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

AND IN THE MATTER OF STANDARDBRED OWNER AND AUTHORIZED AGENT

BERT SMITH

Standardbred Owner and Authorized Agent Bert Smith, requested a hearing in respect of Judges’ Ruling SB31244 dated April 29, 2004 wherein his licence was suspended for 15 days for violations of Rules 6.17(c) and (d) and 6.20(b) of the Rules of Standardbred Racing for improper language and conduct and misconduct prejudicial to the best interests of racing in the Finish Line Bar at Woodbine Racetrack on March 27, 2004.

Mr. Smith also requested a hearing in respect of Judges’ Ruling SB31299 dated June 21, 2004, wherein his licence was suspended for 30 days, he was fined $10,000.00 and he was ordered to complete an anger management course for violations of Rules 6.17(c) and 6.20(b) of the Rules for improper language and misconduct prejudicial to the best interests of racing in the grandstand of Mohawk Raceway on April 29, 2004.

On September 7, October 8 and 27 and December 15, 2004, a panel of the Ontario Racing Commission consisting of Chair Tanaka, Commissioners Kelly and Walker heard these appeals.

Randy Bennett and Shayne Rayman represented Mr. Smith. Tim Snell represented the Administration.

Upon hearing the evidence of the witnesses called by the Administration and on behalf of Mr. Smith, upon reviewing the exhibits filed and hearing the submissions of the Parties, the Ontario Racing Commission dismissed these appeals in respect of liability and dismissed these appeals in part in respect of penalty as follows:

1. With respect to the appeal arising from Ruling SB31244, Mr. Smith was found by the Commission to have violated Rules 6.17 (c) and (d) and 6.20(b). The Commission ordered his licence to be fully suspended for 10 racing days.

2. With respect to the appeal arising from Ruling SB31299, Mr. Smith was found by the Commission to have violated Rules 6.17 (c) and 6.20(b). The Commission ordered his licence to be placed on probation for one year, that his licence be suspended for 30 racing days, 20 of which are stayed, which stay is to be lifted and the 20 days suspension applied in addition to any penalty in the event Mr. Smith is found to be in violation of the Rules as a result of any occurrence within the probationary period, and he is fined $3,000.00.

Mr. Smith is fined $3,000.00, payable on or before February 10, 2005, and his licence is to be fully suspended for 20 racing days, the timing of which is to be agreed by the Parties failing which the Commission can be addressed on this issue.

BY ORDER OF THE COMMISSION

John L. Blakney

Executive Director

REASONS FOR DECISION

Bert Smith appealed two rulings of the Judges at Woodbine and Mohawk racetracks, being Standardbred Ruling SB31244 dated April 29, 2004 and Standardbred Ruling SB31299 dated June 21, 2004. Both Rulings involve determinations by the judges with respect to Mr. Smith's conduct in public areas on Woodbine Entertainment Group property.

In Ruling SB31244 the judges at Mohawk found Mr. Smith to be in violation of Rules 6.17 (c) and (d) and 6.20 (b). In Ruling SB31299 the judges at Woodbine found Mr. Smith to be in violation of Rules 6.17(c) and 6.20 (b).

Rules 6.17 (c) and (d) provide as follows:

A person, at any time or place, shall not against any official or participant:

(c) use threatening, offensive or improper language, or

(d) be guilty of any improper conduct.

Rule 6.20 (b) provide as follows:

A participant shall be guilty of a violation of the rules:

(c) for any misconduct prejudicial to the best interests of racing.

Section 6 of the Racing Commission Act, 2000 requires that the Commission exercise its powers and perform its duties in the public interest and in accordance with the principles of honesty, integrity and social responsibility.

The facts, which are at the base of the two rulings, are connected. Bert Smith holds an owner's and authorized agent's licences. On March 27, 2004, at the Finish Line Bar at Woodbine racetrack, Mr. Smith, in speaking to another person in the bar, Patrick Supersad, called Mr. Supersad "a lying bag of shit" and "a liar". Mr. Supersad is licensed as a Standardbred Owner. The fact that Mr. Smith made these statements in the bar was corroborated by Mr. William Cartwright who was sitting beside Mr. Supersad at the bar. Both Mr. Cartwright and Mr. Supersad were also called to testify before the judges at Mohawk at a hearing into these events which resulted in Ruling SB 31244 on April 29, 2004.

