IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF THE APPEAL OF
THOROUGHBRED LICENSEE MICHAEL OSBORNE
Thoroughbred licensee Michael Osborne appealed Stewards’ Ruling Number TB 4837/07, which suspended him for 180 days (90 days stayed) for violation of Rules 15.09.01 (a) (b) (g) (j), 15.07.02 and 16.11.04 of the Rules of Thoroughbred Racing.
On November 14, 2007, a Panel of the Ontario Racing Commission consisting of Vice Chair Hon. James Donnelly, Commissioner Bernard Brennan and Commissioner Brenda Walker convened to hear Mr. Osborne’s appeal concerning the order of finish.
Katherine Hensel appeared at the hearing for the Administration and Harvey Swartz appeared on behalf of Mr. Osborne.
On hearing the evidence of Steward Russ Fernandes, Joanne Osborne, Stewart Osborne, Cynthia Marie Whalen, Florence Thomson, Blair Ryan, Dr. Crawford, and Michael Osborne, and on reviewing the exhibits filed with the Commission, and on hearing the submissions of Mr. Swartz and counsel for the Administration, the Commission DISMISSED the appeal, but varied the penalty by extending the stay of the suspension to 150 days.
Written reasons for the decision are attached to this Ruling.
The Panel’s Reasons for Decision form part of the transcript, which is attached to this Ruling.
DATED at Toronto this 27th of November 2007.
BY ORDER OF THE COMMISSION
John L. Blakney
Executive Director
1ONTARIO RACING COMMISSION
THOROUGHBRED HEARING
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IN THE MATTER OF THE Racing Commission Act,
3 2000, S.O. 2000, c. 20
4 -and-
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6 IN THE MATTER OF THOROUGHBRED LICENSEE: MICHAEL OSBORNE
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BEFORE: James Donnelly Vice-Chair
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Brenda Walker Member
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Bernard Brennan Member
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---------------REASONS---------------
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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.
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APPEARANCES:
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Katherine Hensell Counsel for the
21 Administration
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Harvey Schwartz Counsel for the Appellant
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Reasons - M. Osborne
1 ----- Upon resuming
2THE CHAIR: Please be seated.
3Counsel, I propose delivering these
4Reasons 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
Reasons - M. Osborne
- his wife. Michael Osborne would, ”eat the
2 $3,500", keep the horse over the winter and
3 train it in the spring with the intention that
4 it would return to racing.
5Michael's version is that Stuart,
6 speaking for owner, Joanne stated they were
7 finished with the horse, they wanted no more
8 bills and Michael Osborne should take the
9 horse. His response was said to be: “I don't
10 want your horse.”
11 It's not necessary to resolve
12 or even revisit the conflicts in the
13 evidence between the two warring factions of the
14 family; the matter can be resolved without that,
15 and it may be harmful simply to adjudicate upon
16 them for no good purpose.
17 Two things are clear: Firstly, Michael
18 Osborne forged Joanne Osborne's name on the foal
19 certificate and thereby transferred ownership to
20 himself without notifying Joanne Osborne; the
21 owner, or her husband Stuart.
22 Under no construction of the events,
23 as related by either Michael Osborne or Stuart
24 Osborne, was Michael authorised to commit
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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 providing misleading information
13 relating to ownership and incidental thereto,the
14 gravity 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.
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. It is 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
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 in hospital and family
6 who were in residence at the McDonald House
7 adjunct to the hospital.
8 As a result of that time commitment,
9 he was obliged to scale back his racing
10 activities. He sustained reduced income
11 His tax return, filed in evidence,
12 indicates total income of $3,583.12 for
13 that calendar year. That would indicate
14 that he was scarcely in a position to “eat”
15 an account receivable of $3,500. That
16 $3,500 remains paid.
17 Mr. Osborne was financially responsible
18 for the care of the horse over the winter and for
19 the 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.
22 The horse did finish second when he
23 raced it in May of 2007 but, because of the
24 failure to disclose, the purse money was
25 redistributed and he lost that purse.
