IN THE MATTER OF THE ONTARIO RACING COMMISSION ACT, 2000,

S.O. 2000, c.20

AND IN THE MATTER OF STANDARDBRED LICENSEE, PAUL MEGENS

AND IN THE MATTER OF A DIRECTOR’S NOTICE OF PROPOSED ORDER TO REVOKE LICENSE DATED APRIL 4, 2002

Paul Megens requested a hearing under section 22 of the Racing Commission Act, 2000, in respect of the Notice of Proposed Order issued by the Deputy Director of Racing on April 4, 2002, proposing to revoke Mr. Megens’ licence on the basis that his involvement in a fixed race at Fraser Downs on April 22, 1999, provided reasonable grounds to believe that he would not act in accordance with law, integrity or the public interest, pursuant to section 21 of the Racing Commission Act, 2000.

An earlier hearing was held and an order made upholding the proposed order on October 25, 2002, which order was subsequently set aside by the Divisional Court, and the matter remitted to this Commission.

Mr. Megens also moved before the Commission for an order staying these proceedings.

A Panel of this Commission consisting of Vice-Chair Todd and Commissioners David Gorman and George Kelly convened on May 12^th to hear the motion and then on May 19^th, July 8^th and August 25, 2005, to hold the hearing. Brendan Van Niejehuis and Aaron Dantowitz represented the Administration, and Jeffrey Streisfield represented Mr. Megens.

On hearing the evidence of Rick Murchison, Brent Stone, Grant Hollingsworth, Tim Brown, Paul Megens and William Megens, and on reading the exhibits filed and on hearing the submissions of counsel, the Commission ordered that the Proposed Order be quashed and set aside, and determined that the motion to stay the proceedings was thereby made moot.

The Commission gave written reasons for its decision, a copy of which is appended to this Ruling.

DATED this 16^th day of November 2005.

BY ORDER OF THE COMMISSION

John L. Blakney

Executive Director

REASONS FOR DECISION

OVERVIEW

The Deputy Director of Racing issued a Notice of Proposed Order to Revoke the owner/trainer and driver’s license of Paul Megens under date of April 4, 2002. The basis of the Notice of Proposed Order was that Mr. Megens conspired with others to fix the seventh race on April 22, 1999 at Fraser Downs Racetrack in British Columbia. It was and is the position of the Deputy Director of Racing that “the fixing of a race is activity that is contrary to the best interests of racing…” and provides “reasonable grounds to believe that Mr. Megens will not act in accordance with law, or with integrity, honesty, or in the public interest”.

The full particulars of the Notice of Proposed Order are found in Exhibit 1, Tab 1.

This matter was first heard in October 2002 by a Panel of the Ontario Racing Commission. The majority and dissenting Reasons for Decision were delivered on October 25, 2002.

Thereafter, an Application for Judicial Review was launched by Mr. Megens. This application was successful, see Megens and the Ontario Racing Commission 2003 CanLII 26509 (ON SCDC), 2003, 64 O.R. (3d) 142 (Ont.Div.Ct.).

The Divisional Court, as above, quashed the Order of the Commission dated October 25, 2002 and remitted the issue of the Notice of Proposed Order “to the Commission for such further action as it may deem advisable.” The Court continued and directed that, “If there are any further proceedings, they will be before a Panel differently constituted.”

As a consequence of the above remittal by the Divisional Court, this matter came on for hearing on May 12^th, May 19^th, July 8^th and August 25, 2005. The new Panel consisted of Commissioner Kelly, Commissioner Gorman, and the Vice Chair.

The proceedings on May 12, 2005 were in the form of a Notice of Motion for a stay of the proceedings.

The Administration was represented throughout by Brendan Van Niejenhuis and Aaron Dantowitz. Mr. Megens was represented by Jeffrey Streisfield.

We heard evidence on behalf of the Administration from Rick Murchisan, a CPMA official, Brent Stone, an investigator with the Ontario Racing Commission, Tim Brown, a driver in the subject race, and Grant Hollingsworth, a second driver in the race in issue.

In support of his case, Mr. Megens gave evidence as did William Megens.

Pursuant to the provisions of the Racing Commission Act, 2000, and Section 22 thereof, this Panel has the right to “confirm or set aside the proposed Order” and/or direct the Director to take such action as the Panel considers the Director ought to take “to give effect to the purposes of the Act.” Section 22(7) of the Racing Commission Act specifically and expressly permits that this Panel “may substitute its opinion for that of the Director”.

STANDARD OF REVIEW FOR DIRECTOR’S DECISIONS

We are of the view that the Commission should not lightly interfere with the Decisions of the Director or his delegates. Nevertheless, the statute, as above, provides the necessary jurisdiction and mandate to do so if a Panel of the Commission is of the view, after reviewing all the evidence, that the proposed Order of the Director should not have been made.

We are additionally of the view that when the matter involves the right of a licensee or an applicant for a license to earn a living by participating in the horse racing industry, the upholding of a Director’s proposed order or Notice to Revoke should be based on clear and cogent evidence. In this respect, we adopt the views of the Ontario Divisional Court in Coates v. Ontario (Registrar of Motor Vehicle Dealers and Salesmen) 1988 CanLII 4555 (ON HCJ), 1998, 65 O.R. (2d) 526 at 536 and 537 where it was stated that:

“Nothing short of clear and convincing proof based on cogent evidence will justify an administrative tribunal in revoking a license…to gain a livelihood in business.”

We note that the above was the standard under Section 22 of the Racing Commission Act 2000 for a review of proposed decisions of the Director in Re: Schickendanz [2001] O.R.C.D. No. 25, a decision of the last Chair.

FACTUAL BACKGROUND AND EVIDENCE

Paul Megens, Tim Brown and Grant Hollingsworth all drove standardbred race horses in the seventh race at Fraser Downs in Surrey, B.C. on April 22, 1999. None of these drivers and their horses finished in the top three. There was an investigation by the regulator in British Columbia into the possibility that the race results had been fixed.

In the hearing before us, it was conceded by counsel for Mr. Megens that this particular race at Fraser Downs was a “fixed” race in respect of Mr. Brown’s participation with the horse Extra Innings. The issue remains as to whether the “fix” involved others and, in particular, Paul Megens.

We were told by Mr. Van Niejenhuis in his opening and argument that the evidence to be given by the representative of the Canadian Pari-Mutuel Agency (C.P.M.A.) would show “beyond any real doubt” that this was a fixed race. We were told that a party named Ken Hulan had purchased a large number of winning triactor tickets.

Rick Murchison was the agency officer of CPMA at Fraser Downs on April 27, 1999. The particulars of the field in the seventh race on April 22^nd are delineated at Exhibit 1, Tab 6. It is suffice to say that the actual order of finish at the end of the race was No. 1, a 10-1 shot first, No. 2, a 3-1 wager second, and No. 8, third at closing odds of 10-1.

Tim Brown drove the nine horse, Extra Innings, who closed as the second favourite at 5-2. Mr. Megens drove the six horse, Red Star Triumph, who left the gate at closing odds of 12-1. Grant Hollingsworth drove the seven horse, Black Opal, who went off as the favourite at 2-1.

It is significant to note that it was the performance or lack thereof of Mr. Brown’s and Mr. Hollingsworth’s horses, as above, (#9 and #7 respectively) that triggered Mr. Murchison’s interest in the wagering patterns of the race. Mr. Murchison’s attention was not drawn to the performance of Red Star Triumph and Mr. Megens, who finished ninth, apparently substantially due to Mr. Megens’ horse going off at 12-1 odds.

The triactor pool in the subject race was approximately $14,000.00 with a $1.00 winning ticket payout equating to $238.00.

