AMENDED RULING NUMBER COM TB 013/2015

COMMISSION HEARING TORONTO, ONTARIO – SEPTEMBER 29, 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 A HEARING BY

PASQUALE PARENTE

Pasquale Parent, Licence # 117036, appealed Ruling Number TB ADMIN 28/2015 wherein his request for a stay of Ruling 9425/2015 was denied by the Deputy Director.

Date of Hearing: September 29, 2015

ORC Panel: John W. Macdonald, Commissioner

Counsel for the Appellant: Dan McMahon

Counsel for the Administration: Luisa Ritacca and Carlo Di Carlo

Decision:

The Panel allowed a stay of 120 days with conditions.

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

DATED at Toronto this 5^th day of October 2015.

Jean Major

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 PASQUALE PARENTE:

Held Before:

John Macdonald Chairman

These are an excerpt of the proceedings in the above mentioned matter held before The Ontario Racing Commission, Re: PASQUALE PARENTE, taken before Toronto Court Reporters, Suite 1410, 65 Queen Street West, Toronto, Ontario, at 10 Carlson Court, Suite 400, Toronto, Ontario, on the 29th day of September, 2015.

Appearances:

Luisa Ritacca &

Carlo Di Carlo,

for the Ontario Racing Commission Administration

Dan McMahon for the appellant

Hearing continued ...

MR. CHAIRMAN: All rise. Please be seated. I had some difficulty trying to decide what to do here. Obviously we have precedent to some extent and that is the Czupa case which Chairman Seiling had set out some which are effectively guidelines. We don't have to follow them all. We do have a fair amount of discretion in the panel but we do try to give some credence to what has happened before and try to follow it as best we can and I know that no matter what I do this is not likely going to be the end of this because you will have presumably a decision somewhere where you get to the point of deciding the full case on the merits. We start off with the three items, the serious mitigating factor. As we have had before there is a question of possible chain of custody, whether that proves a fruitful fact to follow or not will be up to counsel and the evidence that is presented. We do have absolute liability which is still a part of our rules and we have the onus on the appellant and we have the trainer responsibility. The item counsel mentioned of due diligence that really only goes, as far as I'm concerned, to the penalty phase if it gets to that stage. I am mindful that we have a split sample test which showed a small amount of, as we discussed here just possibly a trace item. There was no evidence on this being a performance enhancing amount and really no evidence on what the effect of either drug found, the levamisole or the pemoline, on the horse's ability to perform better because of that. I am possibly persuaded by Mr. Parente doing what I think most trainers would do when you have a problem that can't be solved easily, you try your vet and do what he suggests until you get to the point where the problem is resolved or you have to send the horse to Guelph or something if it is that serious. Now that's not here and Mr. Parente did rely on the veterinarian here. It turned out somewhat to his prejudice because there are no specific guidelines as I understand all the evidence for the withdrawal time. The indications were that 96 hours should be sufficient. It might be longer and inspector Grant found the records were as accurate as they could be and the indications were that they had used 120 hours. He had one prior positive test but again that was vet related and it doesn't go to what happens here. I find that there is enough of a mitigating factor that that part of the test has been met. The balance of convenience was the next one and the state of the industry is such that notwithstanding counsel's argument that this horse might be replacing some other horse my understanding is that we have too many small fields as it is and it would be nice to have more. So while it has been stated a few times that the loss of income is not in itself a compelling reason when balanced against the potential harm to racing in general I don't see any harm to racing in general here and while it is not the total determining factor I'm also mindful that both the appellant and his staff effectively have employment problems during the time that he is suspended and so far that has been about 24 days as I understand what counsel has said. The next one was the public interest and Mr. Grant was very positive on that when he said that he had no doubt that what Mr. Parente said was what happened and that is relying on the vet and coming up with a positive test that caused him to be shocked when he found that out. We don't have in this province a quantifying test. If you find that there is a prohibited substance that's an offence and it is not my decision to change that but those are the current rules. So it is qualitative not quantitative. I am persuaded though that Mr. Vella was very positive when he said as the representative of the Horsemen's Benevolent Protection Association that he did not find that what happened here was in any way detrimental to racing. I'm also assuming because that this is not a common drug that has been used for enhancing. We have had a number of problems with levamisole in the past where it metabolized into aminorex and a number of trainers were subject to the positive test that results from that. All those were settled about five years ago. We still have a problem with trying to find out where aminorex comes from. As some of you may know the Sheppard case counsel referred to is one that I had a great deal of difficulty with trying to determine where it came from. None of the veterinarians seemed to know where it came from. It's common in Europe as I understand it at one time but not here. The question of the public interest again the Czupa case makes it clear that licensees need to be assured that the alleged acts will not be tolerated and that there is a meaningful deterrent at play. The deterrent here is obviously already relevant to the appellant as he certainly, in his evidence, he won't use or allow a veterinarian to give that same drug to anybody else and the publication of this hearing will indicate to the other members of the racing industry that levamisole has an effect that while not yet determined is something that could end up producing a positive test. We have had that particular substance in other occasions where it related back to a sheep wormer. Mr. Parente was very clear with me that his worming was done at least a month before and certainly would not have contained any product of this nature. I am also persuaded that following the Cox and other cases that it should be a fair and reasonable process and I know that former Vice Chair indicated that while the law is to be correct the discretion must be reasonable and I think it is a case where I'm persuaded with all of these in the due process practice but I'm also mindful that this case has gone on for over a year. No explanation as to why the delay but in my view there should be some discretion given to the appellant and I'm going to order a stay but it is going to be conditional on effectively 120 days. We will take it to the exact date of January 31, 2016. He has already suffered a loss of 24 days as I recall and the horse wasn't allowed to race for the 90 days under the rules but the other condition on this is going to be the fact that if there is any other offence during the period of the stay that the stay will be rescinded. In addition, we will put in the three first conditions in Policy number 3.2008. Off the record.

