RULING NUMBER COM SB 002/2016

COMMISSION HEARING TORONTO, ONTARIO – JANUARY 26, 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

GERALD LILLEY AGAINST RULING SB 46560

Date of Hearing: January 26, 2016

ORC Panel: Anthony Williams, Vice Chair

Counsel for the Appellant: Robert Burgess

Counsel for the Administration: Luisa Ritacca

Decision:

The Panel accepted a Joint Submission on Disposition.

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

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

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 GERALD LILLEY:

Held Before:

Anthony Williams Commissioner

These are an excerpt of the proceedings in the above mentioned matter held before The Ontario Racing Commission, Re: GERALD LILLEY, taken before Toronto Court Reporters, Suite 1410, 65 Queen Street West, Toronto, Ontario, at 10 Carlson Court, Suite 400, Toronto, Ontario, on the 26th day of January, 2016.

Appearances:

Luisa Ritacca, For the Ontario Racing Commission Administration

Robert Burgess, Q.C., For the appellant

Hearing continued ...

MR. CHAIRMAN: The ruling will be brief and is as follows. This is an appeal by Gerald Lilley. Gerald Lilley is licensed by the Ontario Racing Commission as a trainer of Standardbred racehorses. On Wednesday, August 19, 2015 at the Grand River Raceway PARTY IN ROME, a horse trained by Gerald Lilley, won the one mile pace, the 5^th race at the track. A urine test taken following the race from the horse was subsequently analyzed and resulted in a certificate of positive analysis for a prohibited drug, a Class 3 drug known as minoxidil. As is the custom for positive tests multiple sanctions ensued of both mandatory and discretionary nature. One of the mandatory sanctions was what is now before us in Exhibit 1 tab 9, page 16, the judges’ ruling from January 18, 2016 at Woodbine Racetrack. It is Standardbred official ruling SB46560. The portion of the ruling that is the subject of this proceeding this afternoon is the component in relation to the penalty pursuant to the combined provisions of Rules of Standardbred Racing 11.10.01(iii) and 20.01.01(1)(iii) which states: “Horse placed on judges’ list and ineligible to race for a period of 90 days (less 10 days time served) November 15 to January 29, 2016.” I have been provided with a thorough history as to certain difficulties that arose following a stay granted in relation to this particular aspect of the ruling and certain misinformation. The Administration and the appellant have provided a joint submission as to potential disposition in relation to resolution of this matter. I was asked in the hearing at the conclusion of the proposal whether I was of the opinion that the joint submission was fair and reasonable. I am of the opinion that the joint submission is both fair and reasonable. The joint submission is as follows and I adopt it and I quote: “The Administration and the appellant Gerald Lilley jointly request that ruling SB46560 dated January 18, 2016 be varied as follows: the penalty of horse PARTY IN ROME placed on judges’ list and ineligible to race for a period of 90 days (less 10 days time served) September 29 to December 19, 2015. Further the horse PARTY IN ROME is now eligible to qualify at Woodbine on January 14, 2016 and the result of qualifier number 3 is restored.” That will be the ruling. I trust I have read it accurately. Is there anything else that counsel would wish to present?

MS. RITACCA: I am just conferring with Mr. Stewart who will be responsible for giving effect to the ruling. Mr. Stewart is happy to contact Standardbred Canada to advise them of the variation if that is fine with the appellant. That is something we didn’t address and the second question that was put to me was whether it would be your preference, Mr. Commissioner, to issue a ruling, a new ruling or if you would like the judges to issue a ruling. In my view you have varied their ruling so I think it actually should come from you but we can hear from Mr. Burgess on that.

MR. BURGESS: You have the omnibus power in section 9 or whatever it is. You can do anything you want here and that’s what you have done so we are very happy with it.

MR. CHAIRMAN: Do you review that magical powers as rule 1.09?

MR. BURGESS: The section that we always argue to say that absolute liability does not apply. There is a very wide power to you right in here.

MR. CHAIRMAN: I agree that you have argued absolute liability doesn’t apply on many occasions. Whether others have been persuaded by that submission would remain to be seen but rule 1.09 of the Rules of Standardbred Racing certainly provides very considerable discretion.

MR. BURGESS: That’s right.

MR. CHAIRMAN: I expect or I anticipate that since you have the little bump in relation to communication with regard to a previous September 11^th, 2015 stay by a fellow Commissioner John W. Macdonald that because we are in an open hearing today and we have a true veteran of transcripts, the gentleman, if he is so disposed, sometimes does same day service in relation to transcripts in relation to rulings and sometimes those can be same day service.

MR. BURGESS: I think in this instance you are seized of the file and there is also a provision in here about judges making changes to things other than their own orders. I think it is much safer ground if we can go with your order here modifying what came before it.

MR. CHAIRMAN: Yes. First, in relation to two modest issues that have been raised I would thank Mr. Stewart, Standardbred judge, if he would kindly make the appropriate notifications to Standardbred Canada and secondly I would lean towards; I feel possessive about this, that it be a ruling from the Commission that is entered as opposed to an amendment by the judges themselves of their own ruling when it has come here as the appellant form.

MR. BURGESS; I don’t want to disturb this on the unusual event where everybody is winning so we are very happy if you leave it just with that.

MR. CHAIRMAN: I am pleased that you feel content with your proceeding this afternoon, sir and I hope PARTY IN ROME is highly successful. That will depend on many factors. Is there anything else? I anticipate; it would be shocking if there were, there being no order as to costs or other ancillary orders of that nature.

MS. RITACCA: No, we have nothing further.

MR. CHAIRMAN: Thanks very much.

CERTIFIED CORRECT:_________________________________

RAYMOND P. MACDONALD, B.A., CVR

Commissioner of Oaths