Ontario

Racing

Commission

TB

RULING NUMBER COM SB 001/2008

COMMISSION HEARING TORONTO, ONTARIO – JANUARY 3, 2008

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

AND IN THE MATTER OF THE APPEAL OF

STANDARDBRED LICENSEES

ROBERT ZUBKOFF AND KELLY LESTER

On December 14, 2007, Standardbred licensee Robert Zubkoff, Licence Number 3712T7, was fully suspended for one year (December 21, 2007 to December 20, 2008) and fined $2,500 for violation of Rules 1.09, 6.20 (a), (b) and (c) of the Rules of Standardbred Racing on August 4, 2007 and September 22, 2007 at Hiawatha Horse Park.

On December 17, 2007, a request by Robert Zubkoff for a stay of penalties pending an appeal was denied.

On December 14, 2007, Standardbred licensee, Kelly Lester, Licence Number W80058, was fully suspended for one year (December 21, 2007 to December 20, 2008) and fined $5,000 for violation of Rules 1.09, 6.20 (a), (b) and (c) of the Rules of Standardbred Racing on August 4, 2007 and September 22, 2007, at Hiawatha Horse Park.

On December 17, 2007, a request by Kelly Lester for a stay of penalties pending an appeal was denied.

On January 3, 2008, a Panel of the Ontario Racing Commission consisting of Commissioner David Gorman was convened to hear the matter.

Both Robert Zubkoff and Kelly Lester were represented by Gerald Sternberg as counsel. Anthony Williams appeared as counsel for the Administration.

On hearing the submissions of both counsel and following a reading of the materials filed, the Commission ordered as follows:

i. That the request for stays of penalties pending the hearing of the appeals be granted for Robert Zubkoff and Kelly Lester.

ii. That the hearing of the appeals be expedited.

The Commission’s oral reasons form part of the transcript which is attached hereto.

DATED this 11th day of January 2008.

BY ORDER OF THE COMMISSION

John L. Blakney

Executive Director

ONTARIO RACING COMMISSION

STANDARDBRED HEARING

IN THE MATTER OF STANDARDBRED LICENSEE ROBERT ZUBKOFF

AND IN THE MATTER OF STANDARDBRED LICENSEE KELLY LESTER

Held Before:

D. Gorman, Commissioner

These are an excerpt of the proceedings in the above mentioned matter held before The Ontario Racing Commission, Re: ROBERT ZUBKOFF and KELLY LESTER, taken before Toronto Court Reporters, Suite 1410, 65 Queen Street West, Toronto, Ontario, at 10 Carlson Court, Suite 400, Mississauga, Ontario, on the 3rd day of January, 2008.

Appearances:

Anthony Williams,

for the Ontario Racing Commission Administration

Gerald Sternberg,

for licensees Zubkoff and Lester

Hearing continued ...

MR. MCKINNEY: All rise. This hearing before the Ontario Racing Commission is back in session.

MR. CHAIRMAN: Thank you. Please be seated. I will read this into the record. I will try to read it slowly. Standardbred licensees Robert Zubkoff and Kelly Lester, through counsel Mr. Gerald Sternberg, on December 17th, 2007 requested a stay of ORC Ruling number SB 36551 and SB 35577 dated December the 14th, 2007 wherein each was suspended for one year and fined $2,500.00 and $5,000.00 respectively.

The Executive Director in a ruling dated December the 18th, 2007 denied their appeals for a stay. Through counsel Sternberg each appealed that decision with the matter to be heard on January the 3rd, 2008 at the Commission offices. Mr. Sternberg's Notice of Appeal with respect to the Judge's Hearing on December the 14th, 2007 contained four points, of which two are considered germane to this hearing today. He complains in point number 2 that full disclosure was not provided in a timely fashion which compromised the defence and in point number 3 the Judge William Martins should have disqualified himself from adjudicating these charges as he was apprised of the allegations from the outset and failed to disclose that fact.

Mr. Sternberg provided oral evidence to backup these complaints but it must be noted that no witnesses were called in support. The Administration was represented by Mr. Anthony Williams. After hearing Mr. Sternberg's submissions Mr. Williams said he was troubled by complaints numbers 2 and 3 as outlined by Mr. Sternberg and further said that there is a potential difficulty here with respect to fairness.

The panel agrees. It is the position of this Commission that due process must be granted to those who choose to appeal disciplinary measures. It is also the position of this Commission that the granting of stays does not mean that appellants should continually seek ways to delay hearings in order to continue operating as usual. The panel was referred to the Statutory Powers and Procedures Act and to the Criminal Code for guidance in issuing a ruling. Each is of some assistance but the ruling must be of a discretionary nature.

Both Mr. Williams and Mr. Sternberg indicated that they would have no problem with an expedited appeal. Therefore this panel hereby orders that a stay be granted as requested by Mr. Sternberg and that an appeal of the original rulings be expedited in fairness to all concerned, including those whose horses must compete against those of Mr. Zubkoff and Ms. Lester. The appeal will be a trial de novo. The panel is urging counsel to have the matter heard by the end of January 2008 and notes that January 7th and 8th may be available and I would request that you both see Ms. Darla Wright as soon as possible for date availability.

Finally, the panel agrees with both Mr. Williams and Mr. Sternberg that today's hearing does not constitute a frivolous appeal and so there is no issue of costs being assigned to the appellants as is possible under Section 11.8 of the Racing Commission Act. Thank you both for your assistance.

MR. WILLIAMS: Thank you very much, sir.

MR. STERNBERG: Thank you.

CERTIFIED CORRECT:____________________________

RAYMOND P. MACDONALD, B.A., CVR

Commissioner of Oaths