(DISCUSSION OFF THE RECORD)

MR. CHAIRMAN: If you look at tab 12 of Exhibit 4 it is in paragraph 24 of the end of that case involving Kelly Sheppard and counsel can blame me. I wrote the decision on that one too. I eliminated the first item which is the normal one, peace, order and good governance. I didn't worry about that too much but, and Mr. Parente has already allowed that, investigators access to his stabling area and allow investigators to seize any illegal or non therapeutic drugs and the third one is to be subject to out of competition testing and that is during the period of the stay. Gentlemen, anything further?

MR. MCMAHON: It's concluded. I wonder if I could prevail upon you to allow me to speak with my friend very briefly with a view of possibly addressing you again subject to his comments.

MR. CHAIRMAN: I'm sorry, to address?

MR. MCMAHON: I wanted to ask something of you but only after I have had the opportunity to speak with my friend and I won't require long.

MR. CHAIRMAN: Thank you.

(DISCUSSION OFF THE RECORD)

MR. MCMAHON: Thank you, sir. I don't think any purpose would be achieved to make any other requests but I can indicate to you, sir, that this is the type of matter for the reasons as part of your reasons already that taking into account we are dealing with events that took place in December 2014 a benefit might be achieved if my friend and I at some future date or whoever is looking after it sit down and have a prehearing with respect to the matter with a view of seeing if there is any sort of meeting of the minds and I would welcome that opportunity and I will pursue that opportunity through the Commission Administration and hopefully in accordance with the rules I will be able to have that with a view of trying to bring some finality to the matter.

MR. CHAIRMAN: Thank you. Any comments, counsel?

MR. DI CARLO: I have nothing to add. Thank you.

MR. MCMAHON: Thank you, sir. Can I just inquire; I appreciate your order is now but with nothing in writing yet but is he allowed to go back to Woodbine at this moment? I mean the order has been made. It should speak from the time it is made not from the time that we get around to typing it.

MR. CHAIRMAN: It would be effectively at the end of the day. It's a question of when it would come out and that's not within my control as far as the actual decision but hopefully it will be done as soon as I relay the information to the Administration.

MR. MCMAHON: Okay, thank you, sir.

MR. CHAIRMAN: Thank you, gentlemen.

CERTIFIED CORRECT:_______________________________

RAYMOND P. MACDONALD, B.A., CVR

Commissioner of Oaths