Kevin Skilton, Les Ecuries Giroux Inc. and Jacques Caron, 2008 CanLII 88993

Ontario Racing Commission

TB RULING NUMBER COM SB 032/2008

COMMISSION HEARING TORONTO, ONTARIO – DECEMBER 8, 2008

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

AND IN THE MATTER OF THE APPEAL OF

STANDARDBRED LICENSEES KEVIN SKILTON, LES ECURIES GIROUX INC. AND JACQUES CARON

Standardbred licensees Kevin Skilton, Les Ecuries Giroux Inc., and Jacques Caron (“Appellants”) appealed Rulings SB 38945 (“Skilton”), SB 38944 (“Ecuries Giroux Inc.”) and SB 38946 (“Caron”) wherein the Judges ruled that a fine of $1,200.00 to each Appellant was appropriate for allowing the horse MATCH BAYAMA to race in the Cup and Saucer at Charlottetown Driving Park on August 9 & 17, 2008, within 60 days of claiming, contrary to Rule 15.09(a) of the Rules of Standardbred Racing.

On December 8, 2008, a Panel of the Ontario Racing Commission consisting of Vice-Chair James Donnelly, Commissioner David Gorman and Commissioner Pam Frostad convened to hear the appeal.

Maureen Harquail appeared as Counsel for the Administration. Philip Newfeld appeared on behalf of the Appellants.

Upon hearing the evidence of Mr. Miller and Mr. Giroux and upon reviewing the exhibits filed and upon hearing the submissions of Counsel for the Administration and the representative of the Appellants, the Panel dismisses the appeals and orders:

I. That the fines are confirmed;

II. The stay order issued by the Director will terminate upon issuance of this order.

The Reasons for Decision are attached to this Ruling.

DATED this 23rd day of December 2008.

BY ORDER OF THE COMMISSION

Rob McKinney Executive Director (Acting)

REASONS FOR DECISION

1Standardbred licensees Les Ecuries Giroux Inc., Kevin Skilton and Jacques Caron appeal from Rulings SB 38944 (Giroux), SB 38945 (Skilton) and SB 38946 (Caron) dated August 31st, 2008 with respect to violation of Rule 15.09 (a).

2The rule provides “A claimed horse, regardless of ownership, shall race only at a track or tracks in Ontario for the next 60 days “ - subject to certain exceptions. It further provides any person who violates this rule shall be subject to a fine or suspension and the horse may be suspended.

3The undisputed facts underlying the alleged violation are:

• The Appellants claimed the horse MATCH BAYAMA at Georgian Downs on June 24, 2008 for $18,000.
• MATCH BAYAMA raced in the Elimination and Final of the Gold Cup and Saucer at Charlottetown Driving Park on August 9th and August 17th, 2008.
• MATCH BAYAMA was still owned by the Appellants on August 9th and August 17th, 2008.

4On August 31st, 2008, following due notice to the Appellants, the Judges at Rideau Carleton conducted a Hearing and found a breach of the Rule 15.09 (a).

5The Ruling identified assessment of the penalty as “10% of claiming price $18,000 x 2 starts x 1/3 ownership.” The total of $3,600 was apportioned $1,200 to each Appellant.

6The Appellants immediately indicated an intention to appeal and did so. Upon their application, on September 15, 2008, the Executive Director stayed payment of the fines pending hearing of the appeal.

7The Notice of Appeal, dated September 4, 2008, identifies grounds of appeal as follows:

Relating to liability

• It is claimed that the rule prohibits racing out of the province in an overnight event but has no application to a Stakes race (such as the Gold Cup and Saucer).
• The Race Secretary is responsible for identifying ineligibility issues.
• The rule fails to provide a specific mechanism for assessing the appropriate fine.
• The rule does not deal with Stakes events “where the nominations had not yet even opened” (such as the Gold Cup and Saucer).

Relating to the amount of the fine

• Only after the first of the two races in issue did the Appellants become aware of a potential Rules problem.
• In assessing the financial implications involved in entering the Stakes series, the Appellants were unaware of this potential cost.

8That MATCH BAYAMA raced in violation of the Rule is established by evidence as follows:

• Both Charlottetown races were within the 60-day period.
• The races were out of Ontario.
• The exceptions identified in the Rule had no application. MATCH BAYAMA had not been nominated to participate in an added money event before it was claimed. Georgian Downs was not closed for more than 30 days (common ground between the parties).

9Grounds of appeal are subject to disposition as follows:

• A reading of the Rule disposes of the fallacy that it is restricted to overnight events.
• As appears from the final paragraph of the Notice of Appeal, and as was supported by the evidence, entry in the two races in issue was a business decision made by the Appellants. The responsibility for compliance with the rule is upon the owner of the horse. That responsibility is reinforced by the obligation cast upon the owner’s trainer by Rule 26.14. “The trainer of record of a horse declared is responsible for the eligibility of the horse.”
• A Race Secretary has no authority to confer eligibility where eligibility does not exist.

10The purpose underlying the Rule is to protect against the plundering of Ontario claiming ranks by out-of-province owners. That purpose remains valid.

11On the appeal, the Appellants were represented by Philip Newfeld. Mr. Skilton attended throughout. Mr. Caron chose not to attend. Mr. Giroux although not present, testified by telephone conference call while availing himself of the services of an interpreter. Maureen Harquail represented the Administration.

12Senior Judge Thomas Miller was the only witness for the Administration. His testimony was supplemented by a document book filed on consent as Exhibit 1. Judge Miller explained that the policy underlying assessment of the amount of fines for Rule 15.09(a) violations was revised in December 2002 as a result of the LONDON MEWS M. incident.

The LONDON MEWS M. incident

13Within 60 days of being claimed for $75,000 at Woodbine on July 13, 2002, LONDON MEWS M. raced in a Gold Cup Elimination and Final at Charlottetown on August 11 and 17. By finishing 3rd in the Elimination, the owners won $900. By finishing 1st in the Final, they won $25,000. The policy then in place for breach of Rule 15.09(a) provided for a fine of 10% of the claiming price for each race in violation. The owners were fined $7,500, the two races being treated as one because they were in a single event, the Gold Cup. The owner’s balance sheet following breach of the Rule was, Credit, $25,9000, Debit, $7,500 for a credit balance of $18,400.

14On the basis that Rule violation should not generate a profit, the disincentive aspect of the Rule was revised within four months.

15That revised policy in place from December 2002 forward has been that the fine for each race in violation will be the greater of 10% of the claiming price or the purse money won by the horse in that race.

16The revised policy was promulgated by paddock meetings duly posted in race offices and noted on condition sheets.

The MATCH BAYAMA incident

17This alleged violation by racing in the Gold Cup Elimination was detected by a Standardbred Canada tracking system, and was referred to the Ontario Racing Commission (ORC).

18Senior Judge Miller contacted Mr. Giroux on August 11 and advised that MATCH BAYAMA was ineligible to race out of Ontario until after August 23. He further advised that because the horse raced August 9 in the Elimination earning $3,125 for a 3rd place finish, there was potential liability for a $3,125 fine. Because of language difficulty (French being Mr. Giroux’s first language), Judge Miller also conveyed the same information to Mr. Giroux’s wife who was fluent in English.

19On August 12, Judge Miller repeated the information to Mr. Giroux, Kevin Skilton and PEI Director of Racing, Paul Hogan. He explained that if the horse raced in the Final the owners could be fined the greater of 10% of the claiming price or the purse money.

20At this stage, the horse had qualified for the Final. The nomination fee had been paid some time prior. The draw for the Final was to be made at 10:00 a.m. local time on August 12. It was still possible to withdraw the horse by Judges’ scratch. Because of the ineligibility, there was little or no prospect of any punitive action by PEI racing authorities. The Final could still go with a full eight-horse field by promoting a replacement from the Consolation field.