Mr. Smith's testimony was that while he said the words alleged and used more offensive language, he was calm. The testimony of Mr. Robert Reid Jr., also a licensed owner, was that when he heard heated and loud words from Mr. Smith, he got up from his seat some distance away and put himself between Mr. Smith and Mr. Supersad, the target of the remarks. He stayed there until Mr. Smith left shortly thereafter. Mr. Reid testified that he wanted to make sure nothing happened between Mr. Supersad and Mr. Smith. On the basis of the evidence before us from Mr. Supersad to whom the remarks were addressed, from William Cartwright, also a licensed owner, and Mr. Reid who was sitting further away in the bar, we find that Mr. Smith spoke loudly, acted aggressively and improperly, and used inappropriate and improper language.

Mr. Supersad complained to Woodbine Security and the judges. He and his neighbour at the bar, Mr. Cartwright, testified at the judges’ hearing into the incident held on April 29. Mr. Smith attended and cross-examined both of them. The outcome of the judges’ hearing was Ruling SB31244 in which the judges imposed a penalty of 15 days suspension. The panel of judges included Judge Gary Cahill who testified before this panel of this Commission.

In the course of the hearing before the judges, Mr. Smith asked questions in which he alleged that Mr. Cartwright had, as owner of a horse racing at Woodbine, "stiffed" the horse, i.e., cheated. Mr. Cartwright was incensed that such an allegation would be made in front of the judges and confronted Mr. Smith after the judges’ hearing. Mr. Cartwright’s trainer calmed him down so that few words were exchanged in what might have otherwise become a heated exchange.

This allegation made at the judges’ hearing clearly rankled Mr. Cartwright. Later that evening, both Mr. Smith and Mr. Cartwright had horses racing against each other. Mr. Smith's horse won. As Mr. Smith was leaving his seat in the Grandstand after the race, Mr. Cartwright shouted at him from his seat at the top of the Grandstand. Mr. Smith regarded the remarks as inappropriate. He was restrained from going to speak to Mr. Cartwright by his trainer, Jeff Gillis, who described Mr. Smith as being animated and agitated as a result of the shouting. Instead of approaching Mr. Cartwright, Mr. Smith went to the winner's circle. On returning to the Grandstand from the winner's circle and paddock, Mr. Smith called the judges to complain about the shouting and then approached Mr. Cartwright to tell him that the complaint had been made to the judges.

The complaint by Mr. Smith was investigated, and Mr. Cartwright acknowledged that he had shouted words that were inappropriate. He acknowledged his intention to shout at Mr. Smith. The investigator, Detective Constable Elcheshyn, reported the outcome to the judges who called in Mr. Cartwright. Since he was licensed as an owner, had no previous penalty record, and was co-operative and remorseful, the judges gave him an oral warning only.

The investigation, however, did not stop there. Mr. Cartwright complained that Mr. Smith had approached him and his group, which he said included his two children, in the upper seats in the grandstand in an aggressive manner. A Woodbine employee who had seen the incident told Detective Constable Elcheshyn what he had seen of the incident, that he had seen Mr. Smith standing close to Mr. Cartwright, pointing at Mr. Cartwright and acting in an aggressive manner. He expressed the view that Mr. Smith “is an intimidating guy”.

Mr. Smith acknowledged that he has an imposing physical presence because of his size. He is a young man who was formerly a football coach. One of his witnesses acknowledged that some people view Mr. Smith as intimidating. Mr. Smith’s trainer describes him as “competitive” and says that Mr. Smith does not take losing well.

Mr. Smith himself testified that he went up the Grandstand stairs to where Mr. Cartwright and his group were sitting. He motioned with his fingers to two other people also sitting in the Grandstand to come closer to hear what he had to say to Mr. Cartwright in response to the shouting. He clearly expected them to do as he indicated they should. Those two did approach, as Mr. Smith requested. Mr. Smith testified that he said, "you [Mr. Cartwright] are going to be addressed". Mr. Cartwright testified before us that Mr. Smith, in delivering this message, was aggressive, used foul language, came up close to him, and was physically intimidating.

It was this exchange between Mr. Smith and Mr. Cartwright that is the subject of Ruling SB 31299. Mr. Cartwright had just appeared at the judges’ hearing earlier that evening and had given information which was damaging to Mr. Smith with respect to the complaint concerning the March 27 incident at the Finish Line Bar. The judges had contacted Mr. Smith shortly before the race in question and advised him of his suspension. While the incident in the grandstand arose after Mr. Cartwright’s shouting, the core problem of tension between Mr. Smith and Mr. Cartwright had its source much earlier.

