RULING NUMBER COM TB 009/2008
COMMISSION HEARING TORONTO, ONTARIO – NOVEMBER 13, 2008
IN THE MATTER OF THE RACING COMMISSION ACT S.O. 2000, c.20;
AND IN THE MATTER IN THE APPEAL OF
THOROUGHBRED LICENSEE ROGER A. ELLERSICK
Thoroughbred Licensee Roger A. Ellersick (“Ellersick”), Licence Number 119119, as exercise person/owner/trainer, was required, pursuant to Rule 38.08(d) of the Rules of Thoroughbred Racing to appear before the Commission.
On Thursday, November 13, 2008, a Panel of the Ontario Racing Commission consisting of Chair Rod Seiling, was convened to hear the matter. Ellersick did not appear in person. Ellersick was unrepresented by a barrister or a paralegal, however, Candice Warwick, accounting practitioner, was in attendance as agent for Ellersick. Anthony Williams appeared as counsel for the Administration.
Pursuant to the provisions of 4.6 (1) of the Rules of Procedure for the Ontario Racing Commission, the hearing proceeded in the absence of Ellersick.
Upon hearing the uncontested allegations against Ellersick, and upon reading the exhibits filed and upon hearing submissions of both Candice Warwick and counsel for the Administration, the Commission found as follows:
- On Tuesday, October 7, 2008, at the Fort Erie Racetrack, Ontario, Ellersick was the trainer of record for the racehorse CREAM in the 10th race.
- Ellersick was required to submit to alcohol testing, upon Reasonable Cause, pursuant to Rule 38.07(a) of the Rules of Thoroughbred Racing.
- Ellersick failed to report directly for a test or submit to a test, in violation of Rule 38.07(g) of the Rules of Thoroughbred Racing.
- On Thursday, October 9, 2008, the licence of Ellersick was suspended and he was referred to the Commission pursuant to Rule 38.08(d) of the Rules of Thoroughbred Racing.
- On Wednesday, October 15, 2008, Ellersick provided proof of a negative result pursuant to Rule 38.08(g)(i) of the Rules of Thoroughbred Racing.
In view of all the circumstances surrounding this violation, including a suspension of 36 days, (a suspension which Ellersick has already served), the Commission orders as follows:
i. that the licence of Ellersick be reinstated immediately;
ii. that Ellersick be placed upon probation for a period of twelve (12) months upon the following conditions:
a. that Ellersick is subject to unannounced breath testing as a condition of his continued licensing;
b. that Ellersick must provide forthwith or as soon as is practicable, such suitable samples of his breath, as may be required for analysis, upon the request of a paddock judge or ORC investigator whenever Ellersick is engaged in the business of racing at a licensed racetrack in Ontario;
c. failure or refusal to comply with a condition of probation may result in an immediate suspension of licence and a referral to the Commission for the purpose of determining the future status of the licence of Ellersick, in addition to any penalties which may be imposed by the stewards.
The Panel’s Reasons for Decision is attached to this Ruling.
DATED in Toronto this 17th day of November 2008.
BY ORDER OF THE COMMISSION
John L. Blakney
Executive Director
REASONS FOR DECISION
The Ontario Racing Commission Rules of Procedure, specifically 4.6 (1), provides ample rationale for the hearing to proceed in the appellant’s absence notwithstanding Ms. Candice Warwick being present to represent him.
Ms. Warwick did not dispute any fact regarding Mr. Ellersick’s refusal to provide a breath sample at Fort Erie Racetrack on October 7, 2008 where he was listed as the trainer of the horse CREAM in the 10th Race.
Therefore, Roger Ellersick was in violation of TB Rule No. 38.07(a) and (d) on Tuesday, October 7, 2008 as he failed to report for a test as these rules require.
The Alcohol and Drug Rules (Human) have a specific purpose as they are directly related to the Commission’s mandate, protecting the health and welfare of the horse, protecting the safety of the participants and protecting the public interest.
Mr. Ellersick has complied with TB Rule 38.08(g) and has provided a negative sample as part of his reinstatement application.
After all is said and done, the evidence is such that Mr. Ellersick blatantly violated a rule that virtually every licensee is familiar with in terms of its reasons for its existence.
Such action cannot go without some form of penalty. To allow a licensee to simply produce a clean sample at his/her convenience would send a signal that this Commission will not enforce the “raison d’etre” of its own rules. Wilful transgressions must carry a penalty that serves as a deterrent to both the offender and to those who may consider similar action in the future.
Mr. Ellersick is already in receipt of a 36-day suspension due entirely to his own negligence. The time frame may or may not relate to what penalty he would have received as a first-time offender.
One of the mantras of this Commission remains rehabilitation. In light of Mr. Ellersick’s spotless record, the Commission accepts the recommended resolution as put forward by Mr. Williams and accepted by Ms. Warwick, who confirmed on Mr. Ellersick’s behalf, that he had been provided a copy of it and was prepared to accept.
The probation period for the settlement will be 12 months.
DATED this 17th day of November 2008.
Rod Seiling
Chair