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

OF THOROUGHBRED LICENSEE CHRISTOPHER L. EVANS

Thoroughbred Licensee Christopher Evans requested a hearing before the Ontario Racing Commission of the Director’s Order of Immediate Suspension and Notice of Proposed Order issued against him on May 3^rd, 2006.

On May 17^th, July 18^th, 19^th and August 11^th a panel of the Ontario Racing Commission consisting of Chair Lynda Tanaka and Commissioners Jane Garthson and George Kelly, convened to hear the matter.

Luisa Ritacca appeared at the hearing for the Administration and Dan McMahon appeared on behalf of Mr. Evans.

On hearing the evidence and on reading and reviewing the exhibits filed, and on hearing the submissions of counsel, the Commission determined pursuant to its powers under section 22 (6)(b) of the Ontario Racing Commission Act that Mr. Evans’ licence should be suspended for a period of three years commencing May 5^th, 2006.

In addition, the Commission concluded that Mr. Evans will serve a one-year probationary period and prior to being issued a licence at the end of the suspension and probationary period he must:

(a) File with the director proof that he has successfully completed a counselling program to address his issue of violence and abusive behaviour towards others, together with additional anger management counselling; and

(b) Provide a letter from a qualified professional who has reviewed the relevant material including these reasons and a transcript of the evidence in this case asserting that in that professional’s opinion Mr. Evans poses a low risk of re-offending.

Further, during the three-year suspension and one-year probationary period, Mr. Evans is to have no personal contact or communications either directly or indirectly with any Ontario Racing Commission Stewards without their express written consent. For greater clarification, so long as Linda Phelan is an employee of the Commission, Mr. Evans is to have no direct or indirect contact or communication with Linda Phelan. In the event that Linda Phelan returns to active work in her employment with the Commission, a panel of the Commission may review the conditions of Mr. Evans' probationary licence if necessary. During the period of suspension and probation, Mr. Evans must abide by any restraints imposed by the terms of the bail orders or any other court orders.

In the event of breach of any of these conditions, Mr. Evans' licence will be immediately revoked and notice of such revocation and his right to request a hearing on such revocation shall be provided to him.

In the event of any difficulties of interpretation of the terms of the suspension and probation, either Mr. Evans or the Administration may apply to the Chair for a hearing with respect to the interpretation as may be required.

The Commission’s reasons for decision are attached to this ruling.

DATED at Toronto this 18^th day of September 2006.

BY ORDER OF THE COMMISSION

John L. Blakney

Executive Director

REASONS FOR DECISION

On May 3, 2006 the Executive Director issued an order of immediate suspension and a notice of proposed order concerning the licence of Christopher L. Evans, pursuant to the powers in Section 22 and 23 of the Racing Commission Act 2000, (the “act”). Mr. Evans filed a notice requesting a hearing with respect to the order and the notice.

On May 17, 2006, a panel of the Commission consisting of the Chair and Commissioners Garthson and Kelly dealt with a motion on behalf of Mr. Evans to stay the order of immediate suspension. The request was granted on terms set out in Ruling Number COM TB 006/2006. A hearing date was set on consent of counsel for Mr. Evans. On July 12 a motion to adjourn the hearing was brought by teleconference by counsel for Mr. Evans and was refused by the Commission panel composed solely by the Chair. Counsel for Mr. Evans was advised that if he felt that his client suffered prejudice in the course of the hearing, as a result of the refusal of the adjournment, that he was not barred from bringing that prejudice to the attention of the panel to address. On July 18 and 19 and on August 11, 2006 a hearing was held in accordance with Mr. Evan’s request and the decision of the panel was reserved. It was ordered that until such time as the final determination of this matter by the Commission, the conditions of the stay of penalty set out in the above ruling will stay in effect.

The panel has concluded that the Executive Director had reasonable grounds to believe that Mr. Evans will not act in accordance with the law or with honesty, integrity and in the public interest. The panel disagrees with the Executive Director’s proposed order that the licence be suspended permanently and suspends the licence for a period of three years from May 5, 2006 and imposes a further 1-year probation term on the conditions set out in these reasons.

STATUTORY PROVISIONS

The powers of the Executive Director come from Section 21 of the act. The panel’s powers in this matter come from Section 22(6) of the act. The Commission is obliged under Section 6 of the act to exercise its powers and perform its duties in the public interest and in accordance with the principles of honesty and integrity, and social responsibility. Under Section 7 (c) the Commission is empowered to licence persons to operate racetracks, at which horse racing in any of its forms is carried on and to impose the terms on a licence that the Commission considers expedient. The Commission is also empowered under Section 7(h) to approve the appointment of racetrack officials and employees whose duties relate to the actual running of horse races and to compel the discharge for cause of any of those officials and employees. Given these powers, the public are entitled to expect that those who are involved in the actual running of the races and those employed by a racetrack are subject to conditions that may be imposed by the Commission to ensure the fairness of the races and the wagering.

The grounds on which a licence can be denied are set out in Section 19 of the act and are:

a) there are reasonable grounds to believe that, while the applicant carries out activities for which the licence is required, the applicant will not act in accordance with law, or with integrity, honesty, or in the public interest, having regard to the past conduct of the applicant; or

b) the applicant is carrying on activities that are, or will be, if the applicant is licensed, in contravention of this Act, the regulations, the rules or the terms of the licence.

We have further had regard to Rule 16.05 of the Rules of Thoroughbred Racing, which provides as follows:

The Stewards shall take any action they deem necessary, including the warning of or ordering the ejection from the grounds of all persons who, by reason of past or present conduct would be regarded as objectionable should they find such person has in any manner or at any time:

(c) shown disrespect by word or action to any official of racing.

PRELIMINARY MATTERS

During the opening statement, counsel for the Administration referred to a witness whom she intended to call to deal with allegations of inappropriate conduct on the part of Mr. Evans many years ago. After one day of evidence, counsel advised the Commission that she would not be proceeding with those allegations and would not call that witness. The decision of this panel is not based in any way on those allegations, which were only referred to in general terms in counsel’s opening and on which no evidence was called.

Further, in view of the fact that Mr. Evans is facing serious criminal charges with respect to incidents on which we received evidence, we note that this Commission is a regulatory tribunal, not a criminal court, and we are making our findings of fact based on the evidence we heard in the proceedings before us within the confines of our jurisdiction as regulator of the horse racing industry in Ontario under the terms of the act. Mr. Evans is a licensee of the Commission. A licence issued by this Commission is a privilege granted on the basis of promises made by the licensee as to his or her conduct, and a commitment to act with honesty, integrity and in the public interest in participating in horse racing.

The burden of proof on the Administration is the civil burden of proof on the balance of probabilities. The allegations against Mr. Evans were made in testimony from witnesses called by the Administration. In arriving at our decision, we have carefully reviewed all the evidence from witnesses and documents in its totality with a view to assessing the credibility of each of the witnesses that appeared before us.

