Michael Wassilyn v. Ontario Racing Commission, 2009 CanLII 91196

Ontario Racing Commission

TB

RULING NUMBER COM SB 001/2009

COMMISSION HEARING TORONTO, ONTARIO – JANUARY 21, 2009

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

AND IN THE MATTER OF THE APPEAL OF

STANDARDBRED LICENSEE MICHAEL WASSILYN

Michael Wassilyn ("Wassilyn"), Driver/Trainer/Owner, Licence No. E12780, appealed against the penalties imposed in Standardbred Ruling SB 37859, on April 8, 2008, at Kawartha Downs Raceway, as a consequence of his driving actions in Race number 9 when driving the horse CR KING TRITON.

Wassilyn filed a request for a Stay. By Ruling SB 80/2008, Wassilyn was granted a stay by the Director.

On January 21, 2009, a Panel of the Ontario Racing Commission consisting of Vice-Chair James Donnelly, Commissioner David Gorman and Commissioner Pam Frostad, was convened to hear this matter.

Maureen Harquail appeared as Counsel for the Administration. Wassilyn was self-represented.

Upon hearing the evidence of Jeff Minler, Al Caughey, Steve Skene, Kevin Austin and Wassilyn and upon reviewing the videotape and upon reviewing the exhibits filed and upon hearing the submissions of Counsel for the Administration and Wassilyn, the Panel dismisses the appeal subject to the driving suspension being reduced from 60 days to 30 days to commence on April 8, 2009, up to and including May 7, 2009.

The Reasons for Decision are attached to this Ruling.

DATED this 29th day of January 2009.

BY ORDER OF THE COMMISSION

Rob McKinney Executive Director (Acting)

REASONS FOR DECISION

1Michael Wassilyn (Wassilyn), licensed owner/trainer/driver, appeals by trail de novo against the decision and penalties imposed by SB Ruling 37859, dated April 29, 2008.

2In consequence of his actions in driving the horse CR KING TRITON in race 9 at Kawartha Downs on April 8, 2008, the Judges found a violation of Rule 22.05.01 (a), (d) and (j) and:

• Imposed a sixty-day driving suspension (May 3, 2008 to July 2 inclusive),
• Placed CR KING TRITON (which had finished second) sixth in accordance with Rule 22.09.

3Upon Wassilyn's application, the Acting Executive Director granted a Stay on May 1, 2008 pending determination of the appeal (Ruling SB 80/2008, dated May 5, 2008, Rule 24.06).

4Notice of Hearing returnable December 9, 2008, was personally served on Wassilyn on September 30, 2008.

5On December 9, 2008, Wassilyn did not attend but sought adjournment through Counsel Howard Cohen on grounds that:

• Wassilyn was out of the country,
• Disclosure was not made by the Administration at least five days prior to the Hearing (Rules of Procedure 4.7 and 4.8).

6Mr. Cohen explained that his retainer was solely for the purpose of speaking to the adjournment. He was not retained to act for Wassilyn in the event that the Hearing proceeded in Wassilyn's absence.

7Mr. Cohen indicated that any date after mid-January would be satisfactory for Wassilyn. No evidence was adduced to confirm or explain Wassilyn's presence elsewhere or his departure or anticipated return dates. Lacking that evidence, the Panel ruled that no basis for adjournment on emergency or compassionate grounds had been made out.

8The evidence relative to Disclosure was:

May 30 – Disclosure packages were forwarded to Wassilyn and solicitor. Larry Todd as Counsel for Wassilyn. That disclosure was complete and included all material to be filed on the Hearing together with videotapes of the 9th race (and 10th as requested by Wassilyn) at Kawartha Downs on April 8, 2008.

June 4 – Audiotapes of the Judges' Hearing on April 29 were forwarded to Wassilyn and Mr. Todd.

August 25 – Videotapes of the 9th and 10th race at Kawartha Downs were sent to Wassilyn as he further requested.

September 4 – Pursuant to request, the Disclosure package including race tapes was forwarded to solicitor Howard Cohen who was then said to be acting for Wassilyn.

September 9 – An audiotape of the Judges' Hearing on April 29 was forwarded to Mr. Cohen.

September 22 – Notice of the hearing returnable December 9th was forwarded to Mr. Cohen.

September 30 – Wassilyn was personally served with Notice of Hearing returnable December 9th.

November 27 – Mr. Cohen advised the Administration that he was no longer retained by Wassilyn. He indicated that he was prepared to communicate with Wassilyn regarding possible resolution. No resolution was achieved.

