair to the Administration after they have done a lot of work and trying to do their job to spend and deal with and the judges have this thing that they are faced with, which is the absolute liability for trainers which is a concept that has been in for a number of years now. 2008 I believe and to get this thing on is difficult. The last thing, the biggest problem, is the most recent positive test is levamisole and this has been something we have been dealing with and trying to find out what's been going on and as we have already commented on. Levamisole was found to have metabolized in horses and become aminorex and aminorex we still don't know the source where that comes from except that it may be a lab concoction somewhere; it was fairly well known in Europe at one time, an amphetamine but levamisole is another one which I'm afraid I don't have the technical knowledge and we may end up getting veterinarians to help us on this and maybe the split sample will show us something. We don't do a quantitative test. It just shows that there is levamisole in the system. I'm going to come down here and I am going to grant a stay but it is going to be restricted and I don't know how this is going to work and grant a stay for four months and if by that time we should be able to have the split sample here, find out what it is and get on with the case if that is a substance that is found in the horse and creates a problem. It is a positive test and we can't get around that. I'm concerned here for a number of reasons because of the positive test aspects. Any comments, counsel?

MS. HOLLAND: Do the existing probation terms do they continue?

MR. CHAIRMAN: Yes, probation terms will continue. I'm sorry, I should have mentioned that and I don't think the appellant understood the seriousness of the probation because that gives the Administration the right to see whether the drugs are properly being looked at, at the training facility and at the track. It's my mistake for not making that clear because that should stay and of course if there is any further violation the stay will be lifted immediately.

MS. HOLLAND: What about if there is another medication in error like I guess the lesser violations? You know it has come up, the scratches or is that considered ‑‑

MR. CHAIRMAN: Well, medication in error that will be the judges' decision.

MS. HOLLAND: So the judges can use their discretion if they want to?

MR. CHAIRMAN: Yes, the judges have the experience in that.

MS. HOLLAND: Mr. Chair, a good point has been made. The judges haven't actually had their hearing yet so four months is pretty soon. Not only are we waiting for the split sample but there has to be a judges hearing first and my concern is, especially the fact since it involves levamisole, it might turn into a battle of the experts.

MR. CHAIRMAN: When you say there is no judges hearing, I thought they had already made a ruling?

MR. MCKINNEY: No.

MS. HOLLAND: Perhaps it would be easier if you could ...

MR. MCKINNEY: Do you want me to speak?

MR. CHAIRMAN: Yes. I don't think counsel will have any objection to that.

MR. MCKINNEY: Here is the process. A positive test was identified. She was immediately suspended as a result of the positive test pending a hearing I believe and investigation. So now it is still in the judges' hands so it has to go back to the judges. The judges will then make a ruling based on the evidence and then she will have the right, depending on what the outcome is, to appeal that or not. So four months, is that before the judges - she has got to have her judges hearing within the next four months?

MR. CHAIRMAN: The senior judges report indefinitely suspended her.

MR. MCKINNEY: Right.

MR. CHAIRMAN: Pending the completion of the hearing into the levamisole positive. So that is what you are talking about?

MR. MCKINNEY: Correct.

MR. CHAIRMAN: That they would have that.

MR. MCKINNEY: Right so they still have to have their hearing in relation to the Class II positive test in relation to levamisole. So the split sample, and I'm speculating here, the split sample I assume has been sent in.

MR. BURGESS: It is all sent.

MR. MCKINNEY: It is sent in so you should be getting the results shortly.

MR. BURGESS: Correct.

MR. MCKINNEY: Right so then all that information will have to go to the judges. The judges will make their determination and then based on that determination pending what the outcome is she will certainly have the right to appeal if it doesn't go in her favour and that's when it would come back here. So do you want this whole process completed within four months?

MR. CHAIRMAN: Well, my feeling is that the stay would be removed if that process is not done.

MR. MCKINNEY: Certainly we will expedite things by having that four month window. So that you want a judges hearing within that time because here is what happens, right? If there could be delays in testing, delays in scheduling, delays in all those types of things, right? So basically the way I'm understanding you are putting us on notice, along with the defence, that this has to occur within four months or her ‑‑

MR. CHAIRMAN: Stay is rescinded.

MR. MCKINNEY: ‑‑ whole process has to occur within four months because the process would be is that if the judges have their hearing in the next four months, right? If they find her guilty then they would issue a penalty. Probably that penalty would probably result in a suspension. If in fact there is a suspension then now she will have the right to request a stay in relation to that suspension so we could end up back here, right? So that could all occur within four months.

MR. CHAIRMAN: That's what I'm hoping for.

MR. MCKINNEY: Right, so I think what we are saying here is that the judges need to or Ms. Gangell needs to have her hearing with the judges within the next four months. If that doesn't occur then her stay is lifted and she is automatically suspended pending her hearing with the judges. Is that how I interpret it?

MR. CHAIRMAN: Well ...

MR. BURGESS: That's right. I mean I think this is an equitable way of settling this. I mean this lady would I think ultimately; I don't know what happened exactly in the Sheppard case but he went through all of this. He got off at the end. I don't know what the penalties or what you had but it did come to an end. I mean it didn't go on forever and ever and if you leave it at four months and we don't get back to you in four months I think then our problem is we have got to come back here and ask for an extension of the four months which is costing her money and putting pressure on her but you want pressure on her too.

MR. MCKINNEY: Well, what we want is process, right?

MR. BURGESS: Yes, that's correct.

MR. MCKINNEY: It's all about process, right? And there is a distinct difference between the Sheppard case and Ms. Gangell. Mr. Sheppard went through the process of the judges hearing, right? He was automatically suspended when the aminorex positive come in, and I'm speculating here, right? He was automatically suspended when the aminorex positive came in. The judges, I believe, there was the process of him requesting stays to continue prior to his judges hearing. He had his judges hearing, a penalty was issued. He now again has the right to ask for a stay. I'm not sure what occurred there but then he had his hearing before the Commission. Ms. Gangell is in the process of she is still in the judges realm. In other words she is still in that early process. So the way I understand it is she is going to get a stay for four months and it could be twofold here. She has to have this all completed within four months. In other words, has to have her judges hearing and come before the Commission within four months or does she just have to have her judges hearing within the four months. It depends on the amount of pressure, right? You want to put on the appellant, right? Because the system has to work its way through so I think it is reasonable probably to have a judges hearing within four months and depending on how soon that it then you could have a hearing with the Commission within four months.

MR. BURGESS: Yes.

MR. CHAIRMAN: The judges hearing is what is expected because if they decide that she is suspended, for example ‑‑

MR. MCKINNEY: Then she will certainly have due process there, right? At which time she can ask again for a stay to continue to participate while she goes on to the next level at the Commission hearing.

MR. CHAIRMAN: If a stay is granted at that phase.

MR. MCKINNEY: If a stay is granted, right.

(DISCUSSION OFF THE RECORD)

CERTIFIED CORRECT:_________________________________

RAYMOND P. MACDONALD, B.A., CVR

Commissioner of Oaths