THE EVIDENCE

The Administration presented evidence from Thoroughbred Racing Steward Linda Phelan, three other Stewards, the Commission’s licensing agent at Woodbine racetrack Tiffany Roach and Mr. Edwin Hall, the Supervisor of Thoroughbred Racing for the Commission, to whom the Stewards report. Mr. Evans chose not to take the stand in response to the allegations made against him. He called his secretary Kathryn Sullivan to testify on his behalf as well as senior members of the thoroughbred racing community (Owner Richard Lester, Trainer Reade Baker, Trainer William L. Tallon, and Trainer Charles Hopmans, Jockey’s Benefit Association, President Ray Sabourin) to testify as to his good reputation with them, based on their dealings with him. In addition, a book of letters of reference from leaders of the thoroughbred racing world and others were filed as to Mr. Evan’s good reputation with them. Reference is made to the other exhibits filed on behalf of Mr. Evans elsewhere in this decision.

FINDINGS OF FACT

Mr. Evans is a senior executive with Woodbine Entertainment Group (“WEG”), currently holding the position of Vice President of Thoroughbred Racing. He has been with WEG for many years, including a lengthy period as a much respected Race Secretary responsible for the thoroughbred racing program at WEG. In those positions he was and is responsible for supervising a number of staff in the organization as well as for WEG’s relationships with thoroughbred horsemen including owners, trainers, and jockeys, and other organizations on a provincial, national and international level. He is responsible at the most senior level for thoroughbred racing at Woodbine racetrack. The Race Secretary’s Office is part of his responsibilities. Mr. Evan’s office and that of other WEG staff involved in thoroughbred racing is located in a building at Woodbine that also includes offices used by the Stewards and other staff of the Commission.

Mr. Evans has carried on an extramarital affair with Linda Phelan intermittently since October 1999. In the course of that affair he secured her a position in the Race Secretary’s office (while he held the position of Race Secretary) as an entry clerk in 2000 and, though she lived otherwise in Alberta with her husband and family during the off season, Ms. Phelan and Mr. Evans conducted their affair during the racing season in Toronto, through e-mails and telephone calls during the off season when she was back in Alberta. In 2002 Ms. Phelan and Mr. Evans told their respective spouses about their affair and that they were breaking off the relationship. Their efforts to break off the relationship were not entirely successful and both acknowledged considerable emotional attachment to each other in the past, despite the tumultuous nature of their relationship.

In 2004 Ms. Phelan responded to an advertisement placed by the Commission for a hiring of a thoroughbred steward. Because of the conflict of interest rules and her husband’s business as a thoroughbred trainer, Ms. Phelan could not preside at thoroughbred races as a steward in Alberta. Ms. Phelan had worked hard to acquire the knowledge and background necessary to be qualified for the ORC steward position and she applied for it. Given the prestige of the thoroughbred racing at Woodbine and Fort Erie racetracks, she really wanted the job as a Steward in Ontario, where the thoroughbred racing season is long and where the Commission provides employee benefits. She was hired as a steward in training in the 2004 season and as a fully qualified steward for the 2005 and 2006 seasons. In the opinion of the three stewards who testified and the Supervisor of Thoroughbred Racing to whom she reported, she ably discharged her duties and responsibilities as a steward for the Commission in officiating at thoroughbred races and enforcing the Rules of Thoroughbred Racing at Woodbine and Fort Erie racetracks.

Prior to hiring her, the Supervisor of Thoroughbred Racing, Mr. Edwin Hall, (“Mr. Hall”) spoke to Mr. Evans for a reference for her hiring. Mr. Evans gave her a very positive reference. Mr. Hall was aware that Mr. Evans had had a relationship with Ms. Phelan. Mr. Evans did not tell him until much later, however, that Mr. Evans regarded their relationship was such that he intended to leave his spouse. Mr. Hall testified that Mr. Evans told him after Ms. Phelan had been hired that he had in fact left his wife and family but that Ms. Phelan had not left her husband and family. Her failure to do so caused considerable stress to Mr. Evans.

It is unclear on the evidence to what extent and for what period the affair in fact was interrupted after 2002. Ms. Phelan testified as to an incident at her workplace out west in January 2003. Mr. Evans who resides in Ontario went out west and tried to contact Ms. Phelan at her workplace in such a manner that her employer had to ask him to leave the premises.

In addition Ms. Phelan testified that when she started as a steward in training in 2004 she tried to keep the location of her Toronto residence secret from Mr. Evans but he followed her home after work one day. She tried to insist that they meet only in public places and she testified that he hit her at one of the meetings they had in 2004.

Ms. Phelan testified that the tumultuous relationship included verbal and physical abuse as well as intimate sexual relations which she said she carried out because she was afraid of Mr. Evans and his threats, including the embarrassment she felt, and she could “see no way out”. She said that Mr. Evans threatened to send to her husband and sister copies of e-mails Ms. Phelan had sent Mr. Evans, no doubt in continuation of the affair and expressing her caring for him. No such e-mails were provided to us. If they were not of that nature, there would have been no value in extorting her to continue the relationship with him by that pressure. Ms. Phelan testified that in fact in 2004 Mr. Evans did send copies of her e-mails to him to her husband and her sister, as he had threatened.

In 2005 with her training period completed, she was employed by the Commission as a steward for the thoroughbred racing season. In 2005, Mr. Evans sent three e-mails to Ms. Phelan’s supervisor, Mr. Hall, casting doubt on Ms. Phelan’s conduct as a steward. These e-mails, entered as Exhibit 3E, related to a horse which had been trained by Ms. Phelan’s husband in Alberta and whose owners decided to race in Toronto at Woodbine. In the February 2005 e-mail Mr. Evans wrote that he spotted the name of the horse on the stall applications to Woodbine, which a local trainer had made. He pointed out that the business association between Ms. Phelan’s husband and this local trainer “may have implications for one of your stewards”. Mr. Evans sent a further e-mail in April 2005, this time to both Mr. Hall and to the Director of Racing of the Commission, telling them about Ms. Phelan talking to the local trainer and looking at the horse which was on the track for training at the time of the conversation. Again, he expressed concern as to the perception of her interest in the horse. He wrote a further e-mail on July 1st, again to Mr. Hall and the Director of Racing, indicating that he had spoken to Ms. Phelan about this horse and saying:

“While I may betray her confidence, I have no alternative but to report a conflict of interest as I see it. Having Linda Phelan act as a steward with Royalty Boy running would be inappropriate and irresponsible with the foregoing knowledge.”

He copied the e-mail to the executive director of the provincial thoroughbred horsemen’s association.

Mr. Hall testified that it was unusual for Mr. Evans to show this level of attention on such an issue. He further testified that, because of the close knit racing community, it is not unusual for such a circumstance to arise and there is a standard procedure followed in such circumstances. This procedure involves his attending at the Stewards’ stand for the race in question, in case an issue should arise on which a panel of three stewards must make a ruling. Mr. Hall is then in the position to officiate in the place of the steward who is in a conflict position.

The intent of Mr. Evans’ e-mails to Mr. Hall clearly was to cast doubt on Ms. Phelan’s professional conduct with her employer. This series of e-mails and the unusual interest Mr. Evans took in her situation in the context of the other evidence we have supports Ms. Phelan’s evidence that she was at this time trying to break off the relationship. We conclude that Mr. Evan’s e-mails had less to do with the integrity of racing, given the existence of a standard procedure for handling such issues, and more to do with a troubled time in the relationship.

Less than a week after the last of the three e-mails, Mr. Evans followed Ms. Phelan to a park where he assaulted her in front of members of the public including an off-duty police officer who reported the assault to the police. Mr. Evans was charged on July 5, 2005 with assault. Ms. Phelan testified that she gave a statement to the police concerning that assault and that she felt awful for Mr. Evans about the assault charge. As a condition of bail, Mr. Evans was required to stay over 200 metres away from Ms. Phelan, apparently at all times.

While she had not complained to Mr. Hall of Mr. Evans’ physical violence, Mr. Hall became aware of the assault charge and he instructed one of the ORC investigators to follow up and confirm that the charge had been laid, and that there was a bail order restricting Mr. Evans’ activities. When Mr. Hall spoke to Mr. Evans about it, Mr. Evans dismissed it, saying that the charges would be thrown out in a month. Mr. Hall testified that he regarded the responsibility for complying with any terms of a bail order to be rightfully on Mr. Evan’s shoulders. Mr. Hall also testified that if he had been aware of the physical violence against Ms. Phelan he would have taken the appropriate steps to prevent any recurrence in the Commission workplace. This Commission expects such leadership to be part and parcel of the responsibilities of senior staff of the Commission.

It is admitted before us that Mr. Evans was in daily violation of that bail condition requiring him to distance himself from Ms. Phelan. He used the back entrance to the offices where the Commission offices and the WEG thoroughbred racing offices are located in the same building. There is a front entrance that could have provided separation if he had used it (while not providing the necessary distance) to avoid walking past the Stewards’ office where Ms. Phelan would sit either on her own or with other stewards. He was also in violation in that he continued to represent WEG’s interests before panels of the stewards including Ms. Phelan.

Ms. Phelan testified that not only did Mr. Evans not stay 200 metres away from her, but that he would come into the Stewards’ office when she was alone and strike her on the back of the head or on the thigh, all places where bruising from such blows would not be visible to others. He would shout at her and call her “slut” and “stupid”.

Her evidence of his coming to the Stewards’ office and of his shouting at her was corroborated by the evidence of the Commission licensing agent, Tiffany Roach, an employee of this Commission whose office is next door to the Stewards’ office. Ms. Roach testified that she would see Mr. Evans go to the Stewards’ office when Ms. Phelan was there alone. Despite the closed door, she would hear him shouting at Ms. Phelan and Ms. Phelan replying in a much softer voice than he used. She heard him use offensive words to Ms. Phelan, and, when he left the Stewards’ office, she would meet Ms. Phelan in the hall where her appearance would confirm that she was upset and frequently crying.

Kathryn Sullivan, who is Mr. Evans’ secretary, was called to testify by counsel for Mr. Evans. She testified that she never heard Mr. Evans raise his voice in the course of his business at the offices. She said that her office is located one office removed from his and in a separate part of the building from the Stewards’ office where the alleged assaults and shouting occurred. We find that Ms. Roach whose office was beside the Stewards’ office had a better opportunity to hear and observe the activities in that office than did Ms. Sullivan. In addition we note that Mr. Evans is responsible for Ms. Sullivan’s performance assessment. They work closely together. Ms. Sullivan also testified that the other Woodbine office staff referred to Ms. Phelan as Mr. Evans’ girl friend and characterized her first employment at the race office as “getting in the way”. Those staff did not regard her as a good steward. Indeed, Mr. Hall testified that two of the Woodbine race office staff came to him to complain when he hired Ms. Phelan as a steward, given what they knew of her relationship with Mr. Evans. Given that Ms. Sullivan’s source of information about Ms. Phelan was in large part this negative office gossip, and since her work did not require her regularly being present in the area of the Stewards’ office, we do not find her evidence on the issue of Mr. Evans’ conduct to be persuasive.

Steward William McMahon testified that in 2005 when the Stewards were officiating at races in the Stewards’ stand at the track, Ms. Phelan would get frequent phone calls and she would speak on the cell phone in a hushed tone. Mr. McMahon testified that the fact that Ms. Phelan and Mr. Evans had had an affair and had an ongoing relationship was known as a result of the omnipresent rumours that circulate within the backstretch community. He testified that Ms. Phelan would sometimes refuse to take the calls from Mr. Evans and she would ask him to tell Mr. Evans that she did not wish to speak to him. When Mr. McMahon did that, Mr. Evans, he said, would apologize and would say that he would address the Board of Stewards. Mr. McMahon testified that finally he told Mr. Evans that if he had something to say to the stewards on racing issues, he should make those representations to the whole Board of Stewards, not just to one steward. He said that in meetings of the Board of Stewards in which Mr. Evans made presentations on behalf of WEG for a ruling by the Board, he would be “a little strong” when he addressed Ms. Phelan. Mr. McMahon testified that there were a lot of issues in racing that Mr. Evans was “pretty strong on”, but that in his appearances before the Board of Stewards, he could not recall him being that strong in his submissions except when Ms. Phelan was there. Mr. McMahon testified that Ms. Phelan never discussed her relationship with Mr. Evans with her fellow Stewards until April 2006 at Fort Erie racetrack when she told him and Steward Fernandes about the extent of the abuse and that she was resigning.

Steward Russ Fernandes also testified. He said that he was first aware that the relationship was something other than professional in 2005 when Mr. Evans called the Stewards’ stand and asked for Ms. Phelan and she declined to take the call. She told Steward Fernandes that she and Mr. Evans had been friends for some time and they had had various discussions, and she just did not want to talk to him. On another instance, Steward Fernandes retrieved a message left by Mr. Evans on the Stewards’ message line that Ms. Phelan was responsible for half the cost of a motel room. He also recalled one incident when he and Steward Grubb and Ms. Phelan were dealing with a racing issue and Mr. Evans was making comments on it. Steward Fernandes thought that Mr. Evans’ comments were directed solely to Ms. Phelan, rather than his usual practice of addressing the whole Board. Steward Fernandes’ impression was that there was something more going on than a dispute over racing and that Mr. Evans was very aggressive in his comments. He also testified as to the disruptive telephone calls that Ms. Phelan got in the Stewards’ stand, which he attributed to Mr. Evans.

