Petrowski v Horse Racing Alberta, 2013 ABQB 267

Court of Queen ’ s Bench of Alberta Citation: Petrowski v Horse Racing Alberta, 2013 ABQB 267 Date: 20130503 Docket: 1303 00038 Registry: Edmonton Between: Joan Petrowski Applicant - and - Horse Racing Alberta and Horse Racing Alberta Appeal Tribunal Respondents _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice L.D. Acton _______________________________________________________ I.

Introduction [ 1 ] Joan Petrowski applies to set aside or vary the six month suspension and fine imposed upon her by the Horse Racing Appeal Tribunal (the Tribunal) on appeal from a disciplinary decision by the Board of Stewards. The Horse Racing Alberta Act, RSA 2000, c. H-11.3 establishes a statutory scheme for the regulation of horse racing in Alberta, setting out a disciplinary process, and giving power to Horse Racing Alberta to make rules governing, among other things, prohibited activities.

The Rules prohibit racing a horse that tests positive for a prohibited drug; however the Rules do not set out penalties. Instead Horse Racing Alberta issued Penalties for Equine Drug and TCO 2 Guidelines (the Penalty Guidelines), under which the suggested minimum penalty is a six months ’ suspension and a fine for a first offence.

[ 2 ] Ms. Petrowski argues that the Tribunal: 1. breached the duty to be fair by copying its reasons almost entirely from an earlier unrelated Tribunal decision; 2. fettered its discretion by following the Guidelines rather than considering relevant evidence; and 3. reached an unreasonable conclusion. II. Factual Background [ 3 ] Ms. Petrowski owns and trains thoroughbred race horses, primarily in Alberta. She is 69 years old and has been training thoroughbred race horses for more than 40 years.

During her entire career, which included starting horses in more than 8700 races, she has never had a positive drug test in a horse under her care. [ 4 ] On July 21, 2012, Ms. Petrowski started a four-year-old filly, Panaramic Smile, in a race at Northland ’ s Park in the City of Edmonton, where the horse placed first. Because the horse won the race, the horse was required to provide a urine sample to a test inspector of the Canadian Pari-Mutuel Agency, an agency of the Federal Department of Agriculture under the Pari-Mutuel Betting Supervision Regulations.

The test results were positive for the drug Lidocaine. [ 5 ] Lidocaine is a class 2 drug under the Uniform Classification Guidelines developed and published by the Association of Racing Commissioners International Inc. (RCI). The Rules Governing Horse Racing in Alberta promulgated under the Act (the Rules) adopted the RCI classifications set out in the Uniform Classification Guidelines , but not the RCI Penalty Guidelines. While Lidocaine has a legitimate and lawful use at race tracks for therapeutic purposes, under the Rules, a horse cannot be treated with it within 24 hours of a race.

Further, under the Rules, persons are prohibited from administering substances to a race horse and a person also violates these rules if they race a horse and a test detects a drug, medication, or foreign substance in the horse ’ s system. [ 6 ] Rule 195 sets out the rules for findings and sanctions:

(1) The Judges/Stewards Board may make an order, ruling or direction if it finds that: (

a) a person has violated the Act, these or any other rules, track rules or conditions ...

(2) The Judges/Stewards Board may impose any one or more of the following sanctions: (

a) a fine not exceeding $100,000.00; (

b) suspend a license for a definite or indefinite period; (

c) ban a person from holding a license for a specific period of time or in respect of specified horse races or race meetings; (

d) impose conditions on a license or conditions to be met before any other license is issued to the person; (

e) direct the forfeiture or return of purses; (

f) disqualify a horse in whole or in part; (

g) declare a race to be no contest; (

h) impose such other sanction as the circumstances warrant.

(3) A decision can be made to come into effect immediately or on a future specified date, whichever the Judges/Stewards Boarddecides. [7] These Rules were published in the Alberta Gazette in accordance with s 22(3) of the Horse Racing Alberta Act. [8] The Penalty Guidelines for equine drug offences was not published as a Rule pursuant to s 22(3) of the Horse RacingAlberta Act and are therefore not binding. The Penalty Guidelines provide for a suspension of six months to one year and a $4,000.00fine when there is the Certificate of Positive Analysis for a drug such as Lidocaine and it is a first offence.

