IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;

AND IN THE MATTER OF THOROUGHBRED TRAINER

SID ATTARD

Thoroughbred trainer Sid Attard appealed Stewards' Ruling Number TB 218/2003 wherein he was fined the sum of $1,000 for being disrespectful and threatening a Racing Official (Official Veterinarian) in the performance of his duties in front of the grandstand prior to the running of the 5th race on June 27, 2003 at Woodbine Raceway contrary to Rules 15.11.1 and 16.05(a),(b) and (c) of the Rules of Thoroughbred Racing.

Vice-Chair Larry Todd and Commissioners Patricia Bullock and Brenda Walker convened on November 7 to hear the appeal.

Donald J. Catalano, Q.C. appeared on behalf of Mr. Attard and Don Bourgeois appeared for the Administration.

Upon hearing the evidence of Dr. John McNie, DVM and Sid Attard, upon reading the exhibits and upon hearing submissions on behalf of the parties, the Commission dismissed the appeal as the sole issue before the panel was substantially hypothetical and moot. The panel noted that it did not make any conclusion as to whether or not Mr. Attard threatened Dr. McNie on June 27, 2003.

The Commission provided written reasons for its decision which are attached to this Ruling.

BY ORDER OF THE COMMISSION

Jean Major

Executive Director

REASONS FOR DECISION

This is an appeal from Ruling No. TB 218/2003 whereby trainer, Sid C. Attard, was fined $1,000.00 "for being disrespectful and threatening" to a racing official, Dr. John McNie, on June 27, 2003.

At this hearing, Donald J. Catalano Q.C. appeared for trainer Attard and Mr. Bourgeois appeared for the Administration and the Director of Racing.

As the hearing evolved, we were advised by counsel that there was an agreement to a number of issues and in particular as follows:

(a) the amount of the fine was not in dispute and would be paid regardless of the result;

(b) Mr. Attard admitted being disrespectful contrary to Rule 16.05(c) of the Rules of Thoroughbred Racing;

(c) Mr. Attard admitted that the $1,000.00 fine assessed by the stewards in the original ruling was appropriate; and the only issue proposed for adjudication was the inclusion of the word "threatening" in the ruling of the stewards and whether Mr. Attard had issued such a threat at or to the official veterinarian.

Mr. Bourgeois confirmed to us that the Administration was entirely satisfied with the $1,000.00 fine levied by the stewards and was not cross-appealing in any respect.

In short, we are being asked to adjudicate whether Mr. Attard uttered the words "I'll hit you" towards the person of Dr. McNie. Matters relating to the alleged "I'll hit you" took place in a sequence of events surrounding the scratching of one of Mr. Attard's horses on the track just prior to the fifth race at Woodbine on June 27, 2003. It was this very same sequence of events that is admitted by trainer Attard to comprise the offence of showing "disrespect by word or action to any official of racing".

Counsel were specifically asked in argument to address the issue of whether the within appeal and adjudication was moot. We stated to counsel our concern that a finding one way or the other on the only issue before us would have no practical effect on the result. We queried whether Administrative Tribunals and regulators should be rendering what was in effect an academic pronouncement.

The Administration through Mr. Bourgeois emphasized that trainer Attard has to accept responsibility for his alleged threat of physical violence towards Dr. McNie. We are, however, faced with trainer Attard accepting responsibility by his unequivocal acknowledgment through counsel and his evidence of inappropriate conduct and disrespect in a somewhat heated discussion with a racing official. Mr. Attard has accepted the propriety of the $1,000.00 fine for his conduct and it would seem to us that he is being accountable for this conduct.

Mr. Catalano was even briefer in his response to our query as to whether the issue was moot and/or without practical effect. He urged upon us that there was a significant difference between "threats" and "disrespect". Mr. Catalano, however, did not assist us with our concern that Mr. Attard's censure would not be altered by the finding he sought from this panel.

Exhibit 2 before us shows clearly that trainer Attard between 1987 and 2000 has been reprimanded and censured by the stewards on four occasions for being "unsportsmanlike", "disrespectful", and "the aggressor in an altercation". The largest penalty for these prior violations was a $500.00 fine.

Given trainer Attard's record for this type of inappropriate conduct over a lengthy career, we would urge that the type of unbecoming conduct towards racing officials that is admitted before us could be stifled by trainer Attard on a permanent basis. Had there been a cross-appeal by the Administration, we might well have listened responsively to submissions centering on a more severe penalty for the admitted behavior.

It has been said that "good public administration is concerned with substance rather than form.....".

Mobile Oil Canada Limited et al v. Canada-Newfoundland Offshore Petroleum Board (1994) 1994 CanLII 114 (SCC), 111 D.L.R. (4th) 1 (S.C.C.)

In the above decision, the Supreme Court of Canada cited with approval R v. Monopolies and Mergers Commission [1986] 1 W.L.R. 763 (C.A.) where a narrow discretion is recognized to provide no remedy when the result will be inevitably the same.

We choose to exercise that discretion to not entertain the one issue put before us in this appeal. We conclude that the issue is substantially hypothetical and moot. We rely on the following to buttress our conclusion that there is no live controversy affecting the parties:

(e) There are no ongoing collateral consequences for trainer Attard from findings with respect to threatening, one way or the other; and

(f) There is no public interest served in resolving in this peculiar factual matrix whether trainer Attard threatened Dr. McNie or not.

Accordingly, we must dismiss this appeal. In so doing, however, we are not to be taken to have made any conclusion whatsoever as to whether trainer Attard threatened Dr. McNie on June 27, 2003 on the race course at Woodbine. This latter observation should be included in any formal ruling to be issued.

Dated at Toronto, this 13th day of November, 2003.

original signed by Larry Todd

Larry Todd

Vice Chair