Steward Gunner Lindberg also testified. On June 5, 2005 the Stewards made a ruling finding Mr. Evans to be in violation of the Rules of Racing for disrespect for failure to comply with an order of a Steward, specifically Steward Lindberg, concerning the entry of a horse to race, and fining him $500.00. According to Ms. Phelan, Mr. Evans was particularly angry about this ruling and he vented this anger at her. Mr. Evans appealed the ruling and, following a hearing, the Commission issued ruling 2005 TB 015, dated November 9, 2005, granting his appeal. In the reasons at page 3 the Commission described the dispute as follows:

The case, however, soon developed into a dispute as to who was in control in the race office and the overriding supervisory power of the Stewards. The case was argued on the basis of two apparently inconsistent principles, the first being the principle that is expressed in Rule 16.02.04 concerning the supervisory power of the Stewards including their power to attend to issues of eligibility. The other principle involves the principle in Rule 6.10.02, the responsibility of the Race Secretary. WEG does not dispute the Stewards’ supervisory power but to the extent that the race office is empowered to make decisions, specifically as to whether or not to accept an entry, WEG objects to encroachment into that jurisdiction by the Stewards. The Race Secretary’s office frequently rules that entries are ineligible for one of the many reasons that can come into play. The passing of the entry across the desk does not, according to WEG, mean the entry has been accepted as one of an eligible horse. The entry is not accepted until it has been scrutinized by the WEG staff. Under Rule 6.10.02, for all races, the racing secretary or designated personnel are the only persons authorized to receive entries or scratches.

The Commission found that the horse whose eligibility for entry was the subject of the debate should not have been entered (as Mr. Evans had maintained). On the issue of his misconduct in disobeying a Steward’s order the Commission held at page 4 of the reasons:

No matter who was correct on the interpretation of the Rules, there remains the issue of whether or not Mr. Evans should be disciplined because he refused to obey the order of the Steward. That there is a culture of compliance with the Rules of Racing in the WEG race office is not in dispute. The Commission has been assured that there is no underlying agenda to undercut the obligation to accept the supervision of the Stewards. My impression of all the witnesses that testified is that the pressure of the particular day and the time had much to do with the escalation of the dispute to this point.

In view of the blemish-free record of Mr. Evans as an ORC licensee and my observation of him when he testified, I grant the appeal.

Steward Lindberg testified that Ms. Phelan was faced with the same eligibility problem in Fort Erie and chose to rule, not as he had, but rather in accordance with the position that Mr. Evans had taken on the eligibility of a horse to enter. In both cases the eligibility depended on confirmation of status of the horse on the vet’s list. In the case of the ruling by Steward Lindberg, the vet’s list had confirmed Mr. Evans’ position on the horse, but in the later case on which Ms. Phelan ruled, the eligibility status was not confirmed and a horse that was in fact eligible was not entered to race, when it should have been.

Steward Lindberg also testified that he was for several years an employee of WEG in their simulcast/teletheatre division and that WEG had a workplace harassment policy. He testified that the conduct of Mr. Evans in abusing Ms. Phelan physically and verbally, if proven, would not be in compliance with the WEG policy.

Steward Lindberg also testified that the affair between Ms Phelan and Mr. Evans was well known, that he would see Ms. Phelan and Mr. Evans meet by the Standardbred barn and that sometimes the conversations were heated. He testified that he could hear Mr. Evans talking to her and “you did not want to be in it” because of the loud tone of voice and the harshness of the words. He testified that when she took phone calls in the stand, he could hear Mr. Evans’ voice swearing and yelling at Ms. Phelan. He testified that Ms. Phelan was quite stoic in her response, that she never talked about the calls, and that she would get up and leave the room after the call. Sometimes when she came back, she seemed fine and other times it appeared she had possibly been crying. In these phone calls she just listened. He confirmed that Ms. Phelan never discussed her relationship with Mr. Evans with the stewards. He also confirmed that she would sometimes be upset if she checked her e-mails as well.

On reviewing Ms. Phelan’s testimony and the e-mails sent by Mr. Evans marked Exhibit 2E, it appears that much of Mr. Evans’ criticism and abuse of her had to do with her good working relationship with the other stewards and Mr. Evans’ criticism of the stewards and their decisions on racing issues. Mr. Hall confirmed that, when either Ms. Phelan or Mr. Evans would talk to him about their personal difficulties, the disputes were frequently disputes concerning racing rules or rulings of the stewards. According to Mr. Hall, the disputes and arguments were having an impact on both the offices of WEG and of the Commission at Woodbine. When the e-mails Mr. Evans sent to Ms. Phelan (Exhibit 2E) in which he expressed his dislike of the Stewards and Commission staff were put to Mr. Hall in the course of his testimony, he indicated that Mr. Evans did not indicate the vehemence of his dislike and disdain for the Stewards and the Commission in his regular interaction with the Commission staff and usual conduct towards Mr. Hall. The e-mails from Mr. Evans, however, confirm Ms. Phelan’s evidence as to his antipathy towards the Commission and its employees, his jealousy when she was with the men she worked with, and the profanity he directed to her.

In February 2006 Mr. Evans sent to Ms. Phelan e-mails in which he acknowledged that the affair was over and requested that she provide a statement to his lawyer defending him on the assault charges that had been filed the previous July. Her statement was to be to the effect that the allegations were “false or unfounded or whatever.” (See Exhibit 2E page a.) He was attempting to arrange matters so that the charge of assault against him would be dropped. Unless the charge was dropped, it had to be disclosed on his annual Commission licence application. Mr. Hall confirmed that he discussed this issue with Mr. Evans. In an e-mail copied in Exhibit 2E at page b, Mr. Evans promised Ms. Phelan that he would leave her alone forever and she would have nothing to worry about, if she would do this for him. She did not comply with his request and he made the appropriate disclosure on his licence application. The e-mails indicate a willingness on the part of Mr. Evans to use his ability to give her something to worry about as a quid pro quo for her co-operation which he needed. In her testimony before us she was quite clear that he had assaulted her and further that there were good times in their relationship and she had cared for him in the past.

Ms. Phelan returned to her position as steward in 2006 in April. Exhibit 2E is a series of emails sent by Mr. Evans. The e-mails in Exhibit 2E at pages a and b sent by Mr. Evans in February 2006 indicate that Ms. Phelan has broken off the relationship and, as noted above, deal with the issue of his efforts to get the assault charge from the previous July dropped. The remainder of the e-mails was sent in the period April 13 to April 17, 2006. One of the witnesses who spoke in support of Mr. Evans correctly described them as “ugly”. In them Mr. Evans complains about Ms. Phelan telling him in front of two other stewards that she did not want to see him, he declares war on her and says that they are enemies. On April 14, 2006 at 12:59:30 he sent an e-mail to her that they will be enemies until they die (e-mail e, Exhibit 2E) and at 13:01:26 the same day he sends another e-mail (e-mail f, Exhibit 2E) saying

“I think it important that bruce [sic] and your kids get the mails Ive [sic] received from you. Dont [sic] you? At least they are all good news, that you have broken up with me. but i think its [sic] important they know youve [sic] cheated to this day.”