The RCI Penalty Guidelinesare much lower. The Board of Stewards applied that Penalty Guideline from Horse Racing Alberta for a first offence: six months and$4,000.00, believing that they were bound by the Guidelines. Rule 195(2), however, grants the stewards and Tribunal broad discretion toimpose a fine up to $100,000.00 and to suspend a license for a definite or an indefinite period of time. [9] Ms. Petrowski did not appeal the conviction on the offence.

She accepts that it is either a strict liability or absolute liabilityoffence under s 15 of the Horse Racing Alberta Act which states: Subject to the rules, where a contravention of this act occurs with respect to a race horse, the trainer of record for that race horse is liablefor that contravention and is subject to any penalty, sanction or direction that may be made in respect of that contravention. [10] The Applicant submits that the Tribunal failed to exercise its discretion, and argues that the Tribunal gave no reasons,because the reasons given, after reserving for seven weeks, are virtually identical to the reasons given in another unrelated, but similardecision.

Further, the decision is unreasonable. III. Issues [11] The issues are: 1. What is the standard of review? 2. Did the Tribunal breach the duty to be fair and principles of natural justice by: a. failing to exercise its discretion, or otherwise fettering its discretion; b. failing to give reasons? 3. If not, was the Tribunal’s decision reasonable? Standard of Review [12] Failure to exercise discretion is a question of the duty to be fair and breaches the principles of natural justice, invoking theprinciples in Baker v Canada Minister of Citizenship and Immigration, (SCC), [1999] 2 SCR 817 at para 43.

WhileBaker also suggested that the failure to give reasons may give rise to a breach of natural justice, the Supreme Court of Canada inNewfoundland and Labrador Nurses Union v Newfoundland and Labnrador (Treasury Board), 2011 SCC 62 made it clear (at para20) that Baker “ did not say that reasons were always required, and it did not say that the quality of those reasons is a question ofprocedural fairness.” The standard of review on the duty to be fair is correctness.

However, the question of whether the reasons given inthe decision of the Tribunal are sufficient, comes under the test of reasonableness set out in Newfoundland Nurses, where the SupremeCourt said (at para 22): But where, as here, there are reasons, there is no such breach. Any challenge to the reasoning/result of the decision should therefore bemade within the reasonableness analysis.

[ 13 ] Important guidance from the Newfoundland Nurses case in applying the reasonableness test to examining the sufficiency of reasons comes from the following comments (at para 9): ... Reasons must be sufficient to permit the parties to understand why the tribunal made the decision and to enable Judicial Review of that decision.

The reason should be read as a whole and in context and must be such as to satisfy the reviewing Court that the Tribunal grappled with the substantive live issues necessary to dispose of the matter. [ 14 ] And further, in para 12, the Supreme Court quotes from Professor Dyzenhaus who states: “ Reasonable ” means here that the reasons do in fact or in principle support the conclusion reached.

That is, even if the reasons in fact given do not seem wholly adequate to support the decision , the Court must first seek to supplement them before it seeks to subvert them . (Emphasis in original) Did the Tribunal exercise its discretion? [ 15 ] In my view, the Board of Stewards may have failed to exercise their discretion, and simply applied the Penalty Guidelines as if they were, indeed, a minimum penalty contrary to a Rule published in the Alberta Gazette . There was no analysis as to why, but an admission in the record was that this was their practice because they had been told to do this.

However, the Board of Steward ’ s decision is not before me; the Tribunal ’ s decision is. [ 16 ] The Tribunal ’ s reasons summarize Ms. Petrowski ’ s argument before them. In particular, the reasons recite Ms. Petrowski ’ s assertion that the Penalty Guidelines do not have the force of statutory instruments and that the Tribunal had the discretion to determine sanctions. The Tribunal went on to note, in virtually identical language to an earlier, unrelated decision, that adopting the Penalty Guidelines ensured consistency and that the sanctions imposed on Ms.

Petrowski “ fall within the parameters of [the Penalty Guidelines] ... and that the guidelines are reasonable given they are applied “ across the board ” and ensure that penalties for similar infractions are consistent in this jurisdiction and reflect the low end of the guidelines presented. ” [ 17 ] In my view, one must read these reasons as demonstrating that the Tribunal understood it had discretion to vary from the Penalty Guidelines, but that it chose not to do so. Unlike the Board of Stewards, who appeared to believe they were bound by them, the Tribunal, by setting out Ms.