Before the posting of the winning wagering payoff prices for this race, Mr. Murchison noted that in his view the “triactor of 1, 2 and 8 paid less than half of what it should have”.

As a consequence of the above observation, Mr. Murchison ordered from the wagering computers a transaction file search of the winning combinations. This report detailed times, locations and wagering sites of all the winning triactor tickets.

Within minutes of the race being over, Mr. Murchison “locked” the remaining uncashed winning triactor tickets. The result of this was that all outstanding triactor tickets could not be cashed. The evidence was to the effect that five of these winning tickets remained by the time of the lock down.

Some time later in the evening, a patron in the club house on the race track property tried to and did cash one of the locked tickets. This person was eventually identified as Ken Hulan. The four remaining winning triactor tickets remain locked and uncashed to this date.

Mr. Murchison’s investigation further disclosed that the four uncashed tickets were purchased by Ken Hulan, although it is acknowledged that no one saw Hulan making any or all of the subject wagers. Mr. Murchison’s phraseology was that these wagers were “connected” with Mr. Hulan through the tracing of betting vouchers.

Mr. Murchison filed as Exhibit 4 his spreadsheet analysis of “all the bets that are associated with Ken Hulan based on the tote records”. A detailed review of Exhibit 4 shows the following:

(a) Mr. Hulan bet $1,026.00 through seventeen separate wagers.

(b) Fifteen of the seventeen Hulan triactor wagers included the #7 horse driven by Grant Hollingsworth prominently and regularly in the various combinations. Additionally, Mr. Hollingsworth’s horse was slotted on top in many of the wagers. These wagers had a total cost of $960.00.

(c) One of the wagers by Mr. Hulan included the #6 horse driven by Paul Megens in the 2nd and 3rd position on the ticket. This was part of a $60.00 wager.

(d) Mr. Hulan’s winnings, if all tickets “associated” with him were cashed, would have been $3,811.20 from a wagering cost base of $1,026.00.

(e) From a total of $44.00 worth of winning triactor wagers, only $16.00 can be attributed to Mr. Hulan; and

(f) One of the wagers “associated” with Mr. Hulan included the #9 horse driven by Mr. Brown in the third place position on the ticket.

These betting particulars will be analyzed further below in the context of the case presented by the Administration.

We then heard from Grant Hollingsworth, the driver and trainer, of the seven horse, Black Opal. His evidence can be smmarized as follows:

(a) Tim Brown approached him on April 22^nd prior to the races;

(b) Tim Brown advised that he and Paul Megens “were not going to be there” in the seventh race that evening;

(c) Mr. Hollingsworth told Mr. Brown to “get out of the barn” with his “very stupid” proposal;

(d) Mr. Brown’s horse leaving from the trailing nine position behind the mobile starting gate didn’t get away very well which was “peculiar”;

(e) Black Opal finished seventh under Mr. Hollingsworth’s drive. The mare finished with a degree of lameness that warranted her being placed on the veterinarians’ list and the mare has never raced again;

(f) When interviewed by the B.C. Racing Commission investigators after April 22, 1999, Mr. Hollingsworth “lied” initially professing no knowledge of any proposals made to him;

(g) Mr. Hollingsworth “never met or spoke with Paul Megens about fixing the race” and further never met or heard of Ken Hulan; and

(h) Mr. Hollingsworth never bet the subject race and had no arrangement to receive any money from the betting of others.

A specific query of counsel for the Administration was made during the hearing as to whether we were going to be shown the various CPMA videotapes of the impugned race. The response from Mr. Van Niejenhuis was to the effect that it was “not the intention” of the Commission Administration to let the Panel see the race.

This choice by the Administration becomes important in the context of the evidence of their witness, Brent Stone, the Assistant Supervisor of Standardbred Racing of the Commission. Mr. Stone was charged with the investigation of this matter in the summer of 2001. Part of his work involved an interview with Ken Hulan.

