.. RULING NUMBER COM SB 009/2016

COMMISSION HEARING TORONTO, ONTARIO – MARCH 23, 2016

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

SUE MARIE GANGELL

Date of Hearing: March 23, 2016

ORC Panel: Elmer Buchanan, Chair

John W. Macdonald, Commissioner

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

Counsel for the Administration: Luisa Ritacca

Decision:

The Panel allowed the appeal in part and varied the penalty by reducing the fines to $1,500 with a full suspension until July 1^st of this year. Sue Marie Gangell will have the usual probation provisions for two years starting from the time that she renews her licence.

DATED at Toronto this 29^th day of March 2016.

______________________________

Jean Major

Executive Director

ONTARIO RACING COMMISSION

STANDARDBRED HEARING

IN THE MATTER OF THE APPEAL AND REQUEST FOR HEARING OF SUE MARIE GANGELL:

Held Before:

John Macdonald, Commissioner/Chair

Elmer Buchanan Chair (ORC)

These are an excerpt of the proceedings in the above mentioned matter held before The Ontario Racing Commission, Re: SUE MARIE GANGELL, taken before Toronto Court Reporters, Suite 1410, 65 Queen Street West, Toronto, Ontario, at 10 Carlson Court, Suite 400, Toronto, Ontario, on the 23rd day of March, 2016.

Appearances:

Luisa Ritacca,

for the Ontario Racing Commission Administration

Robert Burgess, Q.C., for appellant Gangell

Hearing continued ...

MR. BUCHANAN: I think we are going to try to do an oral decision and John is the man to deliver that.

MR. MACDONALD: Thank you. You are all aware that this is a trial de novo we have just gone through and we appreciate the fact that counsel have been gracious enough to accept the two person panel because of the difficulties we had today having the third member here. The Agreed Statement of Facts was helpful and it sets out, and I’ll mention three particular paragraphs here. Paragraph 2 references that at all relevant times Gangell was the trainer of the horse F TWENTY TWO, TINA’S WAR and ATTABOYAARON as part of her training stable and that she had been licensed as a trainer for the past 36 years and had also been a driver and it was also agreed that December 15^th of 2014 that the horse F TWENTY TWO had a urine sample taken which tested positive for Levamisole which is a Class 2 substance that is apparently commonly used to cut cocaine. Now she did make inquiries after that and subsequently on April 29^th, 2015 following a race at Flamboro one of her other horses ATTABOYAARON also had a urine sample taken and also came back positive for Levamisole and two other drugs Benzoylegonine and Methylecogonine and that was on May 9^th, 2015. Those later drugs apparently are metabolites of cocaine.

We find that there is no due diligence shown prior to the first positive test as counsel pointed out. We found that this trainer did not minimize the risks involved and was probably too lax from what we can see as to the stable, including allowing access by her husband to the barn and keeping in mind his licence history and not knowing, as she indicated, where he was at times and that it has since been discovered that he was having not just depression problems which she knew something about but had somehow fallen into the wrong hands and was using cocaine resulting in his being apprehended and charged with an offence related to cocaine. We don’t have to go into the defence of that. That’s not part of our responsibility but that’s something that unfortunately happened. We find that the trainer here Sue Gangell did not exercise the responsibility she should have relating to the horses or her stable and we note particularly when it came to the medicine in the medication cabinet that there was labelling missing on some of the drugs. She didn’t know what some of the drugs were that were in her care in the refrigerated unit and that there was no inventory of the drugs that were there.

We do find though that she did exercise due diligence but this was after the first positive and unfortunately for her in our view that is not good enough. It should have happened before that. Next it is acknowledged that the positive test for the drugs have been proven and we are subject to rules involving absolute liability for drugs that have resulted in positive tests. We also note that the appellant here in addition to the current violations had a history of previous violations. One of our concerns is that the appellant failed to allow investigators on her property when she was on probation which is something that she received a notice of penalty relating to that. It’s something that obviously we look askance about because it is part of the violation in the rules that happen when on probation and should be pretty aware of her responsibilities.

Now having said all this we had some difficulty deciding what the appropriate penalty is in the circumstances. We would hope that this particular appellant will arrange her affairs so that from now on the responsibilities will be properly looked after. The current fines will be considered too high in the circumstances if they are going to have any effect on her. We are going to reduce the fines to $1,500. We are going to change the suspension to be a full suspension until July 1^st of this year. She will have the usual probation provisions for two years starting July 1, 2016 expiring on June 30, 2018 and those suspensions I believe are set out in the ruling of 2008. Mr. Buchanan, anything further?

MR. BUCHANAN: No, just one perhaps summary comment as what we tried to do was put all this together and didn’t confine our suspension to one or the other. It is kind of a lot decision. There is a lot of material here as everyone is aware. It is clear that the breach on the probation side is serious and there is a lot of stuff here but we did try to do it in totality so we didn’t refer to this fine for that or whatever. It is sort of lump sum based on everything that is here and we feel it is serious enough that it certainly requires additional suspensions but we were trying to be responsive to what we heard here today. We certainly appreciate the Administration and counsel working on agreed statements. This could have taken us many many hours and perhaps days to arrive at the same thing so I certainly want to commend the Admin. And defence for allowing us to put this together and dealing with this in a very difficult situation in terms of all being cooped up in one room but again, thank you because this could have turned into a very very long thing and it has already been around since December 2014 and I recognize the fact that appellants are entitled to timely service so I want to thank both sides for what they have done here. Unless there are any questions?

MS. RITACCA: I just have a question and I don’t want to put a wrinkle in the decision but we have a situation here where Ms. Gangell doesn’t have a licence as of January 2016 and so the imposition of the penalty until July 1^st, 2016 is really moot because she doesn’t have a licence so I’m not sure what the panel, and I apologize, I should have made that clearer.

MR. BUCHANAN: I don’t know how we do this practically but we need to reword it so that Ms. Gangell is not allowed to have a licence until July 1, 2016 and if a licence is renewed --

MR. MACDONALD: Granted.

MR. BUCHANAN: Or whatever the words are --

MS. RITACCA: Then she is subject to the probation.

MR. BUCHANAN: Then she is subject to two years probation from the time that she renews her licence.

MS. RITACCA: That’s fine.

CERTIFIED CORRECT_________________________________

RAYMOND P. MACDONALD, B.A., CVR

Commissioner of Oaths