21The Appellants elected to race the horse in contravention of the Rule. The horse finished 7th winning no purse.

22The ORC referred the matter to the Judges in Ottawa because trainer/owner Giroux primarily raced there and because one of the three judges on duty in Ottawa was bilingual. Appellants Giroux and Caron attended the hearing on August 31. Mr. Skilton who lives in the Barrie area did not.

23No issue was taken about breach of the Rule. The contest related to the amount of the fine. The Appellants, citing substantial expense in travelling to PEI, contended that 10% of the claiming price for a single race or $1,800 in total would be a proper disposition. Strict application of the policy would result in a fine of $3,125 for the August 9th violation and $1,800 for the August 17th violation for a total of $4,925.

24Prior to entering and racing the horse, the Appellants had contacted an ORC judge presiding at Mohawk who had no connection with the MATCH BAYAMA case. He cited the LONDON MEWS M. precedent of 10% of the claiming price or $7,500 for a single event involving two races. Apparently he did inform the Appellants about the policy change precipitated by the LONDON MEWS M. occurrence.

25The misinformation provided by the Mohawk judge was recognized by the judges as a valid mitigating factor bearing only on the Elimination race. Prior to the draw for the Final, the appellants had the current information from Judge Miller.

26Based on that misleading information and the expenses incurred, the Judges exercised their discretion and reduced the fine for the August 9th violation from $3,125 to $1,800. They imposed a fine of $1,800 for the August 17th violation. This appeal relates to that $3,600 total.

Aggravating Factors

27Racing MATCH BAYAMA in the Gold Cup and Saucer Final was an informed premeditated wilful violation of the Rules of Racing. Licensees are obliged to abide by the rules or accept the consequences. Whether the motivation was fame, fortune or simply wanting to see the old horse race after a long trailer ride matters little. The essential characteristic is that the motivation was self-serving.

28Racing MATCH BAYAMA in the Final with knowledge of and in open defiance of Rule 15.09(a) exacerbates culpability. The dual components of that exacerbation are:

• The breach was self-serving thereby heightening the need for specific deterrence.
• The breach inflicted harm on some other owner who was deprived of his entitlement to participate in the Gold Cup Final and to compete for the purse.

Mitigating Factors

29Ignorance of the Rule is no excuse for its violation (Rule 1.04) but can be a powerful mitigating factor. A violation committed through ignorance of the breach lacks a guilty mind component and so is less culpable and less deserving of penalty.

30As was determined by the Rideau Carleton Judges, the misleading information had a mitigating capacity. However, it also carried an aggravating component. The enquiry relating to penalty bespeaks a measured risk/reward analysis enabling a calculated deliberate decision to breach.

31Rule 15.09(b) provides no specific penalty in terms of either maximum or minimum:

32That the amount of the fine is not dictated by the rule is in accord with the general tenor of the Rules of Racing. Fines should be consistent in the sense of similar penalties for similar wrongdoers and wrongdoing. Thereby the penalty range is fair and moderately predictable. Nonetheless it is important to preserve the judges’ discretion to compensate for special circumstances. This is the rationale underlying omission of a specific penalty in Rule 15,09(a). That rationale is seen to be valid by its application in the MATCH BAYAMA case. There existed powerful and compelling justification for reducing the fine for the Elimination Race.

33There can be no “innocent intent” reduction in the penalty for the premeditated breach by racing in the Gold Cup Final. The breach was so blatant that the Judges may well have considered the propriety of increasing the fine beyond that called for by the policy.

34There is no flagging or early warning system triggered by entry of the horse to race during the sixty-day period. The current mechanism is triggered by the racing of the horse. This system is provided by Standardbred Canada. There is no obligation on Standardbred Canada to institute such service. The absence of such a safeguard may be a disadvantage to licensees but not a defence. The significant point is that no system absolves the licensee from obligation to abide by the Rules.