Additionally, Mr. Stone interviewed Paul Megens. The transcribed interview of November 26, 2001 was made Exhibit 9 in the proceedings before us.

Mr. Stone took umbrage with Mr. Megens’ opinion on viewing the race video during the interview. While it was Mr. Megens’ conclusion that “he had driven his horse properly”, Mr. Stone opined to us that from his view of the videos of the race that “it looked like a fixed race”. Mr. Stone continued that it was his further “opinion” that Paul Megens “didn’t try with his horse in that race”. We were provided with no further explanation or reason as to why the race videos were not part of the evidence before us. We take judicial notice that the video tapes were presented to the first Panel hearing this matter, see Megens v. Ontario Racing Commission 2003 CanLII 26509 (ON SCDC), [2003] 64 O.R. (3d) 142 at 150, par. 27 (Ont.Div.Ct.)

Exhibit 9, the transcript of Mr. Stone’s interview of Mr. Megens in 2001, references in detail certain events alleged to have transpired on the track during the course of the seventh race on April 22, 1999 at Fraser Downs. These included Mr. Megens’ mare being “dead lame” and being “rough” on the turns with “her head turned and badly on the right line”. The evidence presented or not presented to us left us with no means to test these very significant and varying conclusions. The question as to why important and potentially corroborative evidence was not before us is a concern that will be addressed further.

The cornerstone of the Notice of Proposed Order to Revoke License against Paul Megens was the testimony of Tim Brown, the driver of the public’s second choice at 5-2, Extra Innings. Mr. Brown told us inter alia as follows:

(a) The subject race was “fixed in my opinion”;

(b) However, when first interviewed by the judges in British Columbia, Mr. Brown denied any “fix” or knowledge of same. Rather, he indicated that he had “just blown the start” with Extra Innings;

(c) Mr. Brown continued to deceive the B.C. Racing Commission investigators throughout the summer of 1999 by indicating that he had not discussed the race with other drivers and that he had not bet on it;

(d) When pressed by Fraser Downs’ management with the threat of trespass exclusion, Mr. Brown took a polygraph test in October 1999. The results did not support Mr. Brown’s assertion in (b) and (c) above. Mr. Brown was suspended by the B.C. Racing Commission for a recommended period of seven years;

(e) Mr. Brown did not implicate or point to other drivers at the time of his suspension in late 1999;

(f) In April 2001, while still suspended, Mr. Brown had overtures made to the racing regulator in British Columbia. In essence, Mr. Brown offered further disclosures relating to the April 22, 1999 “fixed” race in return for the immediate reinstatement of all necessary racing licenses for him and permission to race at Fraser Downs;

(g) After the consummation of the settlement agreement, as in (f) above, Mr. Brown gave a new “truthful” statement regarding the April 22, 1999 race to investigators for the B.C. Racing Commission;

(h) Mr. Brown’s reinstatement is described in Exhibit 7, a ruling of the British Columbia regulator. His license restoration was “conditional” on,

(i) if called upon, to testify “in a truthful manner and in accordance with the sworn statement” he made in 2001 to the British Columbia Racing Commission; and

(ii) his promise to “cooperate with the B.C. Racing Commission and its representatives at all times”.

Mr. Brown’s interview of April 2001 with the British Columbia Racing Commission, the transcript of which was made Exhibit 5 before us, contained disclosure to the British Columbia regulator for the first time in almost two years since the subject race of the following:

(a) Messrs. Brown and Megens had lunch on April 22, 1999;

(b) Mr. Brown noticed a race “that we both had horses in” and said that we “could maybe bet the race and make some money off it”;

(c) The lunch, as above, ended with Mr. Brown being dispatched to see if Mr. Hollingsworth would “keep his horse out” of the triactor;

(d) Mr. Megens did not agree with the proposition of Mr. Brown in (b) and (c) above, but “seemed interested”;

(e) Mr. Megens said he would get somebody to “bet if we decided to do it”;