Mr. Smith says his anger on these two occasions is justifiable because:

(a) Mr. Supersad, the person he shouted at in the Finish Line Bar, had made inappropriate and damaging comments about him on the chat room on the web known as "harnessdriver.com"

(b) Mr. Supersad had given him information which he had relied on which was false, and he had told the man never to speak to him again. When the conversation at the bar between Mr. Cartwright and Mr. Smith turned to potentially include Mr. Supersad, Mr. Smith reacted using the inappropriate language referred to above.

(c) Mr. Cartwright, who had shouted at him in the Grandstand, was accusing him of cheating in a race.

(d) Mr. Smith believes that Mr. Cartwright "stiffed" his horse or cheated in an earlier race and, in essence, is not someone who can credibly comment on ethics and good conduct in horse racing.

(e) Mr. Cartwright’s testimony at the judges’ hearing earlier in the evening of April 29 was inconsistent with his behaviour when he shouted, and he should be punished by the judges.

Mr. Smith believes that the Racing Commission, specifically Senior Judge Cahill, is biased against him. Judge Cahill was on the panel of judges that delivered both of the rulings that were appealed to us. Mr. Smith says he calls the Supervisor of Standardbred Racing with information about things that are going on in racing and nothing comes of it. He says he has been treated badly by Trot Magazine, which published a photograph of the O'Brien Awards a couple of years ago when his trainer won an award. The magazine published a photo of the trainer and his friends including Mr. Smith, but he says the photograph was deliberately cropped to exclude his wife because she is white. He also complains about his treatment by Woodbine Entertainment. He is the top earning owner in Woodbine's Standardbred meet. The annual awards dinner used to include presentation of the award for top owner. Since Mr. Smith has been winning year after year, the award is no longer given at the awards dinner. Mr. Smith testified that he has been treated badly by the industry because he is black and from Jamaica.

With respect to the April 29 incident Mr. Smith is surprised that, having made a complaint about someone else's behaviour, he is himself the subject of an investigation. If he had simply lodged the complaint with the judges and stayed away from the person who shouted at him. things might well have had a different outcome. But he would not restrain himself and follow Mr. Gillis' better judgment.

Mr. Smith says he did not follow Jeff Gillis' advice because "Jeff does Jeff and Bert does Bert". So long as "Bert does Bert", there will always be those who may attempt to goad him to react as he reacted on these two occasions.

As a result of the incident on April 29, Woodbine banned Mr. Smith from their premises on an indefinite basis. Mr. Smith said that the ban was lifted when he went to see Hugh Mitchell of WEG and "sucked up to him".

With respect to the incident on April 29, 2004 in the Grandstand, in our view, Mr. Smith acted inappropriately in approaching Mr. Cartwright and in his conduct and language and what he said to Mr. Cartwright. We accept the evidence that Mr Smith was aggressive and intended to be threatening in the course of that encounter. He had the opportunity to "cool down" and exercise restraint, and he deliberately chose confrontation and loud and inappropriate language. Licensees must be able to participate in judges’ hearings and provide truthful information without fear of reprisal from other licensees. Mr. Smith behaved aggressively and inappropriately towards that licensee, someone who had just participated in the judges’ hearing. Such conduct, whatever the impetus, is entirely inappropriate.

Counsel for Mr. Smith and the witnesses called to testify on his behalf indicated that one hears foul language at the track, both in the Grandstand and in the bars, and that altercations are not infrequent between attendees. It seems to us that there are hundreds of places where one can enjoy an evening's entertainment without this unpleasantness. Live racing cannot compete with other entertainment so long as licensees carry on this way.

There is also a difference between immediate untutored unrestrained responses in the heat of cheering on a horse in a race and the deliberate misconduct of Mr. Smith. We refuse to condone threatening aggressive behaviour either between licensees or others who might attend at the racetrack.

Mr. Smith and his counsel emphasized the difference in the recollections as to the precise words used by Mr. Cartwright in his shout at Mr. Smith in the grandstand. The intent of the words, no matter which version is accepted, was to embarrass Mr. Smith and to accuse him of cheating. Mr. Cartwright has acknowledged his error and shown remorse for his conduct. The inappropriateness of those remarks, whatever their precise wording, does not excuse Mr. Smith from being aggressive and using language as he did, clearly with the intent by his physical aggression to stop Mr. Cartwright from further shouting and behaviour that might embarrass Mr. Smith. This conduct is clearly unacceptable.