In a later e-mail he reveals that he has discussed the details of their relationship with his secretary, staff in his office and others. He tells Ms. Phelan that everyone agrees that she has to leave. Ms. Phelan described these communications in her testimony emotionally, saying that she had nothing left to lose, that she felt threatened and afraid of him.

Ms. Phelan testified that she officiated at Woodbine at the first afternoon of races of the 2006 season, April 14. After the races in the afternoon, she went to Mr. Evans’ office because of his threat in his e-mail referred to above to send copies of her e-mails to her husband and children. She testified that Mr. Evans dialed Mr. Hall’s phone number so she could speak to him and resign her position as a steward.

Mr. Evans and Ms. Phelan had at various times previously chosen to discuss their personal relationship difficulties with Mr. Hall. He testified that on April 14 he received a call from a tearful Ms. Phelan saying that Mr. Evans was with her and forcing her to resign, that she did not want to resign but he was forcing her to do so or he would send e-mails she had sent to him to her family.

Mr. Hall testified that in this particular incident he could hear Mr. Evans’ voice in the background of the call and he told Ms. Phelan to get away from Mr. Evans and that they would talk in the morning. Within seconds of her hanging up, Mr. Evans called Mr. Hall saying that he would not send the e-mails to her family and Mr. Hall told Mr. Evans he would talk to Ms. Phelan in the morning. He met with Ms. Phelan on the following day and it was agreed that she would be transferred a week early to work as a steward at Fort Erie and he arranged for a Commission car for her to use.

Ms. Phelan testified that on Sunday April 16 she officiated in the Stewards’ stand at Woodbine. There she received a cell phone call from Mr. Evans saying that she was to get out of the Stewards’ stand right away and that he would “drag me out by my hair”. She did not work on the Monday. Mr. Evans came to her residence but she sent him away. He tried to contact her by phone, leaving a message threatening to kill her. She called the police to report the threat. On the Tuesday April 18^th she went to the Woodbine backstretch Stewards’ office alone in order to cover for one of the other Stewards who was scheduled to work there that day. Ms. Phelan received a call from a friend that her daughter had received copies of her e-mails forwarded by Mr. Evans and was very upset, and that Mr. Evans had called her friend and spoken with her. She testified that she felt she had nothing left to lose, so she wrote out a letter of resignation effective at the end of June and left the office.

On April 19^th when Mr. Hall went to his office he found the letter of resignation from Ms. Phelan. He had a subsequent call with Ms. Phelan indicating that she was waiting for the police to come to her home because of the threatening message left by Mr. Evans on her cell phone. The following day, when Ms. Phelan had gone to Fort Erie to officiate at the races there, Mr. Hall received a call from Steward Fernandes in which he told Mr. Hall about the conversation between himself and Steward McMahon and Ms. Phelan, including Ms. Phelan’s recounting to them the details of the assaults in the Stewards’ office by Mr. Evans and revealing to them an incident that resulted in her ribs being injured so that she could not participate in a golf tournament with the other stewards. She had made other excuses for her absence in that situation rather than reveal Mr. Evans’ assault on her. Mr. Hall called in the Commission Investigations Unit.

Ms. Phelan’s testimony confirms that she wrote the letter of resignation, left it on Mr. Hall’s desk, and went home. She did not go into work on the Wednesday because she could not handle it. On the Thursday she went to Fort Erie to take up her post and contacted her husband. She revealed to her fellow Stewards Fernandes and McMahon the physical and verbal abuse from Mr. Evans. She gave her statement to the ORC investigator and to the police. Ms. Phelan’s husband came to Toronto and drove her back to Alberta where she has been undertaking therapy while on sick leave from the Commission.

On April 21, 2006 Mr. Evans was charged with breach of the terms of his bail and a further criminal charge of uttering death threats was laid.

CONCLUSIONS

It is admitted that Mr. Evans is in breach of the conditions of his bail that were imposed as a result of the assault charge laid in July 2005 on the complaint of the off-duty policeman. Through his counsel he admits that he was charged with assault on July 5, 2005 and further criminal charges were laid against him on April 21, 2006 as set out in the Notice issued by the Executive Director. It is also admitted that the victim of the alleged assault and death threats is a Commission official, specifically a Steward.

Counsel for Mr. Evans attacks the credibility of Ms. Phelan on these grounds:

a) a sexual relationship continued between them even after the alleged incidents of physical and verbal abuse started and while they continued;

b) the complaints of physical abuse were not made promptly;

c) Ms. Phelan did not save the voice mail message containing the threat to her life;

d) Ms. Phelan only provided copies of e-mails in which Mr. Evans is portrayed in a very adverse way, not the many e-mails in which she expressed her caring for him or that show him in a good light;

e) She called him on her cell phone just as he called her on his; and

f) She threatened to send his e-mails expressing his caring for her to his wife, just as he threatened to send her e-mails to her husband.

We have reviewed the evidence of Linda Phelan and that of the other witnesses and find her to be a credible witness whose allegations against Mr. Evans are corroborated by the evidence of other witnesses. She explained the lack of e-mails from Mr. Evans from the happier times of their relationship on the basis that she did not keep e-mails over a long period as he did. She explained that she deleted the threatening voice message from her phone without thinking about the need to preserve it. She apparently wanted to get rid of it, and, given the sequence of events and the threats that he had made on the earlier days and his pressure on her to extort a resignation from her, the explanation rings true to us. She acknowledged that she called him on her cell phone.

She explained the continuation of sexual relations, even while she was trying to end the affair, on the basis that she could not see a way out of the relationship and that, based on what she now understands as part of her counselling, her reaction to his threats and the continued relationship were the result of the abuse she had suffered. She acknowledged that there were many times when the relationship was a good one.

She explained the lack of complaint about the physical assaults to anyone as they occurred on the basis that she was ashamed and embarrassed that this was being done to her. The testimony of Ms. Roach and Stewards Fernandes, Lindberg and McMahon support her testimony that she was verbally abused, even if they did not see the physical abuse when it occurred or any bruises, and she did not complain about the physical abuse until much later. Their evidence corroborates her testimony as to Mr. Evans’ temper and aggressiveness in dealing with her. Her explanations for not making an early complaint to her fellow employees about what was happening in the Stewards’ office and elsewhere are reasonable in the circumstances, given the standard set in the Commission that staff should fulfill their regulatory responsibilities in a professional manner.