(f) Mr. Brown visited Mr. Hollingsworth’s barn and suggested that Mr. Hollingsworth not finish in the top three. Mr. Hollingsworth “agreed with” this proposal;

(g) Mr. Brown then returned to Mr. Megens and advised him that “the plan was a go”. Paul Megens was said to have replied that “he would get the bets placed”;

(h) Mr. Brown then drove Extra Innings in the seventh race that evening, but did not drive to the best of his ability; and

(i) A post-race rendezvous between Megens, Brown and Hollingsworth was planned for a bar in Langley, British Columbia, that evening after the races. Mr. Megens called to cancel after advising that CPMA had locked down certain winning triactor tickets.

During his cross-examination, Mr. Brown gave further details of the particulars of the triactor bets that were to be made. These bets, according to Mr. Brown, were recorded in writing on a program, as part of the pre-race planning with Mr. Megens at the lunch on the day of the subject race. Mr. Brown unhesitatingly indicated that the bet was “Number 2 that we picked to be first, second or third, with 1#, #3, #4, #5 and #8 boxed around him”. It was further Mr. Brown’s evidence that horses 6, 7 and 9 were to be “omitted altogether”.

The fact that many of the actual bets attributed to Mr. Hulan and the conspiracy to fix the race were inconsistent with Mr. Brown’s wagering plan, as above, “remains a mystery” to the present to Mr. Brown.

Mr. Brown did acknowledge that Paul Megens was not one of a specific British Columbia racing officials’ “favourite people”. Mr. Brown stated that it “crossed my mind” that the B.C. racing officials might be “using him” to “get at Paul Megens”.

Mr. Megens before us denied being any part of or a party to the race “fix” at Fraser Downs on April 22, 1999. His position is that Mr. Brown, an admitted liar, manufactured the whole story as a means to be reinstated after apparently doing poorly on a polygraph test. Additionally, Mr. Megens denied having anyone bet the subject race on his behalf or betting on same himself. He further indicated that there was no discussion of any nature at any time with Grant Hollingsworth regarding the subject race.

Filed consensually as Exhibit 10 with us was a transcript of the evidence of Neil MacKay given in a prior hearing on October 8, 2002. Mr. MacKay has since that date died. His transcript indicates inter alia that Tim Brown stated in September 2001 that he “may have to implicate” Paul Megens in order to get back his license even though Mr. Megens “wasn’t involved”.

We do note from Mr. Megens’ evidence before us and the associated exhibits a somewhat extensive disciplinary history from 1984 to the present. Of particular concern in the mid-1990s is an event where Mr. Megens bet against one of his own horses in British Columbia. He was fined $2,500.00 and suspended thirty days for this violation of one of the fundamental rules of racing.

Mr. Megens freely admits knowing Ken Hulan. Ken Hulan is the father of a friend, Lee Hulan. Mr. Megens in fact currently drives and trains at least one horse for Lee Hulan.

Mr. Megens says that he met Ken Hulan on April 23, 1999, the day after the subject race, but had no communication of any kind with him relating to the April 22^nd races before this date. Mr. Megens was aware around mid-April of Mr. Hulan visiting B.C. from Ontario as a result of information received from Ken Hulan’s son, Lee. Ken Hulan is said to have “popped by” the training centre where Paul Megens was stabled on April 23^rd. According to Paul Megens, something was said of triactor tickets and trouble cashing certain Fraser Downs mutuel tickets the prior day.

Paul Megens denies Tim Brown’s presence at this training centre meeting.

ANALYSIS

The onus to establish that Paul Megens was a participant in the fixing of the seventh race at Fraser Downs on April 22, 1999 is initially upon the Administration.