We therefore find that on March 27, 2004 in the Finish Line Bar Mr. Smith violated Rules 6.17 (c) and (d) and 6.20 (b). We also find that Mr. Smith on April 29, 2004 in the Grandstand at Mohawk violated Rules 6.17 (c) and 6.20(b). We therefore dismiss the appeals in so far as they are based on the actual events.

Mr. Smith also appealed because of the manner in which the judges’ hearing was held at Woodbine where he had been barred by the track management because of his behaviour. The judges had made arrangements for Mr. Smith to be allowed to enter the premises for the judges’ hearing but that information did not reach either Mr. Smith or his counsel. The investigator who spoke to Mr. Smith prior to the hearing was left with the understanding, because of his conversation with Mr. Smith, that Mr. Smith had no intention of coming to the judges’ hearing, so vehement was he in his view of the bias against him. There also appears to have been an issue of competing scheduling of a pre-hearing and the judges hearing.

In the normal course such timing conflicts are easily addressed with communication between counsel and the judges. Mr. Smith told the investigator that “I’m not interested in anything you fucking guys have made up. I won’t be attending. Talk to my lawyer”. Mr. Smith should not be surprised that the investigator’s conclusion was that he would not be attending the hearing.

On their face, these issues of access and representation by counsel at hearings are of singular importance in the broad public law context. In the practice and procedure of this Commission however, the procedural failures at the judges’ hearings are readily cured by the hearing de novo before us. It is important that licensees have access to attend the judges’ hearings when rule violations are alleged against them, and it is both the policy and practice of this Commission to facilitate that occurring. The same can be said for the licensee's right to have counsel attend; however, the licensee must be clear in communicating to the judges any problems concerning attendance. Logistical problems can be overcome with the co-operation of all concerned and should be. In this case, communication with counsel apparently failed at the judges’ level. Before this panel, Mr. Smith was represented by two able counsel and called witnesses to testify. Therefore the appeal on these procedural grounds fails.

Mr. Smith also alleges that his appeal should be granted because Judge Cahill is biased against him. Judge Cahill testified at length and was subjected to an intense and detailed cross-examination by skilled counsel. We have noted Judge Cahill’s answers to the questions put, as well as Mr. Smith’s appearance in the hearing room and his deportment in testifying before us. We have conducted a hearing de novo and listened to all the evidence brought forward both by the Administration and by Mr. Smith. Intelligent people acting reasonably can disagree on an outcome. The evidence supports the findings of the judges’ panels of Rule violations. Mr. Smith does not agree with the judges' rulings. That disagreement does not mean that those responsible for the decision are biased. We observed no basis in what occurred in this hearing room to conclude that the basis of the rulings appealed was bias on the part of Judge Cahill.

PENALTY

Mr. Smith has previously been penalized under Rule 6.17. He acknowledges telling a judge to "do your god dammed job". He paid the fine imposed as a result of that incident, but expressed no remorse concerning that incident even before this panel. He is articulate but peppers his answers with words such as "stinking", "god dammed", etc. He acknowledges that he said "Fuck you" in the heated and loud exchange with Mr. Supersad in the Finish Line Bar. He says swearing and inappropriate language are part of the racetrack culture.

Given the fines and penalties imposed on Mr. Smith in other occasions and those imposed on other licensees, a suspension for his conduct in the Finish Line Bar is appropriate. As the witnesses recounted their recollections of the events in the Finish Line Bar, it was clear that Mr. Smith's aggressive behaviour was not an appropriate response to anything that evening, or to whatever occurred on harnessdriver.com. Mr. Smith acknowledges that he himself participates in the chat room and emails derogatory statements about other individuals and "their mothers, their sisters". Carrying a grudge from that forum to another hardly seems appropriate. Carrying the grudge into the Finish Line Bar and making a scene is not in the best interests of racing.

Enlightening testimony concerning the incidents also came from witnesses called on Mr. Smith’s behalf. John Clark testified that when he saw Mr. Smith go up the Grandstand steps to confront Mr. Cartwright for shouting at him, Mr. Clark’s thought was "here we go again". Jeff Gillis, Mr. Smith's trainer, testified that he restrained Mr. Smith from going up the stairs in the Grandstand to avoid a confrontation with Mr. Cartwright.