In the course of the evidence we heard testimony from witnesses called on behalf of Mr. Evans. The evidence of Mr. Charles Hopmans was that he was aware of what he described as “mild rumours” of an affair but that there was never anything negative. He described it as “giggling by girls”. Mr. Evans approached him to testify in this matter. Mr. Evans described the situation to him as one in which a woman with whom he had had an affair had been scorned by him and therefore was seeking revenge by complaining about his conduct. He told Mr. Hopmans that he was attempting to end the relationship and that “she is out to get me”. After reviewing some of the e-mails that have been admitted in evidence, Mr. Hopmans agreed that “this is a little bit ugly” but indicated he still stood by Mr. Evans and that he never saw the dispute or affair affect him on the job. He acknowledged that if Mr. Evans’ extreme conduct was in the office, it was “a booboo”.

The e-mails we have in evidence establish that in fact Ms. Phelan was attempting to end the relationship, not Mr. Evans. It was also clear that the difficulties in the relationship were affecting Mr. Evans in his dealings with the Board of Stewards. Finally it is clear that Mr. Evans took inappropriate steps in attempting to force the resignation of a steward from her employment with the Commission and in his efforts to get her to adjust her statements concerning the assault in July 2005 on the basis that she would not get any more trouble from him if she did. The other witnesses called on behalf of Mr. Evans, being Mr. Richard Lester, Mr. Reade Baker, Mr. Tallon and Mr. Sabourin, like Mr. Hopmans, were clearly surprised when the exhibits containing the e-mails in these proceedings were put to them. Some of them at least had not been told the details of the assault charge or the charge concerning death threats, or of the bail order terms and the violation of that order that has been admitted to before us.

Mr. Lester is a senior executive and a director with responsibilities for the governance of those corporations on whose boards he serves, including whistle blowing and protection of employees from harassment in the workplace. It was in that context of his own ethical standards that he gave his testimony concerning Mr. Evans’ trustworthiness. He was clearly taken by surprise by the evidence that this panel had received when it was put to him in cross-examination. Mr. Baker is a thoroughbred trainer and therefore works daily on the backstretch. He indicated he had heard rumours but, until he actually heard facts sworn to, he would not accept the statements adverse to Mr. Evans.

Mr. Evans holds a position of considerable authority in WEG. He is one of a very small group of senior executives in an organization, which is the dominant association for thoroughbred racing in Canada and indeed in the entire industry in Canada. Its influence on the sport extends to the international level. As is clearly articulated in the letters in Exhibit 10E, Mr. Evans’ knowledge of the industry makes him a person whose opinion is respected by many leaders of the industry. As Ms. Phelan wrote on April 13, 2006 sarcastically but almost presciently in response to his threat to send her husband and children evidence of her ongoing involvement with him,

“Good thing everyone has your side of the story and you come out looking like some kind of saint in all this.” (Exhibit 2E e-mail f)

Mr. Evans’ ability to use his position to marshal the opinions of others in the workplace and in the industry to her detriment and his benefit is illustrated in his e-mail to her of April 15, 2006 in which he discloses a discussion he had with Kathryn [Sullivan]

“so this is necessary, although i [sic] am attached emotionally to you. And that is what i [sic] said to her, and she agrees its [sic] probably difficult, but for the best, and the working environment will be much better if you and i [sic] are not in the same building or racetrack. Thats [sic] consensus from everybody, including Eddie. its [sic] just time for you to go.” (Exhibit 2E, e-mail j)

It does not reflect well on Mr. Evans that witnesses brought forward on his behalf were expressing their opinions on such faulty and incomplete information obtained in some instances from him, and the evidence supports our view that Mr. Evans used his good reputation inappropriately to cast doubt on the credibility of Ms. Phelan by relying on the fact that none of these witnesses were aware of the complaints against him in any detail. Mr. Evans clearly relied on his credibility and standing in the community to protect him from any allegations, however true they might be. This evidence supports the Executive Director’s conclusion that Mr. Evans will not act with honesty, integrity and in accordance with the law.

We have also been provided with a copy of an e-mail (Exhibit 4E) from Mr. Evans to Terry Stone Director of Racing for the Commission and Mr. Hall, and copied to two senior executives at WEG concerning the impact of the suspension from work imposed last spring pending the outcome of the ORC investigation, which resulted in the Executive Director’s Order of Immediate Suspension and Notice of Proposed Order. In that e-mail Mr. Evans outlines his desire to continue to earn his living in racing, his family situation, his enthusiasm and good work and dedication to the sport. Of the allegations of Ms. Phelan he writes:

“Recently I have tried to correct a personal problem by separating myself from a personal affair with Linda Phelan. My honesty in exposing the details to both my spouse and her spouse resulted in Linda’s allegations. While I am extremely sorry that the affair ever happened, I stress that this was a personal relationship which started 4 ½ years before Linda became a steward for the ORC. The personal relationship did continue and probably did add some stress by working in close proximity. However I did deal with Linda at work on …when necessary. Given the chance I would elaborate on any questions you may have. I appeal to you to allow me to continue my career at Woodbine and levy any fine or probation you feel is justified. I look forward to the opportunity to explain anything relevant to the allegations, in detail.”

This e-mail was entered as an exhibit on the basis that Mr. Hall confirmed in his testimony that he had received it, but Mr. Evans never took the stand to be cross-examined on the statements he made in it. Therefore it cannot receive the weight that it might have if Mr. Evans had testified.

There are significant differences between statements in this e-mail and e-mails contained in Exhibit 2E sent by Mr. Evans to Ms. Phelan. For instance, he says in this e-mail of April 29 that he “recently tried to correct a personal problem”. Exhibit 2E indicates that he acknowledged that as of February 2006 she had broken off the affair and her testimony is that she tried to avoid him when she came to work in Toronto by hiding the location of her personal residence from him and agreeing to only meet in public, as long ago as 2004. He describes the affair as starting 4 ½ years prior to Ms. Phelan becoming a steward. What he does not reveal is that he hired her during the course of the affair as an entry clerk in his own office and he gave her a very positive reference in support of her application for the Steward position. He refers to his “honesty” in telling his spouse and Ms. Phelan’s about the affair, but it is clear in the e-mails in Exhibit 2E and the testimony of Ms. Phelan that the lack of disclosure of the ongoing affair and her understanding of the secrecy of their relationship was a lever he used to continue the affair and to punish Ms. Phelan. Further, the disclosure of the affair in the first instance occurred in 2002 and the evidence of the allegations against Mr. Evans postdate that disclosure by years.

The evidence we have received does not support the description of the relationship contained in the e-mail of April 29, 2006. To say that “The personal relationship did continue and probably did add some stress by working in close proximity” is a significant understatement, in light of Mr. Hall’s evidence of the concern of the Race Office staff and the disruption caused to both the Commission staff and the WEG Race Office staff by this tumultuous relationship. Clearly he has not been frank and honest in his representations on his own behalf in these proceedings to senior Commission staff and to his own superiors. This lack of honesty in the wake of the events earlier in the month of April 2006 undermines any confidence we might have that Mr. Evans truly understands the requirements of honesty and integrity in his dealings with the Commission or his employer WEG.