December 3 – The Administration Factum and Book of Documents (which was simply a re-statement of the Disclosure) were sent by Express post to Wassilyn as his Queen's Quay address. Delivery was made on the morning of December 4th.

December 5 – The Administration Factum and Book of Documents were sent to Wassilyn at the Queen's Quay address by Envoy Express Courier service. Delivery was acknowledged on that date by signature of J. Solares at 2:15 p.m.

December 5 – The Factum and Book of Documents were provided to Wassilyn by fax transmission.

9Upon those representations by Counsel for the Administration relating to Disclosure, the Panel ruled that complete and timely disclosure had been made. No adjournment was warranted by any alleged disclosure deficiency.

10Rather than proceed in Wassilyn's absence, the Hearing was adjourned to a date in January to be fixed and upon the following terms:

• Disclosure was complete and need not be duplicated.
• The January date would be pre-emptory on Wassilyn. The Hearing would proceed on that date. Whether he was in attendance or not, he would be bound by that result.
• The Stay order would terminate on that date if for some foreseeable reason the Hearing did not proceed.

11Pursuant to that adjournment, the Hearing was set for 9:00 a.m., Wednesday, January 21, 2009. Wassilyn was duly served with notice of the hearing.

12On January 21, 2009, Wassilyn appeared and advised that he was self-represented by choice and ready to proceed. His preliminary objection was noted to the effect that he had not received (although requested), audiotapes of phone conversations from the paddock phone to the three judges by himself, driver Kevin Austin and starter, Steve Skene. The Administration position was that by misadventure or malfunction of a voice activated tape recorder, those conversations were not recorded.

13Throughout the Hearing, Wassilyn conducted his own case with courtesy and competence. That he was well prepared was obvious. His examinations and submissions were relevant and goal-directed.

14Ms. Maureen Harquail appeared as Counsel for the Administration.

Position of the parties

15The Administration position is capsulized in its Factum:

• A violation of Rule 22.05.01 (a), (d) and (j) occurred.
• The appropriate penalty is a driving suspension of 30 days rather than the 60 days imposed by the Judges.
• The horse CR KING TRITON should remain placed from 2nd to 6th place as per the Judges' ruling.

16The basis underlying the Administration's contention for a reduction in the driving suspension from 60 to 30 days is that the Judges misread Wassilyn's driving record, concluding that he had two interference violations with the horse MAPLE LADY within the last five years, each carrying a 30-day suspension.

17Prior to the Hearing, it was determined that this was a duplication, two references to a single driving incident and single violation. In light of that error, the Administration sought a variation of the suspension to 30 days.

18Wassilyn's position was that no rule violation occurred. Hence neither penalty nor placing is applicable. In fallback position, he contends for a penalty reduction.

The Claimed Driving Violation

19The flow of the race developed so that Austin, on the rail, was competing for the lead with his horse SNOOPS BYTES L against Wassilyn who was "parked out" with CR KING TRITON. The remaining seven horses followed.

20The driving violation alleged is that from the 3/8 pole to past the 3/4 pole, Wassilyn had a "wheel under" Austin's horse. This allegation was supported:

• By testimony from Austin that Wassilyn was in that position and remained there. With Wassilyn's race bike wheel ahead of and inside his, Austin was impeded. He could not get by that wheel. He was forced to check his horse and maintain position. About the 3/4 pole, Austin pulled a wheel inside the pylons (and so off the racing surface) to avoid contact with Wassilyn's wheel. Accordingly, he had no opportunity to race through the entire mile He could not rate his horse.
• By testimony from starter, Steve Skene, who acted as patrol judge (Rule 5.05 (d)) during the race, as the starting car (driven by someone else) followed the horses around the track. From the outer limit of the racing surface – Skene radioed twice to the Judges to report the "wheel under" situation, its danger and duration.
• By Acting Senior Judge Jeff Minler and Judge Al Caughey, each of whom observed the "wheel under" which was in close proximity to the right rear leg of Austin's horse. Each confirmed the sustained duration from about the 3/8 pole to about the 3/4 pole.
• The two videotapes of the race, a "pan" shot from the grandstand, a "head" shot from a patrol tower.

21At the time, Judge Minler made a notation on his program page "#5 (Wassilyn) had a wheel under" # 2 (Austin) from 3/8 pole to 3/4 pole.

22Austin lodged a complaint. The Judges interviewed Wassilyn, Austin and Skene. The Judges made an interference ruling and set CR KING TRITON back from 2nd to 6th as required by Rule 22.09. SNOOPS BYTES L having finished 5th. Following the Judges' Hearing on April 29, Wassilyn's driving licence was suspended for 60 days. The Judges ordered that two interference notations should be added to SNOOPS BYTES L'S race line, both resulting from the "wheel under" – one for being impeded, one for being forced inside the pylons.

23Wassilyn's testimony and submissions were that he drove a horse requiring particular care, a trotter with a history of going off stride. In consequence, he drove carefully and skilfully, avoiding any break or accident. The horse finished second. At times the horse was "on the right line" and care had to be taken so that it did not "bear in". Wassilyn's claim is that any error or deficiency was that of the horse not the driver. He pointed out that it was open to Austin to move closer to or inside the pylons if he was crowded or in danger. Wassilyn called evidence by another race starter, Ken Sastaunik, who watched the race tape and offered the opinion that patrol judge Skene would not be in a favourable position to make observation from the moving starting gate. That evidence was of miniscule persuasive force.

24A multitude of points of interest arose in the course of what had the preliminary appearance of being a relatively simple issue. Not the least of which was this:

• Austin testified that he did not recall any conversation between himself and Wassilyn during the driving incident.
• The videotape displays directional postures of the drivers' heads that could be consistent with conversation.
• Wassilyn proceeded to cross-examine Austin on his racing record about such as switching urine samples, suspensions, drug violations and the number of violations.
• Austin took exception claiming that the Hearing related to Wassilyn's driving venture rather than Austin's misadventures. (The cross-examination on the record was technically proper as bearing on credibility – and it did provide a response having profound impact on Austin's credibility under oath.)

25In mid cross-examination, Austin volunteered that he wished to make a disclosure. Since he had neither representation nor advice, precaution was required. The Panel recessed to permit Counsel for the Administration and Wassilyn to review the appropriateness and relevance of the intended utterance.

26The outcome was that Austin retracted his denial of any conversation during the incident, and alleged a threat "to put you down".

27That retraction gravely reflected upon the value of Austin's testimony under oath. It also detracted from the probative force of the allegation of such a threat being made. Aspects of Austin's evidence bearing on the racing incident are accepted in as much as they are corroborated by the videotape.

28It is unnecessary to accept Austin's evidence of a threat in order to find this was a vindictive act. The circumstances render that as obvious - proof by circumstantial evidence. Even fully discounting Austin's evidence, there is a massive preponderance of evidence supporting the Administration's position.

29Austin's failure to disclose this allegation until relentlessly provoked, may not be a conundrum for those who advocate for the existence of some form of "give and take" or "code of silence" ("leave it on the racetrack").

30The cumulative force of the evidence of starter Skene, Judges Minler and Caughey and the videotapes taken in conjunction with what probative force remains for Austin's evidence constitutes conclusive proof. Against that preponderance, Wassilyn's denial of wrongdoing is overwhelmed. The extended duration of the incident rules out happenstance or horse error.

31The Panel finds as fact:

• Wassilyn was "parked out" for about a half mile and having regard to the turns had to go a "longer" mile.
• That Wassilyn was a legitimate contender in the race is established by the horse enduring the long mile and finishing second.
• Wassilyn did have a "wheel under" for the claimed interval from about the 3/8 pole to about the 3/4 pole.
• That improper driving was deliberate being directed against the driver who "parked" him. The Judge's note made at the time records Wassilyn as saying, "Me and Kevin Austin were talking back and forth during the race about the fact he was parking me".

Rule Breaches

32Given those findings of fact, the Judges' findings of breach of the three rules must be sustained:

Rule 22.05.01 (a)

Wassilyn did bear in on Austin causing him to change course by driving his left wheel off the racetrack and inside the pylons.

Rule 22.05.01 (d)

Wassilyn did crowd another horse (Austin's) by "putting a wheel under it".

Rule 22.05.01 (j)

That sustained conduct did constitute "driving in a careless manner or reckless manner".

33The Appeal against those breaches is dismissed.

Placing CR KING TRITON

34The Judges were correct in exercising their discretion under Rule 22.09 to place CR KING TRITON sixth. Austin's horse finished fifth. The horse to be placed must be placed behind the horse it interfered with. That placing aspect of the appeal is dismissed.

Penalty

35The principles underlying imposition of penalty were reviewed in the Scott case, COM SB 021/2007, page 17 and following. It is sufficient to reference them rather than repeat them.