The following are undisputed evidentiary facts before us that are contradictory of and inconsistent with the Administration’s case that Mr. Megens was a participant in the “fix”:

(a) There is no evidence from any source of any communication between anyone in the race with Ken Hulan, the named agent to place the wager in furtherance of the conspiracy described by Mr. Brown;

(b) Ken Hulan was not called by the Administration, even though he was a resident of Ontario and was interviewed by Brent Stone. His interview statement similarly was not before us;

(c) It was not the performance or lack thereof of Mr. Megens’ horse on April 22, 1999 that caused CPMA’s agent to review all aspects of the wagering on the race. Mr. Megens’ horse was 12-1 at post time and apparently performed consistent with that evaluation by the wagering public;

(d) We were not shown the various videotape views of the race. With all due respect to the testimony of Brent Stone, Assistant Supervisor of Standardbred Racing in Ontario, and his opinions of the race tapes, we are left in a quandary as to why the race tapes would not be part of the case presented. Mr. Stone tells us that Paul Megens “didn’t try” with his horse. Should we not have seen the tapes given that this was one of the fundamental issues before us?

(e) The totality of the Hulan wagers were in no way consistent with the triactor plans and agreement that Mr. Brown testified had been made in writing on a race program at lunch with Mr. Megens on April 22, 1999;

(f) Fifteen of the seventeen Hulan wagers included in part the seven horse driven by Grant Hollingsworth. This represents a significant wagering cost and is entirely at odds with the alleged “fix”;

(g) Some of the Hulan wagers included the Brown and Megens driven horses, again entirely contradictory to the terms of the alleged “fix”;

(h) The Hulan winning tickets represent only $16.00 worth of purchases in a pool where there was $44.00 worth of winning wagers; and

(i) The evidence is entirely consistent that Paul Megens and Grant Hollingsworth never spoke or discussed the supposed seventh race conspiracy.

We heard no evidence from Mr. Brown or anyone else as to the quantum of the so-called conspiratorial triactor bets, the respective shares of any of the so-called participants, or the amount of Mr. Brown’s contribution towards the wagering costs.

It is of some concern to us that Mr. Brown has “no explanation” for the multiple and serious inconsistencies between his evidence of what the triactor bets were to be as part and parcel of the conspiratorial “fix” and the actual bets made by Mr. Hulan. Significant amounts were bet outside the parameters of the alleged “fix” formula as described by Mr. Brown. Other details, albeit more minor in substance, of Mr. Brown’s meeting to set up the conspiracy with Mr. Megens and set the bets lacked clarity and consistency with prior evidence and/or prior statements of Mr. Brown.

Additionally, Mr. Brown referenced the boxing of the number four horse as part of the wagers in furtherance of the “fix”. Mr. Murchison’s evidence and Exhibit 4 make it clear that there was not a single bet by Mr. Hulan that involved boxing the number four horse with number two. We additionally note that it was the number one horse that was the winner of the race.

While the Hulan wagers prominently featured the number one horse on top, it was Mr. Brown’s evidence that it was “number two that we picked to be first, second or third…with other horses boxed around him”. Mr. Hulan made only four of the seventeen wager with number two selected on the top of the triactor ticket.

It is for these reasons that we have some substantial difficulty in accepting Mr. Brown’s 2001 and thereafter version of the April 22, 1999 race “fix”.

These inconsistencies throw the whole alleged conspiracy into doubt before one even considers the competing credibility on a subjective basis of Mr. Megens versus Mr. Brown. With regard to Mr. Megens, it suffices to say that we would urge him to improve his overall disciplinary record with the various licensing regulators of the horse racing industry. Mr. Megens does not have a stellar disciplinary history. However, the extrinsic and circumstantial undisputed evidence and facts delineated above weighs heavily towards Mr. Megens not being a party to the alleged conspiracy regarding the seventh race on April 22, 1999.

In disciplinary proceedings such as this, the onus of proof is on the Administration as the complaining party.

Liquor Control Board of Ontario v. Kasumanchiri (1988) 1988 CanLII 8926 (ON HCJDC), 25 O.A.C. 161 at 173 (Div. Ct.)

