RULING NUMBER COM SB 026/2015

COMMISSION HEARING TORONTO, ONTARIO – SEPTEMBER 11, 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 STAY OF GERALD LILLEY

Date of Hearing: September 11, 2015

ORC Panel: John W. Macdonald, Commissioner

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

Counsel for the Administration: Luisa Ritacca

Decision:

The Panel allowed the appeal and granted a stay of 60 days.

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

DATED at Toronto this 26th day of November 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 GERALD K. LILLEY:

Held Before:

John Macdonald Commissioner

These are an excerpt of the proceedings in the above mentioned matter held before The Ontario Racing Commission, Re: GERALD K. LILLEY, taken before Toronto Court Reporters, Suite 1410, 65 Queen Street West, Toronto, Ontario, at 10 Carlson Court, Suite 400, Toronto, Ontario, on the 11th day of September, 2015.

Appearances:

Luisa Ritacca, for the Ontario Racing Commission Administration

Robert Burgess Q.C., for the licensee

Hearing continued ...

MR. CHAIRMAN: All rise please. Thank you. You may be seated. I have tried to carefully listen to everything that was said this morning. The case does give me some difficulties. The first thing and I guess it is a little trite to note but the Commission and that was October 30, 2007 and that’s in the tab 1 of Exhibit 1 where overall it is what’s in the best interests of racing before you grant any stay. The offence here is 11.10.01 where the ruling was 90 day suspension of the horse involved because of a positive test. We have been given information as to the origin of the rule and counsel has indicated that maybe the rule is out of date but that’s not something that we can change here. That’s the rule. I will say it is something new, this minoxidil. I didn’t know anything about it and we are learning something this morning. The evidence of Mr. Wilson was that this is the first case that was known to him with this particular drug. The evidence of Mr. Lilley was that after speaking to his veterinarian the veterinarian was not familiar with it and from there on we don’t know the effect of this drug. It is vasodilator it was indicated in some of the material but we don’t know about any elimination time. We are not sure how it is supposed to be taken. I assume it could be topically, it could be orally but what is the effect of it. That’s something we are going to have to find out later. We know it is a class 3 drug and therefore is an offence under the rule that I just mentioned and it goes to 90 days for the horse. There is no indication as yet as to what the investigation will determine and I gather that is currently on going. That may be a different matter. Counsel pointed out quite correctly that there is a prima facie case that has been made because the test was there. The results of the test are there. That hasn’t been challenged. It may be challenged at a subsequent hearing but that’s a different matter. The basic test as laid out by Chairman Seiling to start with for granting a stay and I must emphasize first of all though that this is not a final decision. There is a prima facie case was in the first part of the test is serious mitigation. As I said, it is not known the effect of the drug on the horse but we know for mitigation purposes there is an issue to try and that is going to come later on. The Fellow’s case which is in Exhibit 6 in paragraph 23 as pointed out by counsel about extraordinary circumstances but the only thing extraordinary here is something that we don’t know anything about but it does state at paragraph 23 that “it would be wrong for this panel to act before due process” and then it goes on. We haven’t had a full determination here as yet. We know that there is an effect on the owners and the trainer and it is difficult for the owners to be stuck with not being able to race for a period of time. The next test was the balance of convenience. This is not a delay case as some of them have been in the past where trainers will arrange to have the stay granted so that they can continue to race until it is the appropriate time for the horse to go out to pasture for a while or the trainer to go to Florida. Until the investigation is done we can’t account as to what will happen. I look at the public interest here which is the next test. We have here a filly that has recently won and obviously there would have been normal test for a winner and from what we have heard today there is no indication that there has been any positive or negative test or any other test because there has been no actual evidence but normally the winner is tested in a race and that would have shown up by now. Mr. Lilley indicated that that purse money had been paid for at least one of the races which this filly won. I go on to the additional test of fairness and I have to be mindful that the industry has been in a turmoil for a while and we want to keep the business going as much as we can within the limited powers we have and the fairness part I’m pleased that the trainer involved has a clean record as far as the horses go that he trains and I’m mindful of the Fellow’s case where the comment was there is still the overriding principle of deterrence. With a drug that is not known as to being used or what effect it has, penalizing someone until we have the full investigation would not really be a deterrence. Yes, it is a regulated industry and I’m mindful of that and the rule was put in for a very good reason but I feel that in these circumstances with an unknown drug, a trainer who has a clean record and the fact that we don’t know what the effect of this drug is directly if any. There has been no veterinarian evidence today so that probably would have helped us. I am going to grant a stay and I’m going to make it for 60 days. Subject to any comments counsel may have I’m thinking that the 60 days should in most cases allow the investigation to be completed, the judges to make a decision as to what they feel if any they should do as far as suspending or fining the trainer and to deal with the horse and this particular drug. Does counsel have any comments? Let’s start first of all with the time, the 60 days.

MS. RITACCA: Sorry, I was just conferring with Mr. Wilson. We don’t have any trouble with the 60 day period but just to be clear it is not contingent. There is not a requirement that the investigation be completed. As I understood your comment it is your expectation or hope that it be but it is not that it is contingent on it. If the 60 days are expired and the investigation is still on going well that’s so be it and I suppose they will have to ask for an extension.

MR. CHAIRMAN: Thank you. I’m not going to suggest that that is a requirement. It is just a 60 day time to try and sort this out. It may be, and I hate to say it, we might have to reconvene to carry on for a different purpose.

MS. RITACCA: That’s fine. So other than that we have no other comment.

MR. BURGESS: That’s excellent. We had the case with Mr. McKinnon here and it was 40 days he gave and it is unconditional just as we quite understand this is unconditional. It doesn’t depend upon when Mr. Barrett completes his test and going back it is interesting talking about this with respect to the one with Fellows. Of course in that case the distinction was they weren’t sure what it was at the time we had the hearing and the investigation was completed two days after and of course they missed the opening day entry in the box. The dates were all wrong and as soon as that happened the thing was discharged. So thank you very much.

MR. CHAIRMAN: Thank you counsel.

CERTIFIED CORRECT:_________________________________

RAYMOND P. MACDONALD, B.A., CVR

Commissioner of Oaths