36Wassilyn contends for a penalty of "time served". No time has been served. The suspension was to commence May 3rd. The Stay was granted May 1st.

37In fallback, he contends for a 3 – 5-day suspension and filed pages of Standardbred Canada records in support. The difficulty is that not one of them discloses the facts underlying the breach.

38More is involved than this approach by syllogism. Interference gets 3 days. This is interference. This gets 3 days.

39The penalty must fit the crime. For example, careless driving might be the slightest inattention while at the backend of the racing pack thereby putting no one at risk. Careless driving might involve some wilful sustained foolhardy conduct at the front of the racing pack. Both are careless driving. Do they warrant the same penalty? Assault could be committed by striking someone with a feather pillow or a ball pean hammer. Both are assault. Do they warrant the same penalty?

40The fact that there was no accident does not render the wrongful conduct less culpable. That there was no accident may be attributable to good luck not good management. As the degree of culpability escalates, so must the penalty.

41The danger inherent in Wassilyn's manoeuvre is patently obvious and was stressed by the judges and starter Skene. The horses are travelling in the 30 mph range. The two lead horses are followed in close proximity by seven more. The scene is dynamic with constant potential for individual movement. If one of the leading horses takes a misstep, the potential risk is serious and universal for participants, equine and human.

42This sustained misconduct bespeaks an appalling lack of judgement and a reckless disregard for the lives and safety of others. Specific deterrence of a high order is imperative. There is an urgent need to eliminate such irresponsible conduct from the dangerous and competitive setting of horse racing. As such, there must be a formidable element of general deterrence.

43The standard of care required is governed by the circumstances. The greater the peril, the higher the standard.

44Regarding the quantum of the penalty, the burden is upon the Administration:

• Prove your case
• Prove your penalty

45The former, by nature, attracts more preparation and attention. However, the latter can be equally important. It has been said, "If the conviction is the gun, the penalty is the bullet."

46Helpful it is if reliance is upon precedents. Such precedents are more compelling if they ago beyond violation and penalty and extend to the underlying facts. Some fact situations may be much more the rare article than others. Perhaps this is one of them.

47In result, the appropriateness of the recommended 30-day driving suspension has been amply demonstrated. That penalty is hereby imposed. The driving suspension is reduced from 60 days to 30 days.

48It remains to:

• Fix the starting date for the driving suspension,
• Consider the issue of a frivolous appeal,
• Consider costs thrown away by Wassilyn's failure to appear on December 9.

Suspension Dates

49Extension of courtesy and consideration to licensees is a component of the adjudicative function. Accommodation is made for licensees' legitimate concerns relating to such as Disclosure, Pre-Hearing conference dates, adjournments and convenient Hearing dates. This service is not be exploited by "stay and delay" tactics. Such abuse can render the suspension element of a penalty essentially meaningless.

50This offence occurred April 8, 2008, at the beginning of the spring racing season. With a Hearing finally proceeding on January 21, 2009, it might reasonably be anticipated that a 30-day suspension would run from January 21. This could be viewed by many as an "off season" suspension.

51In order to achieve the result intended by the Judges and to prevent perception that a massaging of procedures resulted in unwarranted benefit, the driving suspension will commence April 8, 2009, the anniversary of the infraction.

Frivolous Appeal

52If the appeal is found to be frivolous, the appellant may be subject to censure by imposition of a penalty under SB Rule 24.08 and under the Authority of Section 11 (8) RCA 2000.

53Absent the penalty issue, the evidence disclosed a total absence of merit in the appeal. This raises the question of whether the Appeal is frivolous.

54The hallmark of a frivolous Appeal is that it be instituted absent reasonable grounds and that it be incapable of success. But for the Administration's recommendation of a reduction of the driving suspension to 30 days, this appeal could be branded as frivolous.

The Conduct of the Appeal

55Even though the Appeal itself cannot be said to be frivolous, aspects thereof may be frivolous or otherwise deserving of denunciation. This is the situation contemplated by SB Rule 24.11 which is not premised upon a finding that the appeal is frivolous but still provides for a penalty "in addition to any other penalty for which the person may be liable."

56Wassilyn demonstrated a capacity to act swiftly and adeptly in his own interest:

• April 29 - The Judges imposed a driving suspension effective May 3.
• April 29 - Wassilyn delivered his Notice of Appeal.
• April 30 - Wassilyn applied in writing for an order staying his suspension.
• May 1 - The Stay was granted by the Acting Executive Director two days before the suspension took effect (formal order dated May 5).
• May 8 - Solicitor Larry Todd advised the Administration that he was in the process of being retained by Wassilyn.
• May 12 - Mr. Todd made a written request for Disclosure.

