Ontario Racing Commission
TB
RULING NUMBER COM SB 011/2009
COMMISSION HEARING TORONTO, ONTARIO – MAY 21, 2009
IN THE MATTER OF THE RACING COMMISSION ACT S.O. 2000, c.20;
AND IN THE MATTER OF THE APPEAL AND REQUEST FOR HEARING OF GERALD MANNEKE
On March 10, 2009, a Notice of Proposed Order to Revoke the Licence of Gerald Manneke (“MANNEKE”) was issued.
On March 19, 2009, MANNEKE filed a Notice of Appeal with the Ontario Racing Commission (“ORC”).
On May 21, 2009, a Panel of the ORC, comprised of Vice Chair Hon. James M. Donnelly, was convened to hear the appeal.
Jennifer Friedman appeared as counsel for the Administration. MANNEKE failed to attend.
Upon hearing the submissions, the Panel dismissed the appeal as follows:
i) As abandoned without prejudice;
ii) MANNEKE be served personally with the Ruling;
iii) The right to resurrect the appeal will be confined to the 30 days following personal service;
iv) If no appeal is launched within that time, the Director’s Notice of Proposed Order is hereby confirmed.
The transcript is attached to this Ruling.
DATED at Toronto this 28th day of May, 2009
BY ORDER OF THE COMMISSION
Rob McKinney
Acting Executive Director
ONTARIO RACING COMMISSION
STANDARDBRED HEARING
IN THE MATTER OF THE APPEAL AND REQUEST FOR HEARING OF GERALD MANNEKE
AND IN THE MATTER OF STANDARDBRED LICENSEE GERALD MANNEKE
Held Before:
James Donnelly Vice Chair
These are the proceedings in the above mentioned matter held before The Ontario Racing Commission, Re: GERALD MANNEKE, taken before Toronto Court Reporters, Suite 1410, 65 Queen Street West, Toronto, Ontario, at 10 Carlson Court, Suite 400, Toronto, Ontario, on the 21st day of May, 2009.
Appearances:
Jennifer Friedman,
for the Ontario Racing Commission Administration
INDEX OF EXHIBITS
EXHIBIT # PAGE #
notification letter dated May 5th, 2009............................. 13
notification letter dated May 13th, 2009 with attachments. 14
Notice of Hearing.............................................................. 14
Administration book of documents................................... 14
Post Office report re Notice of Hearing........................... 14
Canada 411 reverse search............................................. 15
Hearing continued ...
MR. CHAIRMAN: All rise. Please be seated. Ms. Friedman?
MS. FRIEDMAN: Good morning, Mr. Chair. I will be acting as the counsel for the Administration in this matter. At this point the appellant is not yet in attendance. I have sent him correspondence or rather Ms. Wright sent him correspondence on May 5th indicating that the matter was scheduled for today at 8:00 a.m. As well, on May 13th I sent him a detailed letter specifying particulars pertaining to the factum and book of documents and asked for a response. I did not receive a response. The factum cover page contains particulars of this hearing, including a start time of 8:00 a.m. We have had no information to indicate that the appellant would not be attending on time today.
MR. CHAIRMAN: Has there been any communication from him today that he was late or delayed or anything of that sort?
MS. FRIEDMAN: No communication at all.
MR. CHAIRMAN: Do you wish to file those two documents to which you made reference?
MS. FRIEDMAN: Yes. For your information in - are you referring to the letters or the factum and book of documents?
MR. CHAIRMAN: You spoke of a May 5th and a May 13th communication.
MS. FRIEDMAN: Yes. With your indulgence I will have to make copies of those two letters.
MR. CHAIRMAN: Well, while you are doing that we will rise and if Mr. Manneke isn't here by 8:30 we will address them then.
MS. FRIEDMAN: Thank you.
SHORT RECESS
Upon Resuming...
MR. CHAIRMAN: All rise. Please be seated. Ms. Friedman?
MS. FRIEDMAN: In the last half an hour we have attempted to reach the appellant without success. In the meantime I can provide ‑‑
MR. CHAIRMAN: How was that done, his cell phone or home for or ...
MS. FRIEDMAN: Home phone. There is no voicemail.
MR. CHAIRMAN: No response?
MS. FRIEDMAN: No, no response. In the past when we have attempted to contact him there hasn't been a voicemail so I understand he doesn't have any sort of message system.
MR. CHAIRMAN: And he is not here?
MS. FRIEDMAN: He is not here. I have provided copies of those letters that we spoke about earlier, the May 5th and May 13th, along with Canada Post confirmation of the May 5th letter and Canada Post confirmation in front of you of the May 13th letter. Out of an abundance of caution though I do want to note that the actual Notice of Hearing indicated a start time of 9:00 not 8:00 but the two letters since then have said 8:00 and subject to your comments I'm prepared to proceed now or begin at 9:00 a.m.
MR. CHAIRMAN: We will wait until 9;00. What time is the Waxman hearing scheduled?
MS. FRIEDMAN: I'm not certain.
MR. CHAIRMAN: You're not sure. Well ,,,
MS. FRIEDMAN: I could speak to the other counsel.
MR. CHAIRMAN: We will reconvene at 9:00.
MS. FRIEDMAN: Thank you.
SHORT RECESS
Upon Resuming...
MR. CHAIRMAN: All rise please. Please be seated.
MS. FRIEDMAN: I have further details to advise you of. I have just followed up with Canada Post in regards to the Notice of Hearing, original Notice of Hearing and they communicated to us that the Notice of Hearing is still at the Post Office for pick up and with respect to the other letters I provided you confirmation of delivery. It is our understanding that those were actually successfully delivered and those make reference to an 8;00 start time today. However, when asked to get a definite answer as to whether he actually received those letters Canada Post said that they weren't allowed to disclose that information. So it is our understanding that he did in fact get those. The telephone number that we have for him, as I indicated, there has been no answer and there is no voicemail. We did a reverse search of that telephone number and it comes up in the name of Janice McEachern and with reference to his application he named Janice McEachern as his trainer and provides the same phone number for her as he does for himself and so we have neither been able to reach her nor the appellant.
MR. CHAIRMAN: And what do you say we should do today?
MS. FRIEDMAN: What the Administration would propose is this is the telephone number that is provided on the applications along with a matching home address. We have made best efforts to reach him by regular mail. We have no indication that those letters were not received. Mr. Manneke was the one who actually requested this hearing. He has made no follow up with us and it would be our understanding that he is aware of the hearing and his request for hearing is dated March 19th. He has made no contact with us since then.
MR. CHAIRMAN: It would seem to me that our options are probably these. First is that we can adjourn and serve him personally for a new date. The second would be that we could dismiss the appeal as abandoned without prejudice to his right to revive it and the third is that we could proceed on the evidence. Section 7 of the Statutory Powers and Procedures Act, have a disposition of the merits and subject to Judicial Review be binding. It would be a with prