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

AND IN THE MATTER IN THE APPEAL OF

THOROUGHBRED LICENSEE PHILLIP BROWN

Thoroughbred Trainer/Owner Phillip Brown appealed stewards' ruling number TB 4354/06, dated July 26, 2006, wherein he was suspended for the balance of the 2006 Fort Erie race meet (July 26, 2006 to October 31, 2006, inclusive) for conducting his business in a dishonest manner and prejudicial to the best interests of racing, pursuant to Rules 15.09.01(a), (g), (j) and 16.13(d) of the Rules of Thoroughbred Racing.

The ORC Panel hearing the matter consisted of Chair Tanaka and Commissioners Gorman and Kelly. The Panel convened on September 19, 2006. Aaron Dantowitz appeared for the Administration and Mr. Brown appeared on his own behalf.

On hearing the agreed statement of facts, and on hearing the joint submission of the Administration and Mr. Brown as to penalty, the Panel accepted the joint submission and ordered:

1. that Mr. Brown be suspended from October 1, 2006 to October 31, 2006, inclusive, or to the end of the 2006 Fort Erie race meet, which ever is later;
2. that Mr. Brown also be suspended for the first 30 calendar days of the 2007 Fort Erie race meet; and
3. that Mr. Brown pay a fine of $500.00.

The specific parts of Rule 15.09.01 applicable to this ruling are paragraphs (a) and (g). The agreed statement of facts forms part of the transcript of the hearing, which is attached to this ruling.

DATED this 22^nd^ day of September 2006.

BY ORDER OF THE COMMISSION

John L. Blakney

Executive Director

ONTARIO RACING COMMISSION

THOROUGHBRED HEARING

IN THE MATTER OF THOROUGHBRED LICENSEE

PHILLIP BROWN

These are the proceedings in the above mentioned matter held before The Ontario Racing Commission, Re: PHILLIP BROWN, taken before Toronto Court Reporters, Suite 1410, 65 Queen Street West, Toronto, Ontario, at 10 Carlson Court, Suite 400, Mississauga, Ontario, on the 19th day of September, 2006.

Appearances:

Aaron Dantowitz,

for the Ontario Racing Commission Administration

Hearing commenced 10:00 a.m.

MR. HALL: All rise please. This hearing before the Commission is now in session. Please be seated.

MADAME CHAIR: Thank you. Mr. Dantowitz?

MR. DANTOWITZ: Madame Chair, Commissioners, good morning. I am Aaron Dantowitz for the Administration. Mr. Phillip Brown is present today acting in person. We met in discussions right up until this morning in an attempt to resolve the matter and I wonder if we might ask the panel's indulgence for a little bit more time to see if we can reach a conclusion. I would ask for perhaps twenty minutes.

MADAME CHAIR: Why don't we come back at 10:30.

MR. DANTOWITZ: Thank you very much.

MADAME CHAIR: And that way there is no sense of rush and if you need more time just speak to Eddie and he can come around and let us know. All right?

MR. DANTOWITZ: Thank you.

SHORT RECESS

Upon Resuming...

MR. HALL: All rise please. This hearing before the Commission is now back in session. Please be seated.

MADAME CHAIR: Thank you. Mr. Dantowitz?

MR. DANTOWITZ: Madame Chair, Commissioners, I am pleased to say that we were able to reach an agreement on both the facts and the penalty in this matter. Mr. Brown had the opportunity to consult with his legal counsel, who is not present today, before agreeing to the resolution.

MADAME CHAIR: So this is in the nature of a joint submission?

MR. DANTOWITZ: That's correct. The facts that have been agreed are as follows. Phillip Brown was the trainer of PINWINEE WHISKEY at Fort Erie in 2005. Tova McKane, the owner of PINWINEE WHISKEY, agreed with Mr. Brown to give him a half ownership interest in the horse in consideration for his training services.

Under the arrangement the horse's earnings were to be divided equally. At the conclusion of the 2005 Fort Erie meet Mr. Brown took PINWINEE WHISKEY to Cleveland, Ohio where he continued to train the horse and the horse continued to race. In Cleveland the horse earned money and was ultimately claimed there for $3500.00(U.S.).

While Mr. Brown was training in Cleveland a cheque dated December 6th, 2005 from the HPBA payable to McKane and Partner was sent to Mr. Brown's Ontario address. The cheque was in the amount of $2,000.00 and was received in respect of a first place finish by PINWINEE WHISKEY at Fort Erie. The cheque was deposited to Mr. Brown's personal bank account on December 13, 2005, while Mr. Brown was still in Cleveland, having apparently been endorsed by Mr. Brown and Ms. McKane. Ms. McKane did not endorse the cheque herself and did not learn that the cheque had been earned until later. Mr. Brown had instructed his wife to deposit the cheque.

Mr. Brown failed to inform Ms. McKane about the cheque until she asked him about it. At the time Mr. Brown returned from Cleveland the amount he owed to Ms. McKane was approximately $3,800.00. Except for $1,500.00 paid on Mr. Brown's behalf by his brother-in-law in May, 2006 the balance owing was not paid until July, 2006, after Mr. Brown was called to a Stewards hearing about the matter. Ms. McKane has now received restitution in full.

Mr. Brown's explanation for why he did not pay the money earlier is that his son who has an addiction problem stole money from him. Mr. Brown was not upfront with Ms. McKane about the money that he owed her and at the Stewards hearing the Stewards suspended Mr. Brown for what was then the balance of the Fort Erie race meet from July 26, 2006 through October 31st, 2006 and that suspension was stayed pending this hearing.

The Administration and Mr. Brown have agreed on a penalty which is that Mr. Brown be suspended from October 1st to October 31st. That is to say until the end of the Fort Erie race meet and then again for the first thirty days of the Fort Erie meet in 2007 and that he also receive a $500.00 fine and I should just mention that the rules in question are 15.09.01 (a) and (g) of the Rules of Thoroughbred Racing and that rule reads as follows: "Any act or omission in business practices related to Thoroughbred horse racing in any or all of its forms, which, when measured against generally accepted standards of good conduct would be regarded as dishonest, unfair or unsportsmanlike or contrary to the public interest, shall be deemed to be an illegal practice under these Rules and shall be dealt with accordingly at the discretion of the Stewards. The ruling and subsequent publication regarding penalty shall include the specific part of the Rule which the licensee violated. In determining whether any act or omission offends this Rule, regard may be had to any Code of Ethical and Professional Business Conduct that may have been adopted by a horseman's association. The following subparagraphs of this Rule provide particulars of conduct contemplated by this Rule but are not intended to be exhaustive. Paragraph (a) Without limiting the generality of the foregoing, the relationship between the owner and trainer shall be based on integrity, disclosure, maintaining the health and welfare of the horse and acting in the best interests of racing. Conduct unbecoming an industry participant also refers to conduct that occurs outside of the business of horse racing but which brings the industry into dispute." That part of the Rule shall not be applicable here. Part (g): "A trainer shall not put his/her interest above the interests of his/her owner."

And the Administration submits that this is an acceptable penalty for this violation in light of Mr. Brown's candid admissions in this matter.

MADAME CHAIR: All right. Mr. Brown, do you wish to address the Commission with respect to the penalty?

MR. BROWN: No, it's fine.

MADAME CHAIR: We are going to take questions from the panel. First, Mr. Gorman has a question for you.

MR. GORMAN: Mr. Dantowitz, you said the suspension in 2007 will be the first 30 days of the meet. Did you mean calendar days or racing days?

MR. DANTOWITZ: Calendar days.

MR. GORMAN: Calendar days? That's fine. That's all.

MADAME CHAIR: All right. The Commission panel accepts the joint submission of the two parties. We would recommend a ruling will be drawn up once the transcript is prepared. The ruling should specifically note that with respect to the period of suspension in 2007 it should refer to calendar days rather than racing days. Otherwise it will be a much longer period and I believe the intent is just simply the first 30 calendar days but we don't know yet when Fort Erie's program will start. So the specific Rules in question will be referred to, 15.09.01 (a) and (g) and the suspensions will be October 1, 2006 to October 31st, 2006 or the end of the Fort Erie meet, whichever is later in case they ask for some dates in November if the weather is good and they get some weather cancellations and then suspension to then be for the first 30 calendar days of the Fort Erie meet in 2007 and a fine of $500.00.

MR. GORMAN: And could I ask one more question. Do I assume Mr. Brown is then free to go to Cleveland, for example, in the month of November or Woodbine if he so chooses?

MR. DANTOWITZ: Yes.

MR. HALL: Yes.

MR. GORMAN: And the same thing next spring when the Fort Erie meet starts?

MR. HALL: Correct.

MR. DANTOWITZ: Right.

MR. GORMAN: Thank you.

MADAME CHAIR: All right. That concludes these proceedings and the ruling will issue in due course. Thank you.

CERTIFIED CORRECT:____________________________

RAYMOND P. MACDONALD, B.A., CVR

Commissioner of Oaths