57In result, within 24 hours of imposition of the driving suspension, Wassilyn found refuge in the safe haven of the Acting Executive Director's Stay order. Thereupon, in pace and purpose, his activity altered dramatically. In studied but transparent manner, he practised the artful discipline of delay as follows.

Firstly

58There was persistent uncertainty as to his representation on the appeal:

• He was originally self-represented and filed the Notice of Appeal and the Stay application in that capacity.
• He was indicated to be represented by Counsel Larry Todd.
• Mr. Todd was not retained and Wassilyn was again self-represented.
• He was indicated to be represented by Howard Cohen.
• Mr. Cohen was not retained and Wassilyn was again self-represented.
• On the return date of December 9, 2008, he was represented by Howard Cohen on a retainer restricted to the Application for Adjournment.
• He was self-represented on the January 21 Hearing.

59These vacillations about his representation:

• Caused unnecessary and unreasonable delay.
• Precipitated repetitions of the Disclosure process.
• Compounded the difficulty in scheduling a Hearing date convenient for the parties.
• Were generally disruptive of the Commission's adjudicative process by impacting indirectly on the scheduling of other Hearings.
• Were consistent with an overt manipulation in order to control the timing of the Suspension.

Secondly

60Although personally served with Notice of Hearing seventy days in advance (September 30 – December 9), he conducted his affairs with the result that he failed to attend on December 9th.

Thirdly

61On the adjournment application, Mr. Cohen advised the Panel that Wassilyn would be available only after mid-January, thereby imposing further delay.

62Additional aspects of the conduct of the appeal require comment as follows:

• That Mr. Cohen's retainer was restricted to the adjournment application cannot be characterized as frivolous, however, it became a factor bearing on the decision whether to proceed in the absence of Wassilyn or his counsel. That conduct was typical of Wassilyn's threadbare response to the Administration's efforts to provide him with a Hearing.
• The grounds asserted on the adjournment application were spurious. The allegation of failure to make timely disclosure was absurd. Wassilyn's failure to appear was bereft of evidence by way of explanation much less justification.

Wassilyn's Failure to Appear

63The foremost feature of the unsatisfactory conduct of the appeal is Wassilyn's non-attendance on the December 9th return date. The compounding factors were:

• Wassilyn had long-standing advance notice of the hearing date.
• He had notice that the witnesses were served with the same Notice of Hearing because their names appeared on the document (Judge Jeff Minler, driver Kevin Austin and starter Steve Skene).
• No prior notice was given that he would not attend.
• No good cause for his non-attendance was demonstrated, nor was there any attempt to do so. No evidence was tendered relating to departure date, return date, means of transportation, destination, reason for the trip, emergent circumstances, absence of foreknowledge or the like. The only explanation offered was that Wassilyn was out of the country. When asked "where"? Counsel speculated, "on the west coast, perhaps Vancouver." That response fell short of bolstering the reliability of Counsel's statement that Wassilyn was out of the country.

64As a direct result of Wassilyn's failure to appear without prior notice, the three witnesses made abortive attendances on December 9th, as did the Court Reporter, Counsel for the Administration and a Panel of three Commissioners. No other hearings were scheduled for December 9th.

65That squandering of Commission resources was irresponsible. That conduct is an affront to the racing industry which funds the Commission. There is little reason why that cost should be borne by anyone but Wassilyn.

66Financial peril incidental to the conspicuous discourtesy of failure to appear without cause or notice can come as no surprise to Wassilyn. His Notice of Appeal form carries this footnote. "Should an Appellant fail to appear at the hearing of his/her appeal without good cause, the Commission may impose a fine not to exceed the Commission's expenses incurred by the appeal."

67The Commission costs thrown away as a result of Wassilyn's non-attendance include:

• Witness fees and mileage for witnesses Minler, Skene and Austin
• Per diem fees for the Panel as well as travel and accommodation expense
• Attendance by Court Reporter

68As well as those specific expenses, there were non-specific expenses for preparation. These are noted but no attempt is made to quantify them.

69The Administration did not put Wassilyn on notice that it would seek to recover those costs thrown away and indeed did not seek that recovery. In result, fairness dictates that no costs order be made against Wassilyn. However, this exercise is not without benefit as these Reasons for Decision may serve as notice to the industry that such a peril exists.

