RULING NUMBER COM QH 002/2015

COMMISSION HEARING TORONTO, ONTARIO – OCTOBER 5, 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

NORMAN LLOYD DE SOUZA

Norman Lloyd De Souza, licence # 122353, appealed Ruling Number QH ADMIN 6/2015.

Date of Hearing: October 5, 2015

ORC Panel: Anthony Williams, Vice Chair

Representative for the Appellant: Self-represented

Counsel for the Administration: Brendan Van Niejenhuis

Decision:

Upon the recommendation of Counsel for the Administration, with the consent of the Appellant,

IT IS ORDERED AS FOLLOWS:

(i) the Appellant will enter into a Restorative Justice Program, upon the conditions set out in the Factum (Ex. 1, p.2, para 2 (a) (i) to (iv) inclusive and (b));

(ii) the Appellant will pay a fine of $1,000 within 30 days;

(iii) the licence of the Appellant, as a Quarter Horse Jockey and Exercise Person, will be reinstated, conditional upon his continued compliance with the Restorative Justice Program.

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

DATED at Toronto this 22^nd 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 NORMAN LLOYD DE SOUZA:

Held Before:

Anthony Williams Vice Chair

These are an excerpt of the proceedings in the above mentioned matter held before The Ontario Racing Commission, Re: NORMAN LLOYD DE SOUZA, taken before Toronto Court Reporters, Suite 1410, 65 Queen Street West, Toronto, Ontario, at 10 Carlson Court, Suite 400, Toronto, Ontario, on the 5th day of October, 2015.

Appearances:

Brendan Van Niejenhuis,

for the Ontario Racing Commission Administration

Hearing continued ...

MR. CHAIRMAN: I am sitting on this perch as the one member panel of the Ontario Racing Commission. A proposal has been made to me by Mr. Van Niejenhuis as counsel for the Administration of the Ontario Racing Commission and the proposal is set out in our Exhibit number 1 the factum, page 2, paragraph 2 subparagraph (a) and then (i), (ii), (iii), (iv) and (v) and then subparagraph(e) and what we are struggling with is, a ruling is going to be required from me at some stage in this proceeding to put this proposed pilot version of the restorative justice project into place and I was seeking the guidance of Mr. Van Niejenhuis as to what, from his perspective, would be the best way to do it and what he has proposed, again, from my point of view, as to how to deal with it is eminently reasonable. I would start with a ruling introducing the parties and then go through this material. You will have an opportunity if you wish to make submissions as to whether this is appropriate but I’m prepared to agree to what has been proposed by Mr. Van Niejenhuis on behalf of the Administration and what you have agreed to.

MR. DE SOUZA: That’s fair.

MR. CHAIRMAN: Is that understandable? Thank you. This is a ruling in relation to the matter of the Ontario Racing Commission and Norman Lloyd De Souza. Mr. Da Souza has suffered three positive tests for marijuana. The first on July 10, 2012 at Ajax Downs was a random test of saliva which resulted in a positive test, a $500.00 fine, fifteen day suspension and a post violation agreement. The second positive test for marijuana was a follow up test for saliva on September 23^rd, 2012. The third positive test for marijuana was a follow up test. The substance was urine from September 10, 2015. That positive test resulted in an amended quarter horse ruling QH 006/2014 on September 24^th, 2015 leading to an immediate suspension of the licence of Mr. De Souza, a fine of $1,000.00 and a referral to the Commission. This hearing under the legislation under section 38.08(g) is for the sole purpose of determining the future status of the licensee Norman Lloyd De Souza which may include a life time ban from the sport and industry of racing or other specific conditions. The Administration is represented by Mr. Brendan Van Niejenhuis as counsel. Mr. Norman Lloyd De Souza is present in person. He is self-represented. A proposal has been made which is set out in Exhibit number 1, page 2, paragraph 2 as to an alternative approach that might be taken referred to as a pilot version of a restorative justice approach. From my perspective this is an enlightened approach, a progressive approach and in my opinion it is in the best interests of racing. The licensee was a quarter horse jockey and exercise person license number 122353 is ordered with his consent and agreement to enter into a pilot version of what is referred to as the restorative justice approach to issues related to addiction to be managed by the Deputy Director. The specific terms of the pilot restorative justice model are as follows: number 1) Mr. De Souza will authorize the Deputy Director to communicate about his violation and violation history with potentially affected members of the industry for the purpose of gathering insight into the impact of Mr. De Souza’s conduct on other participants. Number 2) together with Mr. De Souza those participants willing to participate in the restorative justice project are expected to provide their input on appropriate consequences for his current positive test to the Deputy Director in an open process allowing for direct communication by all participants. Number 3) the Deputy Director will propose a penalty or other remedies to the participants and seek consensus from all parties. The Commission will delegate to the Deputy Director the authority to make a ruling in that regard under rule 38.08(c)(ii) of the rules of thoroughbred racing and to create specific conditions for a further PVA, post violation agreement, as may be required. Number 4) the Deputy Director will be required to notify the Commission through the Chair of the presiding panel; in this case the name is Anthony Williams and I am the Vice Chair of the Ontario Racing Commission and have the pleasure of being the one person panel today, of the outcome of the restorative justice approach. If the Commission believes that the outcome is not in accordance with the public interest the Commission reserves the power to require Mr. De Souza to appear before it and impose a different penalty after hearing submissions from the Administration and from Mr. De Souza. Part 5) Mr. De Souza will agree that no liability or claim would be asserted against any participant for their participation in the restorative justice process. Part B) alternatively if Mr. De Souza does not agree to the pilot restorative justice approach or the pilot restorative justice approach doesn’t proceed as anticipated the Administration it is expected will ask the Commission to impose a fine and suspension in accordance with rule 38.06 and policy directive 1-2011 as well as confirming that the stay of the outstanding $1,000.00 fine is terminated and the said fine will become payable. That is the proposal. That will be the ruling unless there are further additions or alterations or deletions requested.