We find that Mr. Evans has acted in a disrespectful manner towards the Stewards, that he has permitted his anger and revenge in a personal relationship to affect his dealings with the Commission Stewards and senior staff on behalf of WEG and his dealings with the Board of Stewards as a decision-making body charged with the responsibility to enforce the Rules of Thoroughbred Racing. He has spread inaccurate information about and used his position to damage the reputation of a respected steward. He made the workplace unsafe for a Commission official who has testified before us that she was repeatedly hit in the Stewards office and faced the ongoing potential for continued physical abuse. He has shown contempt for the independence of the Commission and the stewards and the public interest in the integrity of their decision making power. We find that he did threaten, use profane language to and assault one of the stewards in the Stewards’ office on the Woodbine backstretch. Even if we were unable to make the finding that the assaults occurred, we find his conduct otherwise reprehensible. We find that he harassed one of the stewards with an excessive number of phone calls to the steward in the stand to the point where another steward had to ask him to desist. He attempted to force the resignation of a steward based on his own personal issues and to interfere with the Commission’s ability to choose and employ the stewards it believes are best suited to do the job. He attempted to extract a resignation of a Steward with threats to humiliate her and hurt her. The antagonism and the fact that the relationship was frequently troubled spilled into the racing officiating.

Such conduct (with or without the physical violence) on the part of a senior executive of WEG, whether or not it flows from a personal relationship, is totally at odds with the regulatory structure and the protection of integrity in the sport. The Commission’s officials protect the public interest and the integrity of this sport, and must be treated with respect, whether or not a licensee agrees with a ruling or harbours a broadly based dislike of the Commission or its staff. The evidence we have received establishes Mr. Evans’ lies, profanity, assaults and interference with the stewards’ officiating at races and his disrespect towards the stewards and the Commission. This evidence has not been rebutted with any specific credible testimony. We find that the evidence supports the Executive Director’s finding that Mr. Evans will not act with honesty and integrity as a licensee of this Commission and justifies the immediate suspension of his licence.

PENALTY

The Administration is requesting a permanent suspension of Mr. Evan’s license. Generally speaking, violations of Rule 16.05 (c) should attract severe penalties and the conduct of Mr. Evans goes far beyond what is described in that rule. Under Section 22(6) of the act, a panel of the Commission may confirm or set aside the proposed order or direct the Director to take the action that the panel considers the Director ought to take to give effect to the purposes of this act. Under the provisions of Section 26(2) no person whose license is suspended may apply to the Director for a licence during the suspension. Under Section 26(1) no person whose licence is revoked may apply to the Director for a licence until at least two years have passed since the revocation. Therefore a permanent suspension is a more severe penalty than a revocation of the licence.

We have carefully considered the evidence of the witnesses that were called and their demeanour in the witness stand during the course of their evidence as well as the letters submitted in Exhibit 10E. We do not doubt the sincerity that underpins the statements and views expressed in those letters. We also accept that Mr. Evans has made a significant and positive contribution to thoroughbred racing in the past and that his knowledge has been and will in the future be useful to the sport. We have been provided with copies of a certificate of completion by Mr. Evans of a course on anger management (Exhibit 8E), letters dated July 14 and July 24, 2006 from McDowall Counselling and Consulting Group concerning the counselling sessions he has attended concerning Anger Management (Exhibits 7E and 11E), and a letter from Catholic Family Services Peel-Dufferin (Exhibit 6E) concerning family counselling he had taken.

We have been referred to several cases and the penalties imposed by this Commission. In the case of Leon Mansfield, 2005 COM SB 027, the Commission fined Mr. Mansfield $5,000 and imposed a three month suspension in all licence categories followed by a further three months for his owner and trainer licenses, thereby permitting him to earn some income as a driver, while preventing him from earning income in his main business of owning and training race horses for six months. Mr. Mansfield was an owner and trainer of a small standardbred operation with his wife. Driving in races formed a very small part of his income. Given the financial situation of the operation, the fine, the suspension, and the probationary term and conditions posed a significant financial burden. Mr. Mansfield was twice convicted of sexual assault of female grooms consisting of inappropriate comments and touching. The panel had evidence of the opinion of a properly qualified professional that Mr. Mansfield had participated in and was continuing with counselling and that there was a low risk of his re-offending. Mr. Mansfield testified before the Commission, as did his wife, as to the history of the convictions, the efforts being made by both of them to prevent any recurrence and his remorse for what had occurred and the harm that he now understood. His wife identified efforts in the management of the staff that she was taking to ensure that her husband was not wrongly accused. Mr. Mansfield was not a senior executive with the powers and responsibilities of a vice president and there was no evidence of the type of physical violence, anger, profanity or hitting leading to ongoing physical pain that is proven here. Nor was there any issue of interfering with the functioning of the Commission’s administration and officiating. In our view a more severe punishment is warranted in this case.

We also referred to the Ruling SB 138/2005 in which Standardbred licensee Richard Zeron was fined $5,000 and fully suspended for 15 days and Ruling SB 137/2005 in which he was fined $20,000 and fully suspended for 35 days. Both rulings arose from an incident in which he conducted himself inappropriately and in an unwelcome manner towards another licensee working in a tack shop on the track premises and making inappropriate comments. His licence carries conditions preventing him from entering the tack shop and requiring a written apology as well as his avoiding interaction with the licensee complainant. Mr. Zeron earns his living in the industry as a very successful driver and each day of suspension would result, given his level of driving success, in the loss of hundreds and more likely thousands of dollars of income. Mr. Zeron does not have an employee/employer relationship in this context and there are other tack shops where he may purchase what he needs. While the length of the suspension is defined in days, the financial penalty of those days and the cash payment are significant. We are concerned, given the situation described in Mr. Evans’ family, that the requirement of a significant cash payment would have significant collateral damaging consequences for his family. Given what we have read and the evidence we have heard, we do not believe that a written apology in this case would be meaningful. Finally, Mr. Evans’ actions very specifically attacked the officiating process and the independence of the stewards. The penalty imposed on Mr. Zeron is not appropriate in this case.

In the Re McNamara decision [1997] O.R.C.D. No. 45, Series No. SB261/1997 (upheld on appeal by the Court of Appeal 1998 CanLII 7144 (ON CA), [1998] O.J. No. 3238, Docket No. C29840, judgment dated August 13, 1998), the Commission found that the licensee was in violation of the Rules of Standardbred Racing for using insulting, offensive and improper language and guilty of gross improper conduct towards the judges in their office. The conduct occurred one evening in the judges’ office in a dispute on a race night concerning a judges’ ruling. McNamara was suspended for 60 days and conditions were imposed on his subsequent participation in the industry. The Commission found that McNamara acted in a totally unacceptable manner towards the judges and was physically removed by security that evening from the track as a result. His conduct was a reaction to a ruling of the judges and there was evidence that the lack of control of his diabetes was in part the reason for his outrageous behaviour that night.

