IN THE MATTER OF THE RACING COMMISSION ACT 2000, S.O. 2000, c.20;
AND IN THE MATTER OF
STANDARDBRED DRIVER/TRAINER/OWNER PHILIP COLEMAN
Standardbred Driver/Trainer/Owner, Philip Coleman, appealed Judges' Ruling Number SB 33163 issued against him on December 16, 2004, wherein he was fined $1,000.00 and suspended for 30 days for violation of Rules 6.17 (b), (c), and (d) of the Rules of Standardbred Racing, for improper conduct towards another participant on December 7, 2004 at Woodbine Racetrack.
The ORC Panel hearing the matter consisted of Vice-Chair Todd and Commissioners Kelly and Gorman. The Panel convened on June 1, 2005. Brendan Van Niejenhuis represented the Administration and Herb MacDonald represented Philip Coleman.
Philip Coleman originally admitted liability but in the course of legal argument, counsel on behalf of Philip Coleman, contested the jurisdiction of the Commission to hear the matter on the basis that the conduct was conduct outside of its jurisdiction to govern horse racing.
On hearing the evidence of Richard Zeron and Judge Gary Cahill and Philip Coleman, and on reviewing the Exhibits, and on hearing the submissions of counsel, the Panel found that the Commission had jurisdiction to hear the matter pursuant to its powers under Sections 6 and 7 of the Racing Commission Act. The Panel further found Philip Coleman to have violated Rules 6.17(b), (c), and (d) of the Rules of Standardbred Racing. The Panel varied the penalty imposed by the judges and imposed the following penalty:
(a) The Panel ordered that Mr. Coleman was suspended for thirty (30) days for the violation of Rules 6.17 (b), (c), and (d);
(b) The Panel ordered that fifteen (15) of the thirty (30) days were and hereby are stayed for a period of one year, and ordered that if within one year of the date of this Ruling Mr. Coleman is found to have violated Rule 6.17 again, the stay shall thereby be lifted and he shall serve the remaining fifteen (15) days suspension; and
(c) The Panel ordered that Mr. Coleman shall pay a fine in the amount of $1,000.00.
The Panel further directed that the Administration and Mr. Coleman should agree to the time and circumstances of the commencement of the initial fifteen-day suspension and that failing agreement the parties may contact the Panel to arrange a telephone conference or further attendance to assist in the resolution of such matters.
The Commission's reasons for decision form part of the transcript of the hearing and are attached to this Ruling.
BY ORDER OF THE COMMISSION
John L. Blakney
Executive Director
ONTARIO RACING COMMISSION
STANDARDBRED HEARING
IN THE MATTER OF a hearing before a panel of The Ontario Racing Commission;
AND IN THE MATTER OF Standardbred Owner/Driver/Trainer PHILLIP COLEMAN
This is an excerpt of the proceedings before a panel of the Ontario Racing Commission re: PHILLIP COLEMAN, taken before Toronto Court Reporters, Suite 1410, 65 Queen Street West, Toronto, Ontario, Canada, at the offices of The Ontario Racing Commission, Toronto, Ontario on the 1st day of June, 2005.
Appearances:
Brendan Van Niejenhuis
for The Administration,
Herb MacDonald,
for Phillip Coleman.
DISCIPLINE COMMITTEE PANEL PARTICIPANTS:
Larry Todd (Vice-Chair)
David Gorman
G. Kelly
MR. FINES: All rise.
THE CHAIRMAN: We were able to come to a conclusion and the following are our unanimous reasons and our unanimous conclusion. This is an appeal by Mr. Coleman from Standardbred Ruling 33163 dated December 16th, 2004 from the Judges at Woodbine by which he was fined $1,000.00 and suspended for 30 days.
We have heard from Judge Cahill, Mr. Zeron and the appellant himself. We were told in opening and by tab 1, Exhibit 1 that this was only a case as to penalty and not liability. Counsel for the Administration advised us in opening that liability was acknowledged and that the only substance we were dealing with was penalty. Unfortunately, Mr. MacDonald did not disabuse us of this at this early stage in the hearing and it was only in argument when he was directly questioned by the Chair that he indicated that "liability is not admitted". We regret that Mr. MacDonald appears to in part to have resiled from an unequivocal admission, given the importance of such admissions being relied upon by all counsel and in fact hearing panels themselves in the conduct of the Disciplinary proceedings.
Again, Mr. Van Niejenhuis, on behalf of the Administration, was asked if he wished to request an adjournment to reconsider his case given the late notice of the resiling from the agreement as to liability. Mr. Van Niejenhuis declined, noting that the issue was really one of law and jurisdiction and not fact. Mr. MacDonald urges upon us the submission that there should be no censure for the facts before us to the appellant because there is no jurisdiction from the Ontario Racing Commission for conduct of a licensee as set out in Exhibit 2 before us. No authorities were cited.
With the proposition we fundamentally disagree. Rule 6.17 flows from Section 11 of the Ontario Racing Commission Act. This latter statute in Section 7(a) directs that we are required to "govern, direct, control and regulate horse racing in Ontario in any and all its forms". Exhibit 2, being the transcript of the statements made in the telephone/cell phone call refers to threats to bodily injury, ethnic insults, assaults and intentional future racing threats and misconduct during the course of a future horse race. These kind of items come directly within the full contemplation of the Section 7(a) of the Ontario Racing Commission Act as defined by the Ontario Court of Appeal in the recent case of the Ontario Harness Horsemens' Association and Sudbury Downs.
Accordingly, we with the facts and the law before us conclude that we clearly have jurisdiction to deal with the issue before us. Mr. MacDonald, assuming there was jurisdiction, has on behalf of his client admitted that the content of the statements in Exhibit 2 are essentially accurate and accordingly we moved on to address the penalty which he said was too severe in all the circumstances.
We find that the appellant exhibited very poor judgement in his comments as set out in Exhibit 2 and probably even poorer judgement in reciting these into a voicemail system for posterity to hear. The appellant has apologized to Mr. Zeron. Mr. Zeron was quite candid that after a few days when the apology was given it was fully accepted and, as one of the witnesses noted, things have moved on.
The appellant has told us that he is extremely embarrassed by the whole incident and has paid some price, on a de facto basis, in the industry. However, Mr. Coleman has both a prior and a subsequent history of these type of offenses and we cannot ignore the licensing record that was before us in Exhibit 7 - or Exhibit 1, I'm sorry, tab 6 and 7.
For these reasons we are unanimously of the view that the appeal will be allowed in only one respect. We propose to affirm the 30 day suspension and the fine of $1,000.00 but are prepared to stay 15 days of the 30 suspension for a period of one year on the condition that there be no further violations of Rule 6.17 in any respect in the ensuing twelve months.
In all other respects the appeal is to be dismissed and we would hope that Mr. Coleman will put his thinking cap on in the future before deciding to criticize conduct that he sees or feels is inappropriate in the industry.
It was urged upon us also by Mr. MacDonald that certain conduct of the Judges at the original hearing was inappropriate with respect to perhaps a differential treatment between high profile drivers and others of potentially lesser stature in the industry. We do note that this is a hearing de novo and that issue was not before us and our adjudication here is based entirely on the facts before us and not who or what was the complaining party before us and who was the appellant before us and it is our understanding that our Judges are to be instructed - or are being instructed to conduct their affairs in a similar fashion. Those are our reasons.
ERTIFIED CORRECT:____________________________
RAYMOND P. MACDONALD, B.A., CVR
Commissioner of Oaths