Generally if the complaining party, here the Administration, establishes a prima facie case, an appellant or objecting party such as Mr. Megens is then required to adduce evidence to meet and rebut the Administration’s case. If at the end of a hearing such as this, the Administration’s case will be proven if on all the credible evidence it is shown that the alleged events probably occurred.

Milstein v. The College of Pharmacy (Ont.) (No. 2) 1978 CanLII 1294 (ON CA), 1978 87 D.L.R. (3d) 392 at 397, 408 (Ont.C.A.)

It has been decided additionally that the degree of proof required to establish a fact by a balance of probabilities depends on the totality of circumstances in the case. Included in such circumstances are the nature of the facts to be proven, the seriousness of the allegations made, and the gravity of the consequences flowing from the particular finding. We have concluded that the degree of proof required to establish the Administration’s case here is in the upper range of the balance of probabilities.

Additionally, when the matter involves the right of a licensee to earn a living in his established profession, the upholding of a proposed order rescinding that right requires clear and cogent evidence as noted above.

Bernstein v. The College of Physicians and Surgeons (Ont.), 1977 CanLII 1072 (ON HCJ), 1977 15 O.R. (2d) 447 (Div.Ct.)

As noted above, one witness who could have given evidence regarding Mr. Megens’ involvement in the conspiracy, if any, was Ken Hulan, the party who placed the bets in furtherance of the “fix”. Mr. Hulan was interviewed by the Commission investigator but was not called by the Administration. We were provided no reason for Mr. Hulan’s absence or failure to testify. In the absence of Mr. Hulan, we were invited by Mr. Megens’ counsel to draw a negative inference from this circumstance.

The failure of the Administration to present the various videotape records of the actual race on April 22, 1999 is additionally a concern. It is an accepted principle that a tribunal is entitled to draw unfavourable inferences with respect to the failure to lead or call obvious and relevant evidence. Such a failure amounts to an implied admission that the evidence so omitted would be contrary to that party’s case or at least would not be supportive of it. With regard to the failure of Mr. Hulan to be called without explanation and further with respect to the failure to make the race videotapes available, we are compelled and do draw negative inference in that regard.

The race fixing allegations against Mr. Megens here are among the most serious charges in horse racing and could also be of a criminal nature as fraud on the wagering public. While the burden or standard of proof before an administrative panel is generally on a balance of probabilities, the common law, as noted above, does recognize a range within that standard so that serious disciplinary charges require clear and convincing evidence of culpability, particularly if the allegations involve regulatory conduct that could also be criminal behaviour. All of the above leads us to conclude that the Administration’s case against Paul Megens is deficient in the necessary clarity, consistency and cogency required for an affirmation of the Notice of Proposed Order of the Deputy Director of Racing.

CONCLUSION AND DISPOSITION

While pieces of the evidence here and there with respect to Mr. Megens’ action and conduct can be seen as troubling, it is the evidence of the Administration before us and, in some cases the lack of evidence before us, that necessitates that we find on the requisite balance of probabilities that Mr. Megens was not part and parcel of Mr. Brown’s alleged “fix” of the seventh race at Fraser Downs on April 22, 1999.

For the reasons above and pursuant to the statutory discretion given to us under to Section 22(7) of the Racing Commission Act 2000, we therefore quash and set aside the Notice of Proposed Order to Revoke the licenses of Paul Megens.

Given the aforesaid disposition, we are not required to deal with the motion brought by Mr. Streisfield on May 12th and adjourned to be disposed of after the hearing of this application on its merits. This motion is moot by the result here.

The aforesaid are the unanimous Reasons for Decision of the Panel.

This matter has had a lengthy history both in British Columbia and more particularly here in Ontario. We would hope that all of Mr. Megens’ dealings with any aspect of the racing industry in the future would be conducted with a degree of integrity and transparency sufficient to avoid even the most remote and far fetched allegations of this type again.

Dated at Toronto, this 16^th day of November 2005.

Larry Todd

Vice Chair