In contrast, here we have offensive language directed to a steward, physical assault in the Stewards’ office and elsewhere on a steward, interference with the stewards in the stand during races, threats against a steward, inappropriate behaviour during the course of proceedings before the Boards of Stewards and deliberate breach of conditions of a bail order extending from no later than July 2005 until April 2006 when Mrs. Phelan left the jurisdiction. While McNamara’s conduct that night might be attributed to a “knee jerk” reaction to an adverse ruling, Mr. Evans’ conduct is deliberate, conscious, devious, and disrespectful, and extended over a period of time when he could and should have been able to show better judgment. To excuse his conduct as being the anger and hyperbole that so often follow the end of an extramarital affair, as suggested by one of those who wrote a letter in support (See Exhibit 10E Tab 1), is to give too little weight to the extended period of abuse and the many opportunities he had for sober second thoughts, the circumstances described by Ms. Phelan and the other witnesses, the disruptions to the Stewards’ office and the Stewards’ stands and with the Boards of Stewards caused by his intemperate and ill-advised actions.

In the Schickedanz case (COM TB 9/2001) the Commission penalized an owner licensee who was the principal of a company, which pleaded guilty to defrauding Canada Mortgage and Housing Corporation and other financial institutions in the course of its business as a land developer and house builder. Mr. Schickedanz’s license was not suspended but rather he was required to make a $100,000 donation to the charitable foundation associated with the racing industry. The criminal court had already imposed a $450,000 restitution order and a $50,000 charitable donation order. The Commission panel’s order also imposed conditions on Mr. Schickedanz’s licence. The dishonesty occurred in a context totally outside racing. The concern of the Commission panel was expressed to be with damage done to the perception of the public of the integrity of the sport. The conduct did not involve either premises associated with or part of the officiating of the sport or dealings with other licensees or, as in this case, with stewards. Therefore the penalty imposed in that case is not an adequate measure of what is appropriate in this case.

In our view a lengthy period of suspension is appropriate for the serious and extended violations of the Rules of Racing and the bail order. Because of Mr. Evans’ history of using threats and his willingness to use others in the workplace to isolate his victim, the significant conditions as described below are required with respect to his re-entry into the industry as a licensee of the Commission. Also, the language in Mr. Evans’ e-mails to Ms. Phelan described an enmity on his part that would last “until we die” (Exhibit 2E e-mail e) and that he “will hate you [Ms. Phelan] from this day forth”. His e-mails indicate a deep anger that is expressed with its vehemence, in the profanity and the frequent use of the denigrating words, language which, according to those who testified on his behalf, is not his usual way of communicating. That he continues to have Ms Phelan under surveillance, watching who she is with and where she goes after she has broken off the relationship is shown in e-mails c and i of Exhibit 2E, the last of which is dated April 17 and is the Monday after he forced her to call Mr. Hall and resign.

The ORC staff, including those who have testified in this hearing, and WEG race office staff work together to ensure that the thoroughbred racing program operates smoothly and with integrity. As Mr. Hall testified, the workplace has been adversely affected and it will take more than one thoroughbred racing season for trust and good relationships to be restored.

In this case we conclude that Mr. Evans’ licence should be suspended for a period of three years commencing May 5, 2006, under our powers in Section 22(6)(b). Three years is a period substantially less than the permanent suspension proposed by the Director. It is substantially more time than the six months in the Mansfield case or the days in the Zeron case or the McNamara case. In Mr. Schickedanz’ case, there were no days imposed but a substantial financial payment. Mr. Evans’ career has been one as an employee in a large corporate environment. He is at an age and holds a position where the loss of his licence for three years will essentially force him to rethink any future participation in live racing in any significant way. The conditions set out in Ruling Number COM TB 006/2006 permitted Mr. Evans to continue to fulfill his job at WEG during the course of these proceedings in the past few months. Those permissive conditions, however constraining, are now over and are replaced by the three-year suspension and the conditions set out below. The penalty we are imposing will prevent him from participating in racing in an authoritative and influential licensed position. This penalty will have to be disclosed in any future application for licensing in this industry and in any related field such as gaming.

In addition, at the conclusion of the three year suspension period, Mr. Evans will serve a one year probationary period and prior to being issued a licence at the end of the suspension period, he

a) must file with the Director proof that he has successfully completed a counselling program to address his use of violence and abusive behaviour towards others, together with additional anger management counselling, and

b) provide a letter from a qualified professional who has reviewed the relevant material including these reasons and the transcript of the evidence in this case asserting that in that professional’s opinion, Mr. Evans poses a low risk of re-offending.

He must abide by certain of the conditions of the Ruling COM TB 006/2006 during the three years suspension and the probationary year, specifically that he shall have no personal contact or communications either directly or indirectly with any Ontario Racing Commission stewards, without their express written consent. Linda Phelan is presently on sick leave from the Commission. The conditions of Ruling COM TB 006/2006 contemplated that Mr. Evans would not have any direct contact with Linda Phelan and so long as she is an employee of the Commission, we believe that the condition should continue in force. We accept that in the future there may be need to review the conditions to Mr. Evans’ licence in the event that Ms. Phelan returns to Ontario to work for the Commission, and therefore the conditions to his probationary licence must include the opportunity for another panel of the Commission to review the conditions of the licence in light of that changed circumstance. Further he will abide by any restraints imposed by order of the courts as a term of his bails or otherwise.

In the event that Mr. Evans is in breach of the terms of his suspension or probation, (including breach of any of the terms of his bails or other court order) his licence will be immediately revoked. Notice of the revocation and the particulars and grounds for the revocation will be provided to him forthwith. The revocation of the licence in those circumstances will delay his return to the industry as a licensee for two years and will permit the Director to consider on any new application that Mr. Evans might file for licensing whether or not he should be licensed again at all. By making provision for notification to Mr. Evans of the revocation and the grounds, he will be informed and able to file a request for hearing, if he wishes, with respect to that revocation.

We have considered and rejected the option of revoking Mr. Evans’ licence at this time, as well as the permanent suspension, in large part because of his past contributions to the sport and the significant support for Mr. Evans from individuals whose integrity, honesty and commitment to the sport is beyond question. The three-year suspension does, however, give Mr. Evans the opportunity to re-establish a good reputation, to take the counselling that is required and to return as a licensee if he fulfills those conditions. The permanent suspension would prevent any such return. The potential for revocation in the event of breach of conditions rather than an additional period of suspension, however, should send a clear message that we regard his actions as a serious assault in its own way on the Commission and the integrity of the sport.

If there is any difficulty in interpretation of the terms of the suspension and probation, either Mr. Evans or the Administration may apply to the Chair for a hearing with respect to the interpretation as may be required.

DATED this 18^th day of September 2006.

________________________________

Lynda Tanaka

Chair