Petrowski ’ s submissions, recognized that the Penalty Guidelines did not have statutory force, but it determined that, in the interests of consistency, it would uphold their application. I therefore dismiss the argument that there was a breach of the duty to be fair as a result of fettering discretion. Did the Tribunal provide reasons? [ 18 ] Ms. Petrowski argues that the Reasons do not comply with fairness because much is identical to the reasons in another unrelated, but similar case.

The Tribunal relies on the decision in University of Alberta v Chang, 2012 ABCA 324 to assert that reasons that are merely copied do not disclose the line of analysis used (at para 22). This decision is distinguishable from Chang . The Court of Appeal there held that it was not possible to determine any line of analysis that the judge used in coming to his decision.

Here, it is clear from the reasons that the Tribunal ’ s analysis chose consistency as the basis for its decision. [ 19 ] It is unsurprising that a Board would use a previous decision as a template, particularly when the facts are similar and the rationale - consistency - is the same. A template version of reasons in which relevant facts are inserted where necessary is not the same as cutting and pasting the submissions of the parties, as in Chang . A template for reasons has its advantages, and a few disadvantages, like the inappropriate second paragraph in the Reasons.

The “ Reasons ’ Template ” incorporates a paragraph relevant to the unrelated decision, that is to say para 2, but not relevant to Ms. Petrowski. In my view, this problem is related to the reasonableness of the decision, not to whether there is a breach of the duty to be fair.

[ 20 ] I conclude that notwithstanding the fact that the Tribunal used a template for its reasons, the reasons still constitute “ reasons ” within the meaning of Baker , and therefore they do not breach the duty to be fair, and must be assessed on the basis of reasonableness. Are the Reasons reasonable? [ 21 ] In my view, it is difficult to follow the line of reasoning used by the Tribunal. The Tribunal, by summarizing Ms. Petrowski ’ s argument that it has discretion to depart from the Penalty Guidelines, acknowledged that it was not bound by them.

However, the Tribunal provided no independent analysis of why it chose consistency in penalties without mentioning the particular facts and circumstances surrounding Ms. Petrowski ’ s offence. [ 22 ] Not only was this Ms. Petrowski ’ s first offence, she had been training thoroughbred race horses for more than 40 years and had started horses in more than 8700 races. Ms. Petrowski ’ s veterinarian testified he did not administer Lidocaine to Panoramic Smile.

The veterinarian testifying for Horse Racing Alberta indicated that, based on the records, the horse was not lame, and Lidocaine would not have improved the horse ’ s racing performance. Two character witnesses testified to Ms. Petrowski ’ s character and professionalism as a horse owner and trainer.

Further, the Northlands veterinarian testified that no further investigation into how Lidocaine might have been administered was conducted beyond the urine tests. [ 23 ] The Tribunal considered this evidence and noted under the Act and the Rules the trainer of record is responsible, even if the drug was given to the horse by a third party or if the trainer was unaware the drug was given. This was a reasonable conclusion to take with respect to culpability.

However, the Tribunal did not consider or analyse this evidence in its reasons related to whether the Guideline penalty was appropriate in these circumstances. [ 24 ] Moreover, paragraph 2 of the Reasons appears to have been either copied directly from the earlier unrelated decision or as part of the decision template. Ms. Petrowski ’ s name is inserted in place of a name from another decision, and she is quoted as asserting “ she was only the ‘ trainer on paper ’ ” . However, Ms.

Petrowski never made that assertion. [ 25 ] I conclude that the Reasons do not establish that the Tribunal grappled with the substantive live issues. Rather, it appears to have simply used a template of earlier unrelated reasons, listed the evidence heard by it, summarized Ms. Petrowski ’ s submissions, and then implemented a decision based solely on consistency. It provided no analysis or consideration of the evidence lead by Ms. Petrowski on why the guidelines should not be applied in her particular circumstances. I conclude that the decision was unreasonable. V.

Conclusion [ 26 ] The application for judicial review is granted and the decision of the Appeal Tribunal is quashed. Heard on the 13 th day of March, 2013. Dated at the City of Edmonton, Alberta this 3 rd day of May, 2013.

L.D. Acton J.C.Q.B.A. Appearances: James K. McFadyen, Q.C. Parlee McLaws LLP For the Applicant Mr. Thomas R. Owen Owen Law for the Respondent Horse Racing Alberta Appeal Tribunal Mr. Steve Eichler Field LLP for the Respondent Horse Racing Alberta