RULING NUMBER COM TB 022/2015

COMMISSION HEARING TORONTO, ONTARIO – NOVEMBER 27 & DECEMBER 3, 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 HEARING OF

NORMAN MCKNIGHT

Dates of Hearing: November 27 & December 3, 2015

ORC Panel: Elmer Buchanan, Chair

Anthony Williams, Vice Chair

S. Grace Kerr, Commissioner

Counsel for the Appellant: Daniel McMahon

Counsel for the Administration: Carlo Di Carlo

Decision: (a) The motions for a stay of proceedings are dismissed;

(b) The motion for exclusion of evidence is dismissed;

(c) The application for utilization of the Ontario Racing Commission’s discretionary powers is denied;

(d) The appeal is denied; and,

(e) The Stewards’ penalty, dated October 3, 2015, is affirmed in its entirety, that is, that Mr. McKnight:

(i) shall serve a 60-day suspension (which, the Panel notes, has been completed);

(ii) shall pay a fine in the sum of $1,500, payable when the suspension is concluded; and,

(iii) shall have standard terms of probation added to his Licence for a period of two years following the conclusion of his suspension.

The Panel’s Reasons for Decision is attached to this Notice.

DATED at Toronto this 1^st day of February 2016.

______________________________

Jean Major

Executive Director

REASONS FOR DECISION

Authorities Considered

Shakes v. Ontario Racing Commission, 2013, ONSC 4229 (ONDC)

Re Shakes [2012] O.R.C.D. No. 69, Ruling Number COM SB 031/2012 (Ontario Racing Commission)

Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] S.C.J. No. 43 (SCC)

Canadian Charter of Rights and Freedoms, s. 2, Part I of the Constitution Act, 1982, c. 11, ss 7 and 24

Mussani v. College of Physicians and Surgeons of Ontario, 2004 CanLII 48653 (ON CA), [2004] O.J. No. 5176 (ONCA)

R. v. Michaud, 2015 ONCA 585, [2015] O.J. No. 4540 (ONCA)

Legislation Considered

Racing Commission Act, 2000, RSO 2000, c. 20: Rules of Thoroughbred Racing 2012, Rules 15, 24 and 37

Policy Paper and Directives Considered

Canadian Pari-Mutuel Agency Policy Paper P-006, effective October 1, 2012

Ontario Racing Commission Policy Directive No. 1-2008, dated January 23, 2008

Ontario Racing Commission Policy Directive No. 2-96, dated October 21, 1996

Basis of the Motion

1. The Licensee, Norman McKnight (“Mr. McKnight”), brought a motion, dated November 4, 2015 and returnable November 27, 2015 in the City of Toronto. A Panel of the Ontario Racing Commission (“the ORC”) heard the motion on Friday, November 27, 2015 and Thursday, December 3, 2015.

2. Mr. McKnight seeks an Order that the ORC:

a. allow his appeal of the Stewards’ Decision, dated October 3, 2015;

b. stay the proceedings against him as there has been a denial of his right to make full answer and defence;

c. stay the proceedings against him as there has been a denial of procedural fairness to him;

d. exclude the Certificate of Analysis, dated December 9^, 2014, as evidence as there has been a denial of his right to fundamental justice, and in particular, the right to make full answer and defence in a meaningful way; or,

e. any other remedy as authorized by Section 24 of the Charter of Rights and Freedoms (“the Charter”) as there being an apparent denial of his rights as guaranteed by Section 7 of the Charter.

Decision

3. After having carefully considered all the evidence and submissions on the motion, the Panel makes the following decision. (Its analysis and reasons are detailed later in this decision.)

4. The Panel dismisses Mr. McKnight’s claim:

a. for a stay due to a breach of his rights as guaranteed by Section 7 of the Charter:

b. for a stay of the proceedings due to procedural unfairness; and,

c. for exclusion of the Certificate of Analysis as evidence on the basis that the Licensee’s right to fundamental or natural justice, and particularly, his right to make full answer and defence, following a positive total carbon dioxide (“TCO2”) test result of 39.7 millimoles per litre (“mmol/l”) in a blood sample taken from the Licensee’s horse, Eye of the World that raced on December 7, 2014 at the Woodbine Racetrack.

5. The Panel refuses to exercise discretion under Rule 24 of the Rules of Thoroughbred Racing in Mr. McKnight’s favour, to set aside the Stewards’ decision, dated October 3, 2015 (“the Stewards’ decision”).

6. The Panel denies Mr. McKnight’s appeal of the Stewards’ decision and affirms the penalty imposed upon him by the Stewards in their decision.

Summary of the Evidence

7. First, the Panel notes that the essential facts of this case are largely uncontroverted. The legal implications of those facts, though, are in dispute, and will be discussed in the Panel’s reasons and analysis, below.

8. The Panel finds the salient facts of this case to be as follows.

9. Mr. McKnight has been licensed by the ORC, in various capacities in both the Standardbred and Thoroughbred industries, for approximately 43 years.

10. Since 1995, he has been licensed by the ORC as a thoroughbred horse trainer.

11. Until now, Mr. McKnight has never been disciplined by the ORC since becoming a licensed thoroughbred trainer. Specifically, he has never had any positive tests regarding any horses under his care.

12. In December 2014, Mr. McKnight was training between 18-25 horses, which were stabled at Woodbine Racetrack (“Woodbine”). His sole source of income was derived from training horses. He employed about 8-10 people, including grooms, hot walkers and exercise persons.

13. One of the horses Mr. McKnight was training, Eye of the World, was part of the ORC’s Exercise Induced Pulmonary Haemorrhage Program (“EIPH”). As such, it had been injected with furosemide, or Lasix, prior to race time on December 7, 2014.

14. Eye of the World placed third in the 4^th race at Woodbine on December 7, 2014, and was selected for testing of TCO2 levels. As a result, a blood sample was taken from Eye of the World, using prescribed procedures.

