While most professional misconduct does not require the proof of intent to do something wrong, generally evidence of taking all proper precautions will result in no finding being made. However, there are some types of professional misconduct that prohibit certain conduct, regardless of any precautions taken. In horse racing, for example, there is an absolute rule that the horse not test positive for certain substances on race day. In Director, Ontario Racing Commission v Ontario Racing Commission, 2016 ONSC 3312, a horse tested positive for a pain killer administered well before the recommended cut-off time for that drug. The Divisional Court held that the wording of the provision made it clear that ensuring no amount of the substance was in the horse’s blood stream was an absolute liability “offence” and as such the trainer could not rely on a defence that he had taken all reasonable precautions.
Therefore, the wording of the definition of misconduct is important.
However, on the issue of penalty, the sanction imposed was quite modest (i.e., only removal of first place standing on the race and the resulting purse) because of the circumstances. This result of imposing a lower than expected sanction in an absolute liability matter where there was evidence of some due diligence was expressly upheld in a Divisional Court decision released a few days earlier: Ontario (Racing Commission) v Durham, 2016 ONSC 2490.