We conclude that, among those Mr. Smith counts as his close associates and with whom he owns horses, he has a reputation for aggressive reactive behaviour that leads to confrontations that others would not undertake. This impression is highlighted by the fact that a man who was in the Grandstand at the time of the shouting and confrontation between Mr. Cartwright and Mr. Smith came over to Mr. Smith later, asked permission to speak to him, and then attempted to distance himself from the group that had annoyed Mr. Smith.

With respect to penalty, our view is that the 15 days suspension given for the March 27 incident in Ruling SB 31244 was too severe, given that the incident was of limited duration and given the previous penalty of 6 days and $2500 imposed on Mr. Smith for an earlier incident.

The suspension of the licences is reduced to 10 racing days. There will still be a substantial monetary cost to Mr. Smith by virtue of the length of the suspension, so a fine in this case is not warranted.

With respect to the penalty imposed in Ruling SB31299 on June 21, 2004, the penalty imposed by the judges was a 30-day suspension and $10,000 fine. We have taken into account the fact that the incident that gives rise to the Ruling followed quickly on the heels of the hearing before the judges concerning the Finish Line Bar incident. We have reviewed the other penalties imposed on other licensees brought to our attention by the parties. The largest comparable fine was $7,500 imposed on a licensee who beat another with his helmet in a fight in the paddock. The 30 days is compared to the penalty imposed on a person with an alcohol abuse problem who was suspended 60 days and required to undergo treatment for his alcohol abuse.

We are very concerned that Mr. Smith chose to approach another licensee who had testified at a judges’ hearing against him, rather than to let the process of the complaint he made to the judges run its course. The incident was unpleasant and in public, but there was no physical contact between Mr. Smith and the other licensee. We are also very concerned that Mr. Smith shows no remorse for his conduct or his language, and has repeatedly run afoul of the rules related to conduct of licensees.

We therefore impose as penalty on Mr. Smith, instead of that imposed in Ruling SB31299, a probationary period of 1 year and a 30 racing day suspension of both his licences, of which 20 days are stayed. In the event that Mr. Smith is found in violation of any of the Rules related to personal conduct within that year, the stay of the 20 days will be automatically lifted so that his licenses will be suspended for that period, in addition to whatever other penalty the judges may impose arising from the new violation.

The judges imposed a fine of $10,000. While we appreciate that licensees such as Mr. Smith who behave in objectionable ways are difficult to deal with, there was no physical contact between the licensees. As a result of our ruling, Mr. Smith will serve a total of 20 racing days suspension, even with the stay of a portion of one suspension in place. This will, in and of itself, carry a monetary penalty. We therefore reduce the fine to $3,000, an increase over the last fine imposed on him.

Our change in the penalty in this case should not be interpreted as a criticism of the judges who, on a daily basis, have the task of dealing with such adolescent behaviour as was exhibited in these incidents. While the amount of the fine was too high, we believe the potential for such a fine should have a salutary effect, since there may well be instances when that amount is appropriate and licensees should be aware of that.

The judges also ordered Mr. Smith to attend an anger management course. Mr. Smith believes he manages his anger appropriately. He does not, in our view, manage it at all appropriately. He has little time or patience for those who disagree with him and he seems quick to find insult where others differ with his views. He appears to be intolerant of any who differ from him. He also seems to enjoy his perception that he has the power to intimidate. We do not expect that he will benefit from such a course and we therefore do not order that he take such a course. Such resources are not so widely available that we would waste them on him.

Mr. Smith should note clearly this panel’s condemnation of his behaviour and determine if he wishes to remain in this industry. If he does, his behaviour must change. Any further violations by him of Rules 6.17 and 6.20 will result in substantial and increased penalties with the associated economic consequences.

Finally we wish to clearly express our concern with the allegation by Mr. Smith that racism was a factor in the manner in which the Commission or any of its employees carries out the responsibilities under the Act. Violations of the laws preventing such discrimination will not be tolerated by this Commission.

We have requested a copy of the transcript be ordered and reviewed by the Executive Director to determine if, based on the testimony before us, any further action needs to be taken by the Administration.

The Administration and counsel for Mr. Smith should consult on when the 20 days of suspension imposed as penalty should start. The parties are agreed that the period of suspension should not commence until at least 10 days after release of these reasons because of issues related to the co-ownership of horses with Maria Smith and All in Stride Stable. If there is any difficulty with respect to the start date of the suspension, this panel can be spoken to.

These are the unanimous reasons of the panel.

DATED this 31^st day of January, 2005.

Lynda Tanaka

Chair