RULING NUMBER COM SB 021/2015
COMMISSION HEARING TORONTO, ONTARIO – SEPTEMBER 22, 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 BY SHANNON HENRY
Shannon Henry, Licence # V04571, appealed Ruling Number SB 59/2015 wherein her request for a stay of Ruling SB 46541 was denied by the Deputy Director.
Date of Hearing: September 22, 2015
ORC Panel: John W. Macdonald, Commissioner
Counsel for the Appellant: Robert Burgess, Q.C.
Counsel for the Administration: Carlo Di Carlo
Decision:
The Panel denied the appeal.
A transcript with the Panel’s oral Reasons for Decision is attached to this Notice.
DATED at Toronto this 5th day of October 2015.
Jean Major 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 SHANNON HENRY:
Held Before:
John Macdonald, Commission Panel Chair
These are an excerpt of the proceedings in the above mentioned matter held before The Ontario Racing Commission, Re: SHANNON HENRY, taken before Toronto Court Reporters, Suite 1410, 65 Queen Street West, Toronto, Ontario, at 10 Carlson Court, Suite 400, Toronto, Ontario, on the 22nd day of September, 2015.
Appearances:
Carlo Di Carlo for the Ontario Racing Commission Administration
Robert Burgess, Q.C. for the licensee Henry
Hearing commenced ...
MR. CHAIRMAN: Please be seated. This is an application for a stay relating to the 90 day suspension rule of the horse trained by Shannon Henry that had a positive test on September 6th of this year at Flamboro, the horse being UNITED BI, and that's B-I. If we look at the provisions that the Racing Commission determined on October 30, 2007 for stay directives and the granting of a stay it is pretty simple in the sense that the granting of a stay has to be in the best interests of racing. Then we go to determinations as to what happened here. The Director or the Deputy Director, sorry, denied the application for a stay and counsel for the Administration is quite correct when he said the onus is on the appellant and that requires extraordinary circumstances which are to be demonstrated by cogent and compelling evidence. The first case noted that dealt with stays was the Czupa case where Chair Seiling set out three tests for the stay and that's serious mitigating factor, the balance of convenience and where that lies and where is the public interest and since then the Cox case added in a further factor that overall, using the discretion, question of fairness. I don't find here that there was a serious mitigating factor. The balance of convenience is a toss-up, as basically is the public interest in some respects. However, there was no evidence today on the effect of the antihistamine, either; the powder form which the witness indicated did not have the desired help for the horse. The evidence would have been helpful if we had known if there was any factor that would play when there is an accumulation of powder. We don't know how much powder was given over what period of time and how often. We do have evidence though that there was an injectable liquid that was given and the indications are that this was 10 cc's. Now this was done by the trainer and not by the veterinarian and while she may have a lot of experience of knowing just how much to inject we don't know whether the amount was actually 10 cc's or even more for that matter. The veterinarians apparently did give the trainer advice as to the time period that had to be carefully looked at when giving this injection and the evidence is that it was either 48 hours or 57 or even 52 but in either case or any of those cases she exceeded the time guidelines. Unfortunately there was no evidence about what the actually guidelines should be and counsel for the appellant mentioned the MacDonald Grossenbacher case recently decided but there is a distinction there. That was a case where the veterinarians gave or a veterinarian gave the injection and the other veterinarians, both I recall; there was one that wasn't here and two who were here and they both said that the time guidelines that they followed were exact and they found them to be in once case exemplary and the other one it was exactly what they have done. So there were three veterinarians that testified live that that's the procedure they would have followed. So I can distinguish this case from that one. It may be a heavy onus on the appellant to have a veterinarian available to do this but when there is a major race on the line then the precautions have to be taken by the trainer and she has to be cognizant of what may happen, check the guidelines herself. We can't all expect to know everything that is in the booklet for the drugs and the time lines but when there is enough at stake you make sure the veterinarians give you the proper advice and if necessary you have them do the injections. The question of the fairness principle which was thrown in there is no evidence here from any veterinarian as to whether the injection was exactly what should have been done. The trainer indicated that the horse had been suffering for some time which is all the more reason why she should have been very cautious as to what had to be done for the best interests of the horse. In summation, I am going to deny the request for a stay. Lastly, and this is strictly obiter, the 90 day rule as it is known may be somewhat unfair in today's age. There was a reason for it being implemented to start with and it may be that that should be changed but that's not the responsibility of this panel. That is the Commission itself will make that determination in due course if they decide to do it. Thank you. Any questions?
MR. DI CARLO: No, Commissioner Macdonald, not for the Administration.
MR. CHAIRMAN: Thank you.
CERTIFIED CORRECT ________________________________
RAYMOND P. MACDONALD, B.A., CVR Commissioner of Oaths