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1 ONTARIO RACING COMMISSION
THOROUGHBRED HEARING
2
IN THE MATTER OF THE Racing Commission Act,
3 2000, [S.O. 2000, c. 20](https://www.canlii.org/en/on/laws/stat/so-2000-c-20/latest/so-2000-c-20.html)
4
-and-
5
6 IN THE MATTER OF THOROUGHBRED LICENSEE: MICHAEL OSBORNE
7
8 --------------
9
BEFORE: James Donnelly Vice-Chair
10
Brenda Walker Member
11
Bernard Brennan Member
12
13
---------------REASONS---------------
14
15 Conducted in the Hearing Room of the Ontario
Racing Commission, 4th Floor, Suite 400,
16 10 Carlson Court Toronto, Ontario, on the 14th day
of November, 2007.
17
18
19
APPEARANCES:
20
Katherine Hensell Counsel for the
21 Administration
22
Harvey Schwartz Counsel for the Appellant
23
24
25
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Reasons - M. Osborne
1 ----- Upon resuming
2 THE CHAIR: Please be seated.
3 Counsel, I propose delivering these
4 Reasons orally. I reserve the right to review
5 the transcript and make such corrections as
6 would be required. Certainly, there will be no
7 change in the result. There will be no
8 substantial change in the Reasons delivered.
9 Joanne Osborne became the owner of the
10 horse Woman's Scorn by virtue of a claim in May
11 of 2006. Thereafter, she entered into an oral
12 arrangement with her brother-in-law Michael
13 Osborne to train the horse. Invoices were
14 rendered for May and June and were paid.
15 The horse raced with indifferent
16 success and did not earn the training bills.
17 Invoices for July and August total $3,534.70 and
18 were not paid.
19 An acrimonious rift occurred between
20 brothers Michael Osborne and Stuart Osborne;
21 Stuart being the husband of Joanne and, in most
22 respects relating to the horse, her
23 spokesperson.
24 Briefly stated, Stuart's version of
25 events was that the horse continued to belong to
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Reasons - M. Osborne
1 his wife. Michael Osborne would, and put this
2 in quotations please, "eat the $3,500", keep
3 the horse over the winter and train it in the
4 spring with the intention that it would return
5 to racing.
6 Michael's version is that Stuart,
7 speaking for owner, Joanne stated they were
8 finished with the horse, they wanted no more
9 bills and Michael Osborne should take the
10 horse. His response was said to be: I don't
11 want your horse.
12 It's not necessary to revisit -- to
13 resolve or even revisit the conflicts in the
14 evidence between the two warring factions of the
15 family; the matter can be resolved without that,
16 and it may be harmful simply to adjudicate upon
17 them for no good purpose.
18 Two things are clear: Firstly, Michael
19 Osborne forged Joanne Osborne's name on the foal
20 certificate and thereby transferred ownership to
21 himself without notifying Joanne Osborne; the
22 owner, or her husband Stuart.
23 Under no construction of the events,
24 as related by either Michael Osborne or Stuart
25 Osborne, was Michael authorised to commit
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Reasons - M. Osborne
1 forgery.
2 Secondly, upon the construction most
3 favourable to Michael Osborne, he had authority
4 to assume ownership but by lawful means. He
5 had no authority; express or implied, to
6 circumvent legitimate steps leading to
7 transfer.
8 It's important in these Reasons to
9 identify the gravity of the actions of forgery,
10 and specifically forgery in relation to Racing
11 documents and, secondly, the gravity of
12 concealing or misleading information relating to
13 ownership and, incidental thereto, the gravity
14 of tampering with ownership documents.
15 Forgery having been committed, clearly
16 there were violations of Racing Rules. There
17 was a violation relating to eligibility to race
18 in terms of failing to disclose the correct
19 ownership interest.
20 There was a violation relating to
21 business practise by the forging and the
22 fraudulent signature on the foal certificate.
23 There was a breach of proper business
24 practise in failure to inform the owner of his
25 actions.
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Reasons - M. Osborne
1 There was a breach of Racing Rules in
2 starting a horse that was known to be ineligible
3 by reason of the misinformation about the
4 ownership.
5 Turning to the question of penalty,
6 the issue becomes much more difficult and
7 complex. Certainly there's an obligation to
8 consider general deterrence in the sense of
9 protecting the public against similar offences
10 by other persons in the future.
11 There's an obligation to consider
12 specific deterrence in terms of preventing
13 further breaches by Michael Osborne.
14 There's an obligation to consider
15 rehabilitation that's certainly in the public
16 interest that Mr. Osborne should be
17 rehabilitated.
18 His actions should be identified and
19 denounced. Attention must be called to the
20 gravity of the errors that he made.
21 There are major mitigating factors for
22 consideration; the fundamental one being the
23 extreme personal family and financial stress
24 visited upon Michael Osborne in the year 2006.
25 His second child was born in March. His first
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Reasons - M. Osborne
1 child was diagnosed with leukemia, and spent
2 months in the Hospital For Sick Children at
3 Toronto, ultimately undergoing a bone marrow
4 transplant. Mr. Osborne made daily trips to
5 Toronto to visit his son and family who were in
6 residence at the McDonald House adjunct to the
7 hospital.
8 As a result of that time commitment,
9 he was obliged to scale back his racing
10 activities. He sustained reduced income as a
11 result. His tax return, filed in evidence,
12 would indicate total earnings or total income of
13 $3,583.12 for that calendar year. That would
14 indicate that he was scarcely in a position to
15 eat an account receivable of $3,500. That
16 $3,500 was not paid.
17 Mr. Osborne was responsible for the
18 care of the horse over the winter and for the
19 spring training. He gave evidence that the
20 cost of carrying a horse was $47 and some cents
21 a day. None of that was recovered by him.
minicounsel