Notice of Decision
RULING NUMBER: COM SB 003/2015
COMMISSION HEARING: TORONTO, ONTARIO – MARCH 3, 2015
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 KEITH CASSELL
Keith Cassell, Owner, appealed against Ruling Number SB 46343 wherein the horse PLANS OVER was suspended for 90 days for violation of Rules 11.10.01(4) and 20.01.01(i) 4) of the Rules of Standardbred Racing.
Date of Hearing: March 3, 2015
ORC Panel: Sandra Meyrick, Commissioner
Representative for the Appellant: Brian Tropea, General Manager, Ontario Harness Horse Association
Counsel for the Administration: Catalin Tripon
Decision:
The Panel denied the appeal but varied the suspension to 45 days.
A transcript with the Panel’s oral Reasons for Decision is attached to this Notice.
DATED at Toronto this 4th day of March 2015.
Steven Lehman Executive Director ONTARIO RACING COMMISSION
STANDARDBRED HEARING
IN THE MATTER OF AN APPEAL AND REQUEST FOR HEARING OF KEITH CASSELL,
Held Before: Sandra Meyrick, Chairman
These are an excerpt of the proceedings in the above mentioned matter held before The Ontario Racing Commission, Re: KEITH CASSELL, taken before Toronto Court Reporters, Suite 1410, 65 Queen Street West, Toronto, Ontario, at 10 Carlson Court, Suite 400, Toronto, Ontario, on the 3rd day of March, 2015.
Appearances: Catalin Tripon, for the Ontario Racing Commission Administration Brian Tropea, agent for the appellant Keith Cassell
Hearing continued ...
MADAME CHAIR: So the decision today is as follows. This is an appeal of SB ruling 46343 where PLANS OVER has been suspended or the horse PLANS OVER has been suspended from racing for a period of 90 days from January 29th to April 28th, 2015, inclusive. The suspension arises from a finding of a high TCO2 reading on January 22nd, 2015 at Flamboro Downs. The ruling has had a domino effect on the owner of PLANS OVER Mr. Keith Cassell as the trainer at the time Mr. Victor Puddy was under probation with the ORC. With a TCO2 infraction came a suspension of his licence which effectively resulted in at least seven of Mr. Cassell's horses being scratched in future races. Mr. Cassell was unable to race the other horses until early February 2015 losing considerable financial opportunity. In the meantime Mr. Puddy who trained the horse PLANS OVER was suspended from training, the suspension reduced to 45 days after a panel of the ORC hearing.
MR. TROPEA: Excuse me, that was at the judges level. It wasn't a panel.
MADAME CHAIR: Okay, thank you.
MR. TROPEA: You're welcome.
MADAME CHAIR: I misunderstood that. At the judges level then. The cause for the high TCO2 level is uncertain but no finding has been made. The Commission was directed to a variety of material, including scientific literature and case law. In particular, the Administration asks the panel to consider the four tests that an appellant must meet in order to vary the penalty occasioned by the Rules of Standardbred Racing, extraordinary circumstances, balance of convenience, public interest and fairness. The Commission has heard evidence from Judge Larry Hughes who described both Mr. Puddy and Mr. Cassell as professional and cooperative. Mr. Hughes testified that once the positive test was found the 90 day suspension automatically applied without discretion on the part of the judges. He confirms that the source of the TCO2 was not identified. The Racing Commission Act mandates the ORC to exercise its powers in the public interest and in the best interests of racing. The Rules of Standardbred Racing particularly at Section 11 find it an absolute liability offence the positive testing of a horse for a Class 3 drug as the TCO2 found in PLANS OVER. The Commission has found exceptions to this penalty imposed in particular when fairness is considered. The evidence here is that Puddy is an experienced trainer with more than 12,000 starts. Cassell is an experienced owner and one very involved in horse racing in Ontario. There has been no conclusive finding for the TCO2 positive test yet, yet the horse has been suspended for longer than the responsible trainer and the owner has been penalized considerably more than is contemplated by this rule. As a consequence I will fix the period of suspension at 45 days from January 29th and find that PLANS OVER is ineligible to race for a period of 45 days January 29th to March 14th, 2015. Anything further?
MR. TRIPON: Any conditions applicable to that?
MADAME CHAIR: I have not posted any. Do you have any conditions?
MR. TRIPON: I think the usual conditions to be of good behaviour and not being found ‑‑
MADAME CHAIR: No further positive tests.
MR. TRIPON: Yes.
MADAME CHAIR: Are you content with those usual conditions being imposed?
MR. TROPEA: I struggle a little bit with putting conditions in regards to future positive tests on an owner. Are we suggesting that the owner, if one of his horses test positive then there would be additional penalties?
MADAME CHAIR: Well, there would be anyway wouldn't there?
MR. TROPEA: Exactly.
MADAME CHAIR: Wouldn't they arise from the legislation?
MR. TROPEA: So I don't understand the need for the conditions.
MADAME CHAIR: Well, I suppose if there is a breach of condition this would go back to the 90 days in any event and perhaps you can help me, Mr. Tripon?
MR. TRIPON: Well, as I have seen in the MacDonald case the conditions that were imposed ‑‑
MADAME CHAIR: Were not on an owner though, right? They weren't on an owner. They were on a trainer.
MR. TRIPON: May I consult?
MADAME CHAIR: Sure.
MR. TROPEA: You will make that change?
MADAME CHAIR: Yes. I misunderstood that from your evidence.
MR. TRIPON: We will leave that and let the panel decide whether any conditions will be imposed, Madame Chair.
MADAME CHAIR: I think, Mr. Tripon, it is awkward to impose conditions under these circumstances. I understand what your client is asking and certainly in other cases where there is a stay and the stay would then be lifted if in fact conditions were broken etcetera it is a different sort of thing but here I think if there was an infraction the rules would apply in any event and the time would be imposed once again and we would be back in a process similar to this. So I'm not going to impose any conditions at this point but I do just want to amend my reasons though to say that the 45 days of suspension of Mr. Puddy was made by the judges as opposed to by an ORC hearing. Is that satisfactory? Okay, thank you very much.
MR. TROPEA: Thank you.
CERTIFIED CORRECT_______________________________
RAYMOND P. MACDONALD, B.A., CVR Commissioner of Oaths