Reasons - M. Osborne
1 MEMBER WALKER: It's May.
2 THE CHAIR: May. Yes, thank you.
3 Please correct that. Thank you, Brenda.
4 THE CHAIR: He lost the horse. It was
5 returned to Joanne Osborne by virtue of the
6Stewards' order. Mrs Osborne raced it with
7 modest success and ultimately sold her remaining
8 interest.
9 Michael Osborne has been in the horse
10 business for thirty years; the last eight or
11 nine years as a trainer. He had a rule
12 infraction about five years ago relating to
13 ownership. The penalty imposed was $100.
14 Apparently, it was not seen as a serious
15 infraction at that time.
16 At the conclusion of his testimony,
17 Mr. Osborne asked permission to make a statement
18 to the Panel. His lawyer concurred that he
19 should do so. The statement was as follows:
20 "Thank you. I mean, I'm guilty
21 signing them papers. I know I'm guilty but
22 this is my only livelihood and I can't take a
23 hit like that. I'm out of the racing
24 business. I'm done. That's all I've got to
25 say."
Reasons - M. Osborne
1 The Panel does not see Mr. Osborne as
2 a bad person nor as a threat to the racing
3 industry. If this matter can be dealt with in
4 a fair and proper manner and in such a manner as
5 to not put him out of the business, it would be a
6 result to be desired.
8 In our view, the theory advanced in
9 Argument that this was tantamount to a theft was
10 something of a mischaracterisation. The horse
11 had an uncertain value in October of 2006 but it
12 was probably by the pound. At that time, it was
13 questionable whether it would ever race again.
14 Restating the obvious, but doing so
15 for the purpose of emphasis, the transgressions
16 were serious, fundamental racing violations; the
17 forgery and the ownership and the business
18 practise.
19 Against that, Mr. Osborne gained
20 nothing by his wrongdoing. He has suffered
21 much in terms of the jeopardy for himself and
22 his young family with his racing business in the
23 balance.
24 In further mitigation, and this is
25 simply for the purpose of discussion, accepting
Reasons - M. Osborne
1 without deciding, that he -- that Michael
2 Osborne thought Stuart and Joanne had walked
3 away from or abandoned the horse to him, the
4 substance of what he did was not wrong; that is
5 taking over the horse, but he was very wrong in
6 the method by which he accomplished that end.
7Through the time frame at issue, Mr.
8Osborne was stressed in the extreme in the very
9 central elements of his life; his child, his
10 family and his business. His cry for help from
11 the witness box was the cry of a lost soul.
12 His circumstances, as brought into focus by that
13 desperate plea, demand compassion and mercy to
14 such an extent that this Decision must have a
15 stand-alone capacity. It will have absolutely
16 no precedent value as a penalty standard.
17 The penalty imposed in this case is
18 driven by the specific facts of the case. The
19 overriding consideration is the compassionate
20 aspect.
21 In net result, the Appeal is dismissed
22 subject to a variation of the Judges' Order.
23 The Stay of 90 days is extended to a Stay of 150
24 days. Otherwise the terms and conditions of
25 the Stewards' Order remain.
Reasons - M. Osborne
1 The 30 days to be served in any
2 event, will commence on the first day of the
3 Spring Meet at Fort Erie, it being our
4 understanding from the evidence that Mr. Osborne
5 does not race at Woodbine.
6 The Panel wish to express their
7 appreciation of the assistance given so ably by
8 Counsel in dealing with this difficult
9 matter. Thank you very much.
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Reasons - M. Osborne
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5 I hereby certify the foregoing to be
6 a true and accurate transcript as taken
7 by me to the best of my skill and
8 ability.
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11 _____________________________
12 Christine Gilmour, B.A.,C.S.R.
13 Toronto Court Reporters
14 1410 - 65 Queen Street West, Box 69
15 Toronto, Ontario M5H 2M5
16 (416) 364-2065
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