MR. VAN NIEJENHUIS: I don’t believe so. Perhaps the ruling should simply note that Mr. De Souza’s licence is reinstated so that the process can be brought underway and that that reinstatement of course is subject to Mr. De Souza’s cooperation on a prompt basis with the requirements of the program.

MR. CHAIRMAN: Amended quarter horse ruling QH 006/2015 resulted in the immediate suspension of the licence of Mr. De Souza pending referral to the Commission. The suspension of the licence is set aside. Mr. De Souza is restored to his original licence status as a quarter horse jockey and exercise person licence number 122353 on the understanding that he will continue to comply with the proposed restorative justice approach that has been canvassed in exquisite detail. Is there a time period that would be requested in connection to the restorative justice approach or is that necessary?

MR. VAN NIEJENHUIS: I think I am going to ask that you leave it in our hands as between the Deputy Director and Mr. De Souza. If there are issues with that a hearing will be reconvened. In the future should this model be adopted again I think it will make sense to start adopting a time frame for it but sitting here today I’m a little bit in the hands of the Deputy Director in terms of his time frames and how long it may take to assemble the necessary participants.

MR. CHAIRMAN: Excellent. Thank you. The proceeding today had the potential to determine the future status of Mr. De Souza which may include a life time ban from the sport so that having an indefinite post violation agreement does not appear to violate any of the provisions of the chapter 38 Alcohol and Drug Offenses human in relation to the rules of thoroughbred racing. Mr. De Souza will know that because as an exercise person and jockey he occupies what is referred to in the documentation as a safety sensitive position that this legislation has put in place.

MR. VAN NIEJENHUIS: Just one more matter and Mr. De Souza has actually raised it before to me and that is that ruling QH ADMIN 6 of 2015; that’s the ruling from last week, imposed a $1,000.00 fine to be paid and that reflects the earlier stayed $1,000.00. So in other words Mr. De Souza because of this recent positive is formally required by this ruling to pay that $1,000.00 amount. Now we haven’t spoken to that yet and I thank Mr. De Souza for raising it. I’m going to propose that Mr. De Souza be required to pay that amount within 30 days as a part of the restorative justice process but that is subject to your views and Mr. De Souza’s submissions.

MR. CHAIRMAN: Yes, Mr. De Souza? Do you have anything you wish to say in relation to the proposal regarding the fine of $1,000.00?

MR. DE SOUZA: Well, if it is required for me to do that I will do that but I would like it if you gave me a stay of 30 days. I need time to go make that money because I haven’t been working for the last two weeks right now.

MR. CHAIRMAN: The difficulty perhaps that you encounter in this matter is reflected in the fact that this is your third marijuana positive and on May 24^th, 2014 when you entered into the post violation agreement there was a freeze or a stay of the $1,000.00 fine at that time. Because of the third violation on September 10^th, 2015 of marijuana positive there is a further fine of $1,000.00. It would appear appropriate in view of all of the circumstances that that fine be paid. Is the 30 days a reasonable time period for you within which to pay that fine?

MR. DE SOUZA: Yes, sir.

MR. CHAIRMAN: Thank you. Then the fine and thanks for raising that matter as well, the fine will be ordered to be paid within 30 days of today’s date.

MR. DE SOUZA: So prior today I could resume race riding next week or something like that?

MR. VAN NIEJENHUIS: I’ll speak to Mr. De Souza about the logistics after. He is asking me a question about bringing this into being but I will see to the recording of the reinstatement later today hopefully and where it takes from there we can discuss.

MR. CHAIRMAN: Excellent. Thanks very much, gentlemen.

CERTIFIED CORRECT:_________________________________

RAYMOND P. MACDONALD, B.A., CVR

Commissioner of Oaths