15. The Canadian Pari-Mutuel Agency (the “CPMA”) has established levels for the presence of TCO2 in horses; specifically, the maximum level in EIPH horses is 39.0 mmol/l. (Rule 37.01:2 of the Rules of Thoroughbred Racing.)

16. Racing Forensics Inc. (“RFI”) is a CPMA-approved laboratory to test for TCO2 levels.

17. On December 12, 2014, the Stewards advised Mr. McKnight that the December 7^th blood sample, which had been submitted to RFI for analysis, tested positive for levels of TCO2 in excess of the allowable amount (“the December 7^th sample”).

18. Specifically, the Certificate of Analysis with respect to the December 7^th sample showed that Eye of the World had a TCO2 level of 39.7 mmol/l on the day of the race. The Certificate of Analysis is dated December 9, 2014.

19. In the week that followed, Mr. McKnight was contacted by an Investigator with the ORC and met with him on December 17, 2014, to provide his statement regarding the positive test result.

20. Mr. McKnight denied knowing any reason for his horse to have tested positive for excessive TCO2 levels.

21. In the ORC investigatory interview, Mr. McKnight was asked whether anybody might have tampered with the horse, and he replied:

“To me there is only two reasons how this could have happened one would be physiological on the animals part the second one would be tampering hard to prove without video surveillance or when it could have been done a lot of people have access to the stable area anyone could walk through my stable anytime and walk through the barns so my gut feeling would be someone tampering if not physiological or if it wasn’t an error made in the testing itself whether it be machine or human.”

22. Mr. McKnight did not quarantine Eye of the World upon being notified of the positive TCO2 result.

23. Prior to the positive reading on December 7, 2014, Eye of the World had never been tested and found with a TCO2 level exceeding the maximum allowable under the Rules.

24. Eye of the World had blood work completed on November 27, 2014, which showed its TCO2 level at 32.0 mmol/l on that date.

25. With his veterinarian’s approval, Mr. McKnight treated Eye of the World with antibiotics and electrolytes in the 10 days between the November 27^th blood work and the December 7^th race date.

26. It was left to Mr. McKnight’s discretion whether to race Eye of the World on December 7^th.

27. During the weeks following the excessive TCO2 finding, Mr. McKnight communicated with an American professor about TCO2 levels in horses, trying to determine if there could be any other explanations that could account for Eye of the World’s elevated TCO2 test result.

28. Mr. McKnight learned there was a procedure, called an “ion concentration test” (“ICT”), which measures sodium, potassium and chloride ion and blood protein levels in blood plasma.

29. Mr. McKnight wanted to have an ICT performed on the residue sample of the December 7^th sample (“the residue sample”).

30. He understood that an ICT would be a new (i.e. different) test that would be performed using the plasma of the residue sample, and not a re-testing of the TCO2 levels in it.

31. Mr. McKnight did not dispute the TCO2 test results, but believed that the results of the ICT might establish that Eye of the World was an “outlier”, thereby exonerating him.

32. As a result, Mr. McKnight tried to obtain the residue sample, and the following notable interchanges and efforts took place in that regard.

33. Shortly after learning about the ICT, Mr. McKnight contacted RFI to see if they could conduct that test on the residue sample, but was advised to first receive approval of the ORC.

34. On December 31, 2014, Mr. McKnight emailed the ORC, asking if an ICT had been done on the residue sample, and if not, whether RFI could do one, at his expense.

35. On January 27, 2015, he followed up with the ORC, by letter, asking if RFI had performed the ICT and confirming that he wished one done.

36. On January 29, 2015, the president of RFI, Mr. Richard Tso, emailed Mr. McKnight and advised him that:

a. The only analysis performed on the December 7^th sample was for TCO2 levels;

b. RFI is not set up to do ICT in blood samples;

c. That the sample A and/or B residues (sometimes referred to as “the residue” or alternatively as the “split sample”) was available and properly stored;

d. That the potassium, sodium and chloride ions and the protein content were stable and could potentially be measured;

e. That RFI does not customarily release TCO2 residue samples;

f. That if the ORC agreed to the conduct of the ICT, the following guidelines were recommended;

i. That Mr. McKnight acknowledge “that he accepts the TCO2 rules and that any such testing is being performed for information concerning the condition of the horse in question and that the results of such testing will not be used in an attempt to overturn the findings, which are in clear violation of the rules;

ii. (RFI) will submit the residue samples to a laboratory of its choosing for the analysis of potassium, sodium, chloride and protein content;

iii. All expenses associated with this testing (would be) the responsibility of (Mr. McKnight);

iv. The results of this testing will be received by (RFI) and forwarded to the ORC.

g. Should (Mr. McKnight) not be willing to accept these conditions and the intent is instead to attempt a challenge of the findings, the existing alternative of placing the horse in quarantine for observation and testing should be the only option available.” (Excerpted from Exhibit 8)

37. On February 18, 2015, a representative of the Horsemen’s Benevolent Protective Association of Ontario (the “HBPA”), on Mr. McKnight’s behalf, requested that the ORC release the residue sample for independent analysis.

38. On February 26, 2015, counsel for the ORC responded that the residue sample would not be provided for independent analysis, as requested by the HBPA, and indicated that it would consider an ICT to be an improper use of the sample.

39. On March 3^rd a representative of the HBPA, responding to the February 26^th letter, again requested that the residue sample be released for independent analysis.

40. On April 1, 2015, the ORC notified the HBPA that its counsel had received instructions to release the residue sample, either to Mr. McKnight or the HBPA, for independent analysis.

41. On May 14, 2015, the HBPA, on Mr. McKnight’s behalf, wrote to the ORC and requested the residue sample be released for analysis.

42. On June 25, 2015, the HBPA, on Mr. McKnight’s behalf, sent a follow-up letter to the ORC regarding its May 14^th letter, as it had not received a response to that letter.

43. On June 25, 2015, the ORC instructed RFI by memo to release the residue sample, also advising where it was to be sent.

44. On or about June 25, 2015, the residue sample was sent to central laboratory of the University of California, Veterinary Medical Teaching Hospital, at Davis, (“UC at Davis”) for an ICT.

45. The UC at Davis could not complete an ICT on the sample, as there was no plasma in the residue sample that had been sent. Mr. McKnight was notified of this development on July 3, 2015.

46. RFI is required to preserve the chain of evidence regarding a sample taken for TCO2 analysis for only 48-96 hours.

47. Within 10 days – 2 weeks of a sample being opened, the TCO2 in the sample begins to break down and it becomes unstable (i.e. labile).

48. Sodium, potassium and chloride ions, as well as blood proteins, are stable over time.

49. There must be blood plasma in a sample in order to measure sodium, potassium and chloride ion and blood protein levels in a sample.

50. Typically, approximately 3 cc’s of blood are taken to sample blood for TCO2 levels.

51. The amount of plasma that remains in a sample after testing for TCO2 levels will vary because the amount of blood drawn in order to do the analysis will vary.

52. Despite the representations found in Mr. Tso’s January 29^th email, no one at RFI would appear to have specifically ascertained whether or not there was sufficient plasma in the sample residue before sending it to UC at Davis.

53. In all likelihood, all of the plasma was used in the initial TCO2 testing of the December 7^th sample.

54. One of the side effects of administering the diuretic medication, Lasix, to a horse is a slight increase in blood TCO2 levels.

55. Higher levels of TCO2 in the blood can enhance the performance of a racehorse, by counteracting fatigue due to the accumulation of lactic acid in the horse’s muscles while it is racing, thereby allowing the horse to perform at a higher level for a longer time.

56. Normal or expected TCO2 levels in an average, healthy horse is in the vicinity of 30 mmol/l; in a Lasix-treated horse, the normal level would be in the range of 1.5-2 mmol/l over the norm.

57. Pre-race oral administrations of sodium bicarbonate (i.e. “milkshaking”) can cause TCO2 levels to become elevated.

58. On September 25, 2015, as provided for in the Rules of Thoroughbred Racing, a panel of ORC Stewards convened to hear the matter of the overage of TCO2 levels found in Mr. McKnight’s horse, Eye of the World, in the December 7^th race.

59. On October 3, 2015, the Stewards released Thoroughbred Ruling TB 9583/2015, finding that Mr. McKnight violated Rule 15.06.03(c) (d) of the Rules of Thoroughbred Racing, and as a result: suspended him for 60 days (from October 12 through December 10, 2015); fined him the sum of $1,500.00, payable when the suspension concluded; and, added standard terms of probation to his licence for a period of two years.

60. This was the minimum penalty available to the Stewards, as set out in the ORC’s Policy Directive No. 1-2008 Guidelines.

61. As at the second day of the hearing of the ORC panel, that is, December 3, 2015, Mr. McKnight had served all but seven days of his suspension.

62. Also, on that date, the Panel ordered that Mr. McKnight was not required to pay the $1,500.00 fine upon completion of the suspension, pending the Panel’s decision in this matter.

63. The Stewards took several factors into account in determining their sanctions, namely:

a. That Mr. McKnight was cooperative throughout the investigation process; and,

b. That he has trained horses for many years with a clean record and runs a professional operation.

64. On October 5, 2015, Mr. McKnight submitted a Notice of Appeal of the Stewards’ Decision to the ORC and requested a stay pending the hearing of the appeal. The Deputy Director of the ORC denied his request for a stay on October 13, 2015. Thereafter, Mr. McKnight brought the proceedings that are the subject of this decision.

Witnesses and Credibility Determinations

65. The Panel heard evidence from the following witnesses:

a. Mr. Richard Tso, President and Operations Manager, RFI;

b. Mr. William McMahon, Steward with the ORC;

c. Dr. Robert McKenzie, who was qualified as an expert witness, Laboratory Manager RFI and owner of MECS, LLC, which is an equine and laboratory consulting service; and,

d. Mr. Norman McKnight.

66. The Panel found each witness to be credible, reliable and helpful in giving evidence.

Parties’ Positions

67. Mr. McKnight alleges that his right to a fair hearing was denied when he was not provided a sufficient residue sample from the blood taken from his horse, Eye of the World, on the race date, to allow him to have an independent analysis done, including an “ion concentration test”, which he claimed “could have exonerated him”.

68. Further, Mr. McKnight alleges that:

a. the residue sample was readily available when requested;

b. compliance with the request would not have disrupted the proceedings,;

c. the proceeding was unjustly prolonged because of the refusal of the ORC to make the residue sample available for testing in a timely fashion;

d. the request for the residue sample to be made in a timely fashion;

e. he was willing to cover any reasonable cost to have the residue sample tested;

f. he was prepared to protect the integrity of the remainder of the residue sample and the independent testing process; and,

g. the test of the residue sample had the possibility of exonerating him completely.

69. Finally, Mr. McKnight alleges that, while RFI confirmed that they had a residue sample sufficient to allow the test to be done that had the possibility of exonerating him; it was never provided to him.

70. The administration denied the allegations made by Mr. McKnight and the relief sought.

Legal Issues

71. Were Mr. McKnight’s rights, protected by s. 7 and enforceable under s. 24 of the Charter, breached?

72. Was there a denial of natural justice or procedural fairness to Mr. McKnight in view of what transpired following his request for a release of the residue sample for an ICT?

73. Should the Stewards’ Decision, dated October 3, 2015, be stayed, in whole or in part?

74. Should the Panel exercise the discretion, available to it under Rule 24 of the Rules of Thoroughbred Racing, to set aside, in whole or in part, the Stewards’ decision?

