Facts are facts – where an administrative body’s rules create a strict liability offence, the fact of the offence results in liability. There is no liability defence of due diligence available

19. January 2021 0

Ontario Superior Court of Justice upholds horse racing appeal panel decision not to waive a violation of the rules of thoroughbred racing because the applicant had not administered a banned substance to his horse, the detection of which resulted in the rule violation.

Administrative law – Decisions reviewed – Horse Racing – Judicial review application – Standard of review – Reasonableness – Government – Gaming and betting

Pascoe v. Ontario (Horse Racing Appeal Panel), [2020] O.J. No. 4432, 2020 ONSC 6227, Ontario Superior Court of Justice, October 15, 2020, K.E. Swinton, N.L. Backhouse and M.R. Labrosse JJ.

On January 15, 2020, the Horse Racing Appeal Panel dismissed an appeal from a decision finding the applicant had violated the Rules of Thoroughbred Racing (the “Rules”) as a horse he had trained tested positive for the presence of a banned substance.  The Panel dismissed the appeal, but varied the penalty to reduce the imposed fifteen day suspension to seven days (the “Decision”).  The applicant sought judicial review of the Decision.  The application was dismissed, with costs.

The applicant trains racehorses.  He is licensed by the Alcohol and Gaming Commission of Ontario.  Following a race on October 1, 2018, the applicant’s horse, Arising Miracle, had enhanced urine testing done and tested positive for the substance Clenbuterol.  Pursuant to the Rules, it is an absolute liability offence for any trainer whose horse(s) tests positive for any substances determined to be non-therapeutic.  Pursuant to Quarter Horse Directive No. 1-2015: Enhanced Testing for Clenbuterol, it is a violation of the Rules where Clenbuterol is detected at any level in either urine or blood.

Following Arising Miracle’s positive test, the Commission Stewards imposed a fifteen day suspension and a $500 fine.

The applicant appealed that decision to the Horse Racing Appeal Panel.  He gave evidence he had never administered Clenbuterol to Arising Miracle, his veterinarian had never prescribed it, and he argued that the amount of the drug detected was minimal and could not have enhanced Arising Miracle’s performance.  He sought a waiver of the applicable rule.

The Panel found the drug had likely been administered months before the applicant had custody of the horse, which he took in the summer of 2018, and that it was not administered by him.  However, the Panel held it did not have the authority to waive the rule creating an absolute liability offence.

On application for judicial review, the applicant argued the Panel erred in imposing a penalty after finding the applicant was not at fault for the positive drug test.  The Court held that, as there was a positive test and the applicant did not satisfy the Panel there had been environmental contamination, it was reasonable to find liability had been established.  The Panel’s decision in this case was consistent with other cases in considering due diligence when determining the appropriate remedy, but not liability.  The Panel considered the applicant’s good character and due diligence and that the applicant had taken steps to safeguard the horse in reducing the original suspension by 8 days.  The Court held that penalty was reasonable and dismissed the application, with costs to the respondent.

This case was digested by Mollie A. Clark, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Mollie A. Clark at mclark@harpergrey.com.

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