RULING NUMBER COM TB 005/2008
COMMISSION HEARING TORONTO, ONTARIO – JULY 30, 2008
IN THE MATTER OF THE RACING COMMISSION ACT S.O. 2000, c.20;
AND IN THE MATTER IN THE APPEAL GARY PARKIN
Gary Parkin, by way of Notice of Motion, requested a stay of a Notice of Proposed Order to refuse him a new licence.
On July 30, 2008, a Panel of the Ontario Racing Commission consisting of Commissioner David Gorman convened to hear the Motion.
Maureen Harquail appeared as Counsel for the Administration and Daniel McMahon appeared as Counsel for Gary Parkin.
The question before the Panel was whether the Commission can interfere with the decision of the Director to issue a Notice of Proposed Order to refuse a licence.
Upon hearing the arguments and submissions presented by Counsel for the Administration and Counsel for Gary Parkin and upon reviewing the Factums provided by both parties and upon reviewing the Book of Documents provided by the Administration, the Panel found that the Commission does not have jurisdiction to interfere with the Director’s decision in this matter.
Written reasons are attached.
DATED in Toronto this 1^st^ day of August 2008.
BY ORDER OF THE COMMISSION
John L. Blakney
Executive Director
ORAL DECISION
In the matter of Gary Parkin, and in the matter of a Notice of Proposed Order to refuse the licence of Gary Parkin, the principal question before this Panel is whether the Commission can interfere with the decision of the Director to issue a Notice of Proposed Order to refuse a licence.
The Panel has read the Factums provided by Ms. Harquail on behalf of the Administration and by Mr. McMahon on behalf of the appellant, Mr. Parkin, has read the Administration’s Book of Documents and has heard the Arguments presented by Ms. Harquail for the Administration and Mr. McMahon for the appellant. After consideration of all of the above, it is the Panel’s view that the Commission cannot at this stage in the proceedings, interfere with the actions taken by the Director, or in this case by the Acting Director.
Mr. Parkin is entitled to a full hearing on the merits of his case after which he may, if circumstances warrant, appeal the decision of that Panel, but in the short term, the Panel’s view is that the Commission cannot interfere with the action taken by the Director. Written reasons will follow.
Thank you Mr. McMahon and Ms. Harquail for providing written materials in advance. It is most helpful and your Arguments here today have also been most helpful.
That concludes today’s hearing.
DATED this 1^st^ day of August 2008.
__________________________
David Gorman
Commissioner
REASONS FOR DECISION
Gary Parkin, formerly licensed as an owner/trainer in the thoroughbred business, had his licence expire on March 31, 2008.
Mr. Parkin applied for a new licence, this time as a hot walker on April 23, 2008.
On May 6, 2008, over the signature of Robert McKinney, Executive Director (Acting), Mr. Parkin was issued a Notice of Proposed Order to refuse the licence of Gary Parkin. That notice specified that “the Director has reasonable grounds to believe that, while carrying out activities for which a licence is required, will not act in accordance with the law, or with integrity, honesty or in the public interest having regard to his past conduct”, and Gary Parkin carried on activities that are “in contravention of the Act, the Rules of Thoroughbred racing and the terms of the licence.” A total of 11 particulars followed, and Mr. Parkin was further advised that he would be issued a Ruling prescribing a fine of $5,000 and prohibiting him from applying for any ORC licence for a period of 5 years.
This ruling was issued in respect of an incident allegedly involving Mr. Parkin in August 2007 at Fort Erie Racetrack. Mr. Parkin was licensed as an owner/trainer at the time.
Mr. Parkin, through his counsel, Daniel McMahon, on June 27, 2008, by way of Motion, requested a “stay” of the Notice of Proposed Order to refuse him a licence.
A hearing into the matter was held on July 30, 2008.
Counsel for the Administration, Maureen Harquail, argued that the Commission does not have the power to interfere with the decision of the Director at this stage of the matter.
The Racing Commission Act requires that an individual wishing to participate in racing be licensed by the ORC (Section 16 (2)).
Under Section 18 (1) of the Act, the Director is permitted to investigate the background of an applicant for a licence.
Section 19 of the Act deals with the issuance of a licence or renewal of a licence. It states, “the Director shall (emphasis added) refuse to issue a licence to an applicant or to renew the licence of an applicant if (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.”
It is clear to the Panel that the Administration followed the necessary steps in providing Mr. Parkin with the reasons why his application was refused.
Mr. McMahon queried whether the Notice of Proposed Order could be made by someone other than the Director. Ms. Harquail argued that it is appropriate for an Acting Director to carry out the duties of the Director, should the Director not be available. The Panel agrees.
Ms. Harquail argued that there is nothing within the Act giving the Commission the power to do what the Director did in this case or to reverse the decision at this stage. The Panel agrees.
Ms. Harquail indicated that there is no provision within the Act for the provision of a temporary licence, which would be a possible effect of the Commission interfering with the Director’s decision. In reality, even if the Panel granted a stay, Mr. Parkin would still be unlicensed. The Panel agrees.
Section 22 (6) of the Act reads:
“After holding a hearing, the Panel may by order ….”
It is the Panel’s view that this means holding a hearing on the merits of the case, at which point a panel might overturn the Director’s ruling.
Today’s date, July 30, 2008, was offered to Mr. McMahon for that hearing but Mr. McMahon indicated that he was not yet in a position to proceed.
The Panel agrees that only the Director (or one assigned to be “Acting”) has the power, in the first instance to issue a Notice of Proposed Order. Proper procedure must be followed, and in this case the Panel finds that it was.
The Panel agrees that a hearing on the merits of the case must take place before the Commission can interfere with the decision.
The Panel therefore agrees with the Administration that all proper steps have been taken with respect to the issuance of the Notice of Proposed Order to refuse a licence to Gary Parkin, and that the Commission has no jurisdiction in the matter until such time as a hearing has been held on the merits of the case.
Therefore, the Motion for a “stay” of the Notice of Proposed Order to refuse the licence of Gary Parkin is rejected.
DATED this 1^st^ day of August 2008.
___________________________
David Gorman
Commissioner