Analysis and Reasons

Sections 7 and 24, Canadian Charter of Rights and Freedoms

75. Section 7 of the Charter provides as follows:

“7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

76. Sub-sections 24 (1) and (2) of the Charter, which entitles Mr. McKnight to seek redress before the Panel, provide as follows:

“24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

24. (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”

i. Life, Liberty or Security of the Person

77. Mr. McKnight bears the onus to show a breach of s. 7 of the Charter under a two-part test, described by the Ontario Court of Appeal in R. v. Michaud. The burden of proof is on a balance of probabilities.

78. According to the Michaud decision, Mr. McKnight must first show that the alleged offending conduct of the public bodies negatively impacts on his life, liberty or security. If, and only if, this can be demonstrated, then Mr. McKnight must also prove that he was deprived of his interest in a manner contrary to principles of fundamental justice.

79. The Panel finds that Mr. McKnight has not met his onus.

80. First, on the facts outlined above, there are no life or liberty issues at stake in this matter. Indeed, neither party argued this point.

81. Rather, security of the person is the only realistic Charter interest that may have been violated in this case.

82. In the case of Mussani v. College of Physicians and Surgeons of Ontario, the Ontario Court of Appeal considered the concept of “security of the person”.

83. The appeal court in that case found that s. 7 does not protect economic interests or individuals’ rights to engage in economic activity of their choice. In that case the Ontario College of Physicians and Surgeons had revoked a physician’s right to practice medicine, yet, the Court held that being unable to practice the profession of one’s choice was not sufficient to invoke s. 7.

84. Furthermore, in the Michaud decision, the Ontario Court of Appeal, at paragraph 64, says as follows:

“…Security of the person has been defined over time to include the physical and psychological integrity of the person, including personal autonomy. Possible negative effects on the preservation of a person’s physical safety and wellbeing are clearly contemplated by security of the person. There must be … a “sufficient causal connection between the state-caused effect and the prejudice suffered by the claimant”…”

85. Put simply, proving a breach of the security of one’s person is a very high standard to meet, and usually involves rights of fundamental significance to a person and their sense of personhood.

86. The Panel finds that this matter involves a considerably less serious economic interest that under review in the Mussani case, where the Court under s. 7 did not afford the appellant relief.

87. Here, Mr. McKnight was given the minimum sanctions available to the ORC Stewards under the Rules and ORC Policy Directive No. 1-2008. In the face of a positive test result respecting an absolute liability offence, they imposed a $1,500 fine against Mr. McKnight, suspended his license to train horses for two months, and added two years of standardized conditions to his licence.

88. Subject to this penalty, he will retain his licence and continue to be able to earn his livelihood by training horses.

89. The Panel recognizes that Mr. McKnight may lose some reputation in the horse racing industry, and his integrity has been questioned, having been found in violation of the Rules. This might, in turn, cause some personal and financial hardship to Mr. McKnight.

90. This by-product is truly unfortunate, because Mr. McKnight had a long and unblemished record as a trainer in the industry.

91. However, it is also not sufficient to allow the Panel to conclude that Mr. McKnight’s section 7 right to security of the person has been breached as a result of the impact of the Stewards’ decision.

92. The Panel is bound by the Michaud and Mussani decisions, and as a result, it cannot find that the sanctions meted out, together with the potential stigma and financial consequences Mr. McKnight may suffer are of a sufficient degree as to engage the protection of s. 7 in this case.

ii. Denial of Natural Justice due to Delay and Inability to Make Full Answer and Defence

93. Mr. McKnight’s main argument was that he suffered significant prejudice, resulting in a denial of natural justice under the Charter, because of the obstructive conduct of the ORC and/or RFI, such that he was not provided with a useable residue sample, in a timely fashion, in order to have an ICT conducted.

94. Mr. McKnight urged the Panel to conclude that the actions of the ORC and RFI amounted to a denial of natural justice and procedural unfairness in administrative proceedings, preventing him to make full answer and defence to the finding against him at the Stewards’ hearing.

95. In other words, the Panel is urged to conclude the agencies’ conduct and delay – and the resultant inability to conduct an ICT – prevented Mr. McKnight from showing that he had exercised due diligence vis-à-vis Eye of the World, inasmuch as there was a possible, natural explanation for the TCO2 reading obtained.

96. Mr. McKnight allows that due diligence would not have been an answer to an absolute liability offence, but argues that it may have gone towards reducing or eliminating the sanctions imposed against him.

97. Based on the foregoing, he seeks a stay or dismissal of the Stewards’ decision. Alternatively, he seeks to have the Certificate of Analysis excluded on the basis that he has been denied the right to fundamental justice, and in particular, to make full answer and defence in a meaningful way.

98. Counsel on behalf of the administration denied these allegations and the relief sought.

99. As before, Mr. McKnight has the burden of proof on the balance of probabilities.

100. Where the Panel is given discretion, it must exercise it reasonably.

101. On the facts of this case, the Panel finds that Mr. McKnight has not met his onus of proof, and refuses to exercise discretion in his favour.

102. The Panel begins its analysis by addressing the issue of delay.

a. Delay

103. The main case on point is that of Blencoe v. British Columbia (Human Rights Commission), decided by the Supreme Court of Canada.

104. In the administrative law context, such as this matter, there must be proof of significant prejudice that results from an unacceptable delay amounting to an abuse of process before a stay will be considered, according to Blencoe.

105. More specifically, the Court in Blencoe, at paragraph 120, held that the delay justifying a stay must be found to be both inordinate and so oppressive as to taint the proceeding. Also, a stay should only be granted rarely and in the clearest of cases where:

a. Damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted; and,

b. Proceedings are so unfair they are contrary to the interests of justice.

106. Also, according to Blencoe, the burden, or threshold, that must be met is heavy. Further, the discretionary power to stay is not to be taken lightly and cases in which it is exercised will be “extremely rare” (Blencoe, at paragraph 120).

107. The Court held that the length of the delay alone is not determinative, but must be assessed within the context of the various rights at stake in the proceedings, and at paragraph 122 of the Court’s decision, identified several factors contributing to the assessment of whether delay is inordinate, as follow:

a. The nature of the case and its complexity,

b. The facts and issues,

c. The purpose and nature of the proceedings,

d. Whether the party claiming the relief contributed to, or waived, the relief, and,

e. Other circumstances of the case.

108. The Panel bases its decision on the following significant factors.

109. It is standard practice for samples to be released to another qualified laboratory for re-testing, when requested, in the event of a drug violation.

110. Indeed, the ORC’s Policy Directive No. 2-96 (“Policy and Procedure on Handling Requests for the Retesting of Residue Samples”, dated October 26, 1996) (Exhibit 14) (“ORC Policy Directive No. 2-96”) confirms “that is the CPMA’s policy that, where requested by a provincial Commission, barring exceptional circumstances, it will release a residue sample on terms and conditions established by the Commission.”

111. Generally speaking, the ORC Policy Directive No. 2-96 provides that Licensees requesting a residue sample for re-testing should have reasonable access to the sample. It indicates that, as a matter of policy, residue samples would be released on consent, and the CPMA notified accordingly.

112. Also, the Licensee may choose a laboratory for re-testing, preferably one that is officially recognized by the CPMA. Re-testing would be at the Licensee’s expense.

113. Finally, the ORC’s directive sets out the procedure the Licensee should follow for requesting residue samples.

114. As well, CPMA Policy Paper P-006, dated October 1, 2012, “describes the time limitation and process requirements by which the CPMA will authorize the release of existing residue of an official sample.”

115. No one disputes that Mr. McKnight asked for the residue sample to be released in a timely fashion.

116. The CPMA policy paper also states that “(a)n official sample that has been deemed positive and has existing residue may only be released to the trainer/owner for independent analysis in order to confirm the findings of a positive analysis.” (emphasis added)

117. Importantly, it also states that “(t)he CPMA is under no obligation to ensure that a residue sample is available for referee analysis. There are cases where the official sample has been completely consumed in the initial analyses. In this situation, the official sample’s container is securely stored for 45 calendar days and is available on request.” (emphasis added)

118. Furthermore, it states that “(t)he Official Laboratory may use the official sample entirely in order to confirm the presence of a drug. In these cases, the (originator of the request) and the (Provincial Regulatory Body) will be notified that no residue is available for a referee analysis.”

119. Additionally, the CPMA Policy Paper P-006 contemplates re-testing of a positive sample for “a particular drug or substance”. (emphasis added)

120. Finally, as in the ORC Directive 02-96, the CPMA Policy Paper P-006 sets out a step-by-step procedure for owners/trainers to follow in the official residue sample release process and provides that the originator of the request is responsible for all costs associated with the process and for making arrangements.

121. The Panel is satisfied that, although Mr. McKnight was unaware of the existence of the procedural requirements, or directions, in the foregoing policy directives on the release of residue samples for re-testing, he in essence followed them, albeit inadvertently.

122. Why then did he encounter problems, which resulted in an approximately 6-month delay, in getting Eye of the World’s residue sample released to him? There are several reasons.

123. TCO2 is classified as a Class III drug, under ORC Policy Directive No. 1-2008.

124. However, it is not customary in the horse racing industry for samples chosen for TCO2 analysis to be released for re-testing of those levels, mainly because TCO2, a gas, begins to break down in the blood once the test tube has been opened.

125. Neither the ORC policy directives nor the CPMA policy paper contemplate the unique challenges related to re-testing for the presence of TCO2, a gas.

126. Furthermore, neither policy directive contemplates the possibility of an owner/trainer requesting the release of the residue sample for a different, or additional testing.

127. The January 29, 2015 email from Mr. Tso of RFI and Mr. McKnight, outlined in paragraph 36 above, highlights the uncertainty arising from the above-described void in policy directives.

128. It was clear, from both Mr. McKnight’s correspondence with both the ORC and RFI (see paragraphs 34, 35, 37, 39, 41 and 42 above) and his evidence at the hearing, that he never requested a re-testing of the sample for its TCO2 content: from the outset of this matter he has accepted the accuracy of RFI’s Certificate of Analysis.

129. Rather, Mr. McKnight wanted the residue sample to have it independently tested for the presence of sodium, potassium and chloride ions as well as blood protein levels, that is, for an ion concentration test. In other words, he wanted to subject the residue to a completely different test.

130. The first substantive response Mr. McKnight received to his request was Mr. Tso’s January 29^th email.

131. The Panel finds upon a straightforward reading of that email, both the ORC (by implication) and RFI understood that Mr. McKnight wanted the residue sample to conduct an ICT.

132. Yet, in that email, Mr. Tso clearly tries to address both Mr. McKnight’s request for an ICT to be performed on the residue sample and his concerns that the residue sample would not, and should not be used, for TCO2 re-testing.

133. Then, after a brief time, the ORC seemed to change its position in its letter to Mr. McKnight, dated February 26, 2015, indicating that the residue sample would not be provided and that performing an ICT would be considered an “improper use of the sample”.

134. About 5 weeks later, or, on April 1, 2015, the ORC changed its position and wrote to the HBPA, which was acting on Mr. McKnight’s behalf, to indicate that the sample would be released for ICT testing.

135. This Panel was not asked by the parties to decide whether conducting an ICT was an “improper use” of a residue sample, and in fact, no evidence was led to support this position.

136. The Panel notes that neither the ORC nor RFI explained why it took from April 1^st until June 25^th for the residue sample to be released to the UC at Davis. However, in the final analysis, this further 3-month delay is immaterial, as it did not affect the ultimate fact that an ICT was impossible due to inadequate plasma in the residue sample.

137. Based on all of the evidence in these proceedings, including especially the viva voce testimony of the witnesses, the Panel concludes that the ambivalence, inconsistencies and concerns expressed in the January 29^th email as well as the ORC’s changing position in its February 26^th and April 1^st letters, were not founded in any ill will towards Mr. McKnight and were not an attempt to thwart his request.

138. Rather, the ambivalence, concerns and inconsistencies arose because neither the ORC directives nor the CPMA policy paper anticipates the possibility of having a Licensee conduct a different test upon a residue sample.

139. There was an additional issue, which again, is not contemplated by either policy directives/paper, namely, that the sample had primarily been tested for a substance that does not remain stable.

140. Dr. McKenzie, who acknowledged himself as the primary author of Mr. Tso’s January 29^th email, in large part, raised this further concern and attempted to address it in that email by way of the first guideline (see paragraph 36(f)(i)).

141. In his testimony, Mr. Tso could not conclusively say why there was insufficient plasma in the residue sample sent to UC at Davis, in late June 2015, even though he states unequivocally in his January 29, 2015 email that a sufficient amount was available for ICT testing.

142. At the hearing, he surmised that no one had specifically checked the sample before he corresponded with Mr. McKnight in late January 2015, that this representation was probably inaccurate, and that all of the blood plasma had likely been used up in the RFI laboratory during the initial TCO2 testing (and re-testing, once a positive test result was obtained).

143. After hearing Mr. Tso’s testimony, on behalf of RFI, the Panel concludes that he made an innocent misrepresentation, which was done without any malice or bad faith. Regrettably, however, his inaccurate statement misled Mr. McKnight into reasonably believing that sufficient residue was available for ICT testing and fed into his increasing frustration with both the ORC and RFI, as his consistent efforts to effect the release of the residue sample came to naught.

144. Just over six months passed between the time that Mr. McKnight first asked that the residue sample be tested for sodium, potassium and chloride ion and blood protein levels and his learning that there was insufficient blood plasma in the residue sample so an ICT could not be performed.

145. Another way of looking at it is that just less than 7 months passed between the issuance of the Certificate of Analysis (December 9, 2014) and when Mr. McKnight learned that an ICT could not be completed (July 7, 2015).

146. There was an additional 2 ½ months before the Stewards’ Hearing would take place on September 25, 2015.

147. In total, Mr. McKnight had just over 9 months to “put together his case” for the Stewards’ Hearing.

148. For these reasons, the Panel concludes that while there was some delay caused by the public agencies in this case, it was neither inordinate nor oppressive in all of the circumstances.

149. Also, based on the foregoing reasoning, the Panel finds that Mr. McKnight did not suffer any significant prejudice as a result of the agencies’ delay. Furthermore, to the extent he was prejudiced, it was not sufficiently significant so as to flaw the proceedings before the Stewards.

150. It is a privilege to have a licence to train horses. In return, the Licensee binds himself to abide by, in this case, the Rules of Thoroughbred Racing generally, and the absolute liability rules specifically.

151. The absolute liability standard that applies to trainers is seen as justifiable and necessary to the integrity of the racing industry. In turn, that trainers are held to this level of responsibility is seen to be in the public’s interest.

152. Equine health and well being is another important reason for the development and application of an absolute liability standard. Indeed, one of the greatest impediments to the integrity of horse racing is the use of drug stimulants and other types of performance enhancing interventions. This is why the EIPH program is strictly enforced and monitored, for example.

153. Specifically, an excess level of TCO2 is “deemed to be adverse to the best interests of horse racing and adverse to the best interests of the horse in that such condition alters its normal physiological state.” (Rule 37.01 of the Rules of Thoroughbred Racing)

154. Due to these various public interest and animal welfare matters, strict standards are established and enforced, and testing procedures are rigorously applied; sanctions are strict and subject to only limited discretion.

155. Equally important, though, Licensees are entitled to fair and just hearings, in accordance with the law. The Panel agrees that disciplinary sanctions may have profound and lasting consequences upon the Licensee’s professional career (in Re Shakes, at paragraph 30, citing Kane v. U.B.C. 1980 CanLII 10 (SCC), 1980 1 S.C.R. 1105, Dickson J.).

156. The need to ensure Licensee’s compliance with the Rules of Thoroughbred Racing is in the public’s interest. The potential harm to the public interest if the sanction imposed by the Stewards was stayed exceeds the slight harm (that is, frustration, uncertainty and some inconvenience) to Mr. McKnight resulting from the delay in learning that an ICT could not be performed on the residue sample.

157. For these reasons, the Panel finds as well that the delay Mr. McKnight experienced in trying to obtain an ICT on the residue sample, and the fact that a sufficient residue sample to conduct that test was non-existent, did not preclude him from having a fair hearing before the ORC Stewards.

158. In conclusion, the Panel decides not to exercise its discretion to grant a stay of the proceedings, based on delay.

159. The Panel now considers whether the actions and conduct of the public agencies in question denied him the right to make full answer and defence in a meaningful way, thereby denying him his right to fundamental justice.

b. Inability to Give Full Answer and Defence

160. One thing the CPMA policy paper does contemplate is the possibility that a sample may be used up in the initial testing, leaving no sample residue for re-testing. Implied in this warning is the possibility that there would be insufficient sample residue for re-testing.

161. By extrapolation, it is reasonable to conclude that the same issue could arise if, or when, a residue sample is requested for testing for a different substance, such as an ICT. And, in fact, this is exactly what happened in this case.

162. Mr. McKnight was understandably frustrated when he learned in early July 2015, after the sample had finally been produced in late June of 2015, that there was not enough plasma left in the residue sample to conduct the ICT he sought, and which he believed would “exonerate” him, to use his words.

163. However, even if the residue sample had been provided closer to the time of Mr. McKnight’s initial request for it (that is, in late December 2014), it would not have changed the outcome, that is, that ultimately there was no plasma left in the residue sample to perform an ICT.

164. The fact that this happened, and that it is consistent with the warning contained in the CPMA policy paper, supports the Panel’s further conclusion that Mr. McKnight was not significantly prejudiced by his inability to have an ICT conducted on the residue sample.

165. A positive TCO2 reading is an absolute liability offence under Rules 15.04.05 and 15.06.03(d) of the Rules of Thoroughbred Racing.

166. In addition, Rule 37.01 provides that a TCO2 reading of 39.0 mmol/l or more constitutes a positive reading. Further, Dr. McKenzie testified that this quantity of TCO2 falls at least six standard deviations beyond the normal levels of TCO2 in an EIPH horse. In other words, Rule 37.01 allows for a huge margin of error.

167. Eye of the World tested positive with a reading of 39.7 mmol/l in the December 7^th sample. He was the only horse, out of a total of 13 EIPH program horses to be tested for TCO2 level, which tested positive. As has been noted previously in this decision, Mr. McKnight has never disputed this reading.

168. However, as the (Ontario) Divisional Court’s ruling in the Shakes v. Ontario Racing Commission (“Shakes”) decision provides, a due diligence defence may be raised by Licensees within the context of absolute liability rules, which may be harsh in an individual case.

169. Proven due diligence may go towards penalty or sanction, according to Shakes.

170. The Panel agrees with the Shakes’ principles.

171. Thus, a Licensee should have a reasonable opportunity to have a residue sample independently analyzed, in the face of a positive test result, to assist them in raising a due diligence defence. In part, this rationale underlies ORC Policy Directive No. 2-96 and CPMA Policy Paper P-006.

172. In this case, the Panel finds that reasonable efforts were made by the ORC and RFI to give Mr. McKnight that opportunity.

173. Clearly, Mr. McKnight also had other avenues available to show due diligence on his part. However, he did not seriously pursue them because he was adamant that ICT results could prove due diligence on his part. At both the Stewards’ hearing and these proceedings, Mr. McKnight relied almost entirely on this singular position.

174. Importantly, these other, additional explanations could have supported due diligence on Mr. McKnight’s part and might have been taken into consideration by the ORC Stewards in determining their sanctions at the hearing for the high TCO2 result.

175. For example, there was virtually no evidence as to any and all of the security measures that he had in place at the barn where he stables his horses. This might have allowed the Stewards to consider whether tampering of any kind, for example, by adversaries, strangers, unauthorized access, dissatisfied employees, and the like, meant that third parties had intervened with Mr. McKnight’s horse.

176. Yet, in his interview during the ORC post-race investigation on December 17, 2014, Mr. McKnight expressed concern that the positive TCO2 reading could have resulted from someone tampering with his horse, that is, by administering a sodium bicarbonate “Milkshake” to it prior to race time.

177. By way of further example, he decided not to quarantine Eye of the World, which is an option given him under Rule 37.08 in the face of a positive TCO2 test result. Having done so might have elicited some health reasons that might have accounted for the elevated TCO2 reading on race date.

178. His decision not to quarantine the horse is also somewhat surprising, given his belief that an ICT of the residue would prove that there was a natural (i.e. biological) explanation for the excessive levels of TCO2 in Eye of the World’s blood on the race date.

179. There was limited evidence tendered as to the care and training arrangements Mr. McKnight had in place. Again, this is somewhat unexpected, as at this hearing Mr. McKnight suggested that his horse may have been ill, or was becoming ill, on race day, resulting in the positive test result.

180. However, this potential due diligence defence was also not raised at the Stewards’ hearing, nor proven in the within proceedings.

181. Mr. McKnight’s failure to provide such evidence was inopportune on his part. He knew with certainty, about 2 ½ months in advance of the Stewards’ hearing on September 25^, that he would not have the results of an ICT he had hoped to tender into evidence.

182. What’s more, and as previously discussed, Mr. McKnight also had over 9 months in all to prepare for the Stewards’ hearing.

183. In other words, he had ample time to gather, and was not precluded from gathering together additional evidence to support his due diligence towards Eye of the World.

184. Another point needs to be made on this issue. The Panel cannot determine whether Mr. McKnight was correct in believing that an ICT would exonerate him. Specifically, it cannot find that an ICT would have provided Mr. McKnight with the due diligence defence he had hoped to raise, as he did not present any expert evidence to support that contention.

185. For all of these reasons, the Panel finds that Mr. McKnight was not significantly prejudiced by the actions and conduct of the ORC and/or RFI such that he could not make full answer and defence to the positive TCO2 finding.

186. As a result, the Panel will not exercise its discretion to grant a stay of the proceedings, arising from the alleged denial of Mr. McKnight’s right to fundamental justice arising from his right to make full answer and defence in a meaningful way. Neither does the Panel order that the Certificate of Analysis, dated December 9,2014, be excluded, on the basis of Mr. McKnight’s allegations.

187. The final issue, which the Panel now turns to, is whether it should exercise discretion under Rule 24 of the Rules of Thoroughbred Racing to set aside, in whole or in part, the Stewards’ decision, dated October 3, 2015.

Discretion Under Rule 24.03 of the Rules of Thoroughbred Racing

188. Rule 24.03 of the Rules of Thoroughbred Racing provides as follows:

24.03 If any case occurs which is not or which is alleged not to be provided for by the rules or if the imposition of the rules would prove to be a hardship on any licensee, it shall be determined by the Commission in such manner as it believes is in the best interest of racing. The Commission may also, in its absolute discretion, at any time waive the breach of any of the rules, which waiver or breach the Commission does not consider prejudicial to the best interests of racing.

189. There are three parts to this Rule.

190. Firstly, this Rule gives the Panel the discretion to make a determination if a case occurs “which is not or which is alleged not to be provided for by the Rules”.

191. Secondly, the Panel has discretion if the imposition of the Rules would prove to be a “hardship” on a licensee.

192. If either of these two scenarios is proven, the Panel must exercise discretion in the “best interest of racing”.

193. Thirdly, the Panel is given absolute discretion to waive the breach of any of the Rules, provided the waiver or breach is not “prejudicial to the best interests of racing”.

194. The concept of discretion, which gives the Panel the freedom to decide or judge what should be done in a particular situation, must be exercised fairly, reasonably and responsibly. Generally, it should not be exercised except in extraordinary circumstances that are not otherwise provided for by law.

i. Is this Case provided for by the Rules?

195. In the Panel’s view, the Licensee fails to meet the first part of Rule 24.04 in that Mr. McKnight’s case is clearly provided for in the Rules.

196. Specifically, Eye of the World’s TCO2 level when it raced on December 7, 2014 was 39.7 mmol/l, making it clearly in excess of the level allowable by Rule 37.01.2 of the Rules of Thoroughbred Racing, for EIPH horses. Mr. McKnight candidly admitted to his absolute liability in this regard.

197. The TCO2 blood test was completed in compliance with Rules 37.02 and 37.06.

198. The ORC conducted its investigation and its Stewards heard and ruled on the matter in accordance with their authority under the Rules 15.04.01, 15.04.02.1, 15.04.02.2, 15.04.02.3(a)(b)(i), 15.04.03, 15.04.04(4), 15.05.01, 15.06.01(a), 15.06.03(c)(d), 16.13(c)(d) and 24.04. Also, the sanction imposed followed ORC Policy Directive No. 1-2008, as directed by Rule 37.07.

ii. Would imposition of the Rules prove to be a hardship on Mr. McKnight?

199. The Panel does not find that the imposition of the rules would prove a hardship on Mr. McKnight.

200. “Hardship” means severe suffering, deprivation, adversity or oppression. The term expresses excessive and extreme circumstances.

201. The Panel understands that the positive TCO2 test result, and the related Stewards’ ruling, can have some detrimental ramifications for Mr. McKnight’s professional reputation and might in some ways reflect adversely upon his personal integrity. The Panel has a great deal of sympathy for him in that regard.

202. However, the possibility that there could be negative implications for Mr. McKnight’s character does not fall within the concept of hardship, as explained above.

203. Put simply, hardship cannot be proven on any reasonable interpretation of the facts of this case. Nothing of a severe, extreme, or excessive nature occurred.

204. Rather, everything that transpired in this matter, while frustrating to Mr. McKnight and unjust in his view, fell within the provisions of the Rules and/or the law, as the Panel has concluded.

205. In the event the Panel is wrong in concluding that this case does not come within the Rules and that imposition of the Rules would not prove a hardship to Mr. McKnight, it nevertheless would decline to exercise discretion, as in its view, this would not be in the best interest of racing.

206. Specifically, the Panel has considered the public’s interest in the integrity of horse racing, as well as animal welfare objectives, of the Rules of Thoroughbred Racing, and Mr. McKnight’s personal concerns in this matter. On balance, it finds that the broader aims outweigh the private interest of Mr. McKnight, on the facts of this case.

iii. Should the Panel use absolute discretion to waive the breach of any of the Rules?

207. The Panel decides that it should not exercise absolute discretion to waive Mr. McKnight’s breach of Rule 37.01.2 of the Rules.

208. Mr. McKnight is a professional horse trainer and took his duties as a Licensee seriously. Admirably, for over 40 years he maintained a pristine record for drug and alcohol testing of his horses.

209. Then, on December 7, 2014, his horse tested positive (that is, 39.7 mmol/l) for TCO2: this was a clear breach of the Rules, which Mr. McKnight admitted and which resulted in the Stewards ruling that is at issue, amongst other things, in his motion before the Panel.

210. Not surprisingly, Mr. McKnight was quite upset by these test results. Indeed, at the hearing, he seemed heart-broken over this development.

211. As a result, Mr. McKnight looked for a possible way to “exonerate himself” by showing a natural reason for the high TCO2 in his horse, and learned about the ICT procedure.

212. Unfortunately for Mr. McKnight, there was insufficient residue sample to do an ICT. In any event, as the Panel has found, above, there was no evidence that the results of that test procedure would have vindicated Mr. McKnight.

213. He asked for the residue sample in an appropriate manner and encountered some delay before obtaining the residue sample, which the Panel has also determined was reasonable, in all of the circumstances.

214. The Panel has found, as well, that Mr. McKnight was not significantly prejudiced by his inability, ultimately, to have the residue sample subjected to an ICT.

215. Neither did he suffer from any procedural injustice in relation to his efforts to obtain a residue sample for ICT testing, for reasons the Panel has given, above.

216. In its reasons, above, the Panel has discussed, too, the important public interest and industry reasons for holding Licensees, like Mr. McKnight, to an absolute liability standard in matters such as this.

217. Further, the Panel has also concluded that Mr. McKnight had a fair hearing before the Stewards.

218. In the result, he was able to make full answer and defence to issues arising from this matter.

219. The Panel may exercise absolute discretion to waive a Licensee’s breach, provided it is not prejudicial to the best interests of racing. (Rule 24.03)

220. Based on the Panel’s findings in this case, summarized above, for the Panel to waive Mr. McKnight’s breach of the Rules would damage the best interests of racing.

221. Accordingly, the Panel declines to use the absolute discretion afforded it by Rule 24.03.

Orders

222. After carefully considering all the credible evidence in this case and the jurisprudence applying to this matter, the Panel makes the following rulings:

a. Mr. McKnight’s motions for a stay of proceedings are dismissed;

b. his motion for exclusion of evidence is dismissed;

c. his application for utilization of the ORC’s discretionary powers is denied;

d. his appeal is denied; and,

e. the Stewards’ penalty, dated October 3, 2015, is affirmed in its entirety, that is, that Mr. McKnight:

i. shall serve a 60 day suspension (which the Panel notes was in fact served from October 12 through December 10, 2015);

ii. shall pay a fine in the sum of $1,500.00, payable when the suspension is concluded; and,

iii. shall have standard terms of probation added to his Licence for a period of two years following the conclusion of his suspension.

Dated at Toronto, Ontario, this 1^st day of February 2016.

_____________________ _______________________ ____________________

Elmer Buchanan Anthony Williams S. Grace Kerr

Chair Vice Chair Commissioner