Absolute Liability Rules in Administrative Law

Doping in sport is a scourge. Eradicating is not easy. The awards for successful doping are very high. Sporting organizations find themselves in a difficult position. Testing everyone and everything is not possible. And often, a plausible (though not necessarily truthful) excuse can be offered in defence of an athlete who has registered a positive result.

One means of taking a hard line on doping is to introduce an absolute liability rule, one against which no defence of due diligence can be raised. (In Canadian law, there is a distinction between strict liability offences, where the defence of due diligence can be raised, and absolute liability offences, where the defence cannot be raised: see here.) This is the subject of a recent decision from the Ontario Divisional Court, Shakes v. Ontario Racing Commission, 2013 ONSC 4229.

The applicant is a trainer whose horse tested positive for several prohibited substances. A medication had been prescribed for the horse. Ingestion of this medicine accounted for the positive test. Yet the trainer was adamant that, consistent with the guidelines of the veterinarian, he had administered the medication more than 24 hours before the race. Ordinarily, the medication would have left the horse's system and not triggered a positive test.

This was a violation of Rule 26.02.02 of the Rules of Standardbred Racing, 2008, a rule which, moreover, is stated to be an absolute liability offence. These rules were issued by the Commission under the Racing Commission Act.

On judicial review, the applicant argued that the absolute liability rule was outside the statutory authority of the Commission. Swinton J. held that the Commission had jurisdiction to implement the rule and that the rule was reasonable.

The applicant noted that in other cases, courts had implied a defence of due diligence into statutory offences. These were inapposite, however:

[26]      The cases on which the applicant relies are not directly applicable.  In those cases, the courts were engaged in an exercise of statutory interpretation, applying the presumption of strict liability from Sault Ste. Marie and interpreting the applicable statute to determine whether that presumption was rebutted.  They were not dealing with the scope of an administrative tribunal’s authority to make rules.

There was no doubt here that the Commission had the authority to enact a rule in respect of doping. That being so, the application of the presumption against absolute liability was really a matter for the Commission in developing the rule. It went to the reasonableness of the rule rather than to the authority to adopt it:

[33]      The Commission emphasized that the use of performance enhancing drugs in horse racing strikes at the integrity of racing and undermines public confidence, with a negative effect on track attendance and wagering.   The Commission discussed the difficulties of enforcement and concluded that a strict liability regime was not effective on a systemic level, and doping cases had been on the increase.  The Commission observed that it is easy for a trainer or owner to testify that he or she took reasonable steps to safeguard the medication in question, and it is very difficult to prove in a particular case that the individual is lying.

[34]      The Commission was of the opinion that a due diligence test would protect too many people who deliberately administer performance enhancing substances to their horses.  While the approach may be harsh in an individual case, the Commission noted that due diligence is taken into account when assessing the appropriate penalty.

[35]      In my view, the absolute liability rule, while harsh, is reasonably justified in the public interest to protect horse racing for the reasons set out in the Commission’s decision.  As the Court of Appeal noted in Sudbury Downs at para. 49, the Commission, when acting in the public interest, considers the interest of horse racing generally.

Swinton J.'s analysis is convincing, both on the merits and analytically. As she pointed out, the applicant was asking her to lay down a general principle that absolute liability rules cannot be enacted by administrative bodies unless there is express statutory authority to do so. This principle would doubtless be attractive to those who would apply the ordinary principles of statutory interpretation to the decisions of administrative bodies. For those of us who favour a deferential approach, however, this principle is only one of many which an administrative body should take into account in formulating policy.