70A similar costs liability may be incurred by an Appellant, who, without demonstrating good cause, abandons an Appeal on the eve of the Hearing date.

71Henceforth, in appropriate cases, an Order may proceed requiring payment of costs thrown away.

The Missing Audiotapes re Wassilyn, Austin and Skene

72The Panel accepts the innocent explanation of misadventure by malfunction. Still, two points merit comment:

• The nature and content of those missing conversations was fully explored during this Hearing. The conversations dealt with the issue of a "wheel under" for a sustained period and the inherent danger. No new element of the narrative was incorporated in any of those conversations. No prejudice for Wassilyn resulted from failure to record the conversations and produce the audiotapes by way of disclosure.
• The recording function is important from three perspectives. It safeguards fairness for the licensee. It protects the transparency of the ORC function. It demonstrates the competence of the ORC officials charged with that responsibility.
• The mechanical failure serves to focus on this risk. Simple safeguards may prevent recurrence. Ensure that the equipment is activated and operational. That mechanical malfunction is not for casual discard as simply a vicissitude of life. Rather it is a clarion call for vigilance to prevent recurrence.

73In result, the Appeal is dismissed subject to the driving suspension being reduced from 60 days to 30 days to run as aforesaid.

DATED this 28th day of January 2009.

James M. Donnelly Vice Chair

Rule 22.05.01

A driver shall not commit any of the following acts which are considered violations of driving rules:

(a) Change course or position, or swerve in or out, or bear in or out during any part of the race in such a manner as to compel a horse to shorten its stride or cause another driver to change course, take his or her horse back, or pull his or her horse out of its stride.

(d) Crowd another horse by 'putting a wheel under it'.

(j) Drive in a careless or reckless manner.

Rule 22.09

In the case of interference, collision, or violation of any rules, the offending horse may be placed back one or more positions in that heat or dash, and in the event of such collisions, interference or violation preventing any horse from finishing the heat or dash, the offending horse may be disqualified from receiving any winnings and the driver may be fined or suspended. If a horse is set back, it must be placed behind the horse with which it interfered. If an offending horse has interfered with a horse involved in a dead heat and the offending horse is set back, it must be placed behind the horses in the dead heat.

Rule 24.06

Pending disposition of an appeal, all penalties imposed shall continue in full force and effect except when stayed by order of the Director.

Rule 24.08

If after holding the hearing the Board of Appeal is of the opinion that the request for the hearing was frivolous, the Board may order a penalty against the person requesting the hearing in an amount prescribed by the Regulations in addition to any other penalty for which the person may be liable.

Rule 24.11

At the conclusion of an appeal to the Commission, the Commission may uphold, rescind, modify, or increase the penalty imposed by the Board of Appeal, the Judges or delegated official. In addition, if after holding the hearing, the Commission may order a penalty against the person requesting the hearing in an amount prescribed by the Regulations in addition to any other penalty for which the person may be liable.

Rule 6.15

Fines imposed in accordance with the rules are payable forthwith upon their imposition and before the participant races again, unless there has been an appeal filed. A licensee who fails to pay such fine may be suspended until the fine is paid, and such suspension will result in a penalty of not less than $25.00.

Racing Commission Act 2000

Section 11 (8)

If, after holding the hearing, the Commission is of the opinion that the request for the hearing was frivolous, the Commission may order the person requesting the hearing to pay to the Commission a penalty of not more than the amount prescribed by he regulations, in addition to any other penalty to which the person may be liable.

Rules of Procedure

Factums

4.7 (1) Each party shall serve and file a Factum not less than five days prior to the Hearing to include:

(a) Brief summary of the relevant facts:

(b) List of witnesses; and

(c) Rules, law and precedents to be relied upon.

(2) A Factum shall not be required from a party who is self-represented.

Book of Documents

4.8 (1) The parties shall submit a joint Book of Documents not less than five day prior to the Hearing to include all documents to be provided to the Hearing Panel in advance of the hearing.

(2) A Book of Documents shall not be required from a party who is self represented, however, the Administration will still prepare its Book of Documents, provide a copy to the appellant and seek his/her approval to provide copies to the Panel in advance of the hearing.

(3) The Book of Document should include:

(a) Notice of Appeal;

(b) Notice of Hearing;

(c) The decision under appeal;

(d) Evidentiary exhibits as agreed by all parties; and

(e) Such additional relevant material as the parties agree