35Rule 15.09(a) creates an exemption for a horse nominated to participate in an added money event before it was claimed. It is argued that the Rule is deficient because it makes no provision for added money events that do not open before the claim. This contention misses the point entirely. The intent underlying the exemption is to preserve any pre-paid or pre-entered status that the horse may have enjoyed at the time of the claim (such as OSS eligibility where future nominations are made as yearlings or two-year-olds).

36The Gold Cup and Saucer is a single event. Depending on the number of horses declared it may be run as a single race or as an Elimination, followed by the Final, that is, two races a week apart. Entries and a draw precede each race. There is opportunity to withdraw between the races. There is a separate contest for each of two purses. For guidance of judges confronted with similar problems, the correct view is that two separate races are run and penalties accrue from each race as a separate violation. If it were a case of two heats on the same day, different considerations may apply. Before leaving this issue, it is noted that there is a handwritten note on Exhibit 1, Tab 21, dealing with LONDON MEWS M.:

“Tom Miller, I believe Terry spoke to the Woodbine judge and suggested that the two starts in the Maritimes would be counted as one start.” Whatever its status then, this approach is wrong now for races separated in time by a week or several days.

37The promulgation of the December 2002 policy change was apparently confined to paddock meetings and posting on condition sheets, and so was less than fulsome. However, it seems to have been accomplished in accordance with industry practice at that time. More importantly, Mr. Giroux had notice of the meetings and failed to attend or so far as the evidence goes, failed to enquire, thereby any complaint on his behalf about inadequate promulgation has no force.

38Comment was made about the language barrier, two of the three owners being francophone. Mr. Skilton’s first language is English. No French version of the Rules of Racing is available. This could come as no surprise to Mr. Giroux as so it has been during his 20-year racing career.

39The Ontario Racing Commission operates under a Memorandum of Understanding with the Ministry of Government Services. Under that Memorandum, the Ministry obtained exemption from Management Board of Cabinet pursuant to the French Language Services Act, Sections 2 and 5 relating to Government Agency publications of a scientific, technical, reference, research or scholarly nature. The Rules of Standardbred Racing shelter under that exemption. Accordingly, no French language edition is required by law.

40The precedents cited are of limited value.

The LONDON MEWS M. case and the KILMARTIN BO case have no precedential value in that they preceded the December 2002 policy.

TREASURE IMAGE

By SB Ruling 35862 dated July 8, 2006, the judges imposed a $1,200 fine. The claim was made April 29, 2006 at Georgian Downs. The race in violation of Rule 15.09(a) was June 23, 2006 in New York State. The ORC panel delivered brief reasons. The claiming price is not identified. In its present evidentiary form, the TREASURE IMAGE case provides meagre precedential assistance. Its principal utility may be to suggest that perhaps there has been only one violation since 2002.

41In passing it is noted that the current policy is stern but apparently effective. The infrequency of violations may fairly bear the inference that the penalty policy underlying Rule 15.09(a) is widely although not universally known. As such, by placing violators in a position to lose purse, travel and other racing expenses plus nomination fees where applicable, the policy provides a formidable disincentive for breach of the rule. What reason to tweak or tamper?

42In his closing submission, Mr. Newfeld contended for a penalty of 5 to 10 percent of the claiming price based on one race – that is - $900 or $1,800 in total. This is not an exercise in placating by determining the least offensive middle ground. The challenge is to identify and properly assess the weight to be attributed to all relevant factors whether mitigating or aggravating.

43In our view, the judges were correct in:

a) Starting their deliberations with consideration of the application of the policy in effect since December 2002.

b) Exercising discretion to vary that policy by recognizing legitimate mitigation relating to the Elimination race.

c) Fully discounting that mitigation by reducing the first fine from $3,125 to $1,800. A forty-two percent reduction in the fine indicated by the policy attributes full value to the mitigation component.

d) Regarding the Final, the wilful premeditated breach precludes abatement of the fine dictated by the current policy.

44The appeal fails. The fines are confirmed. The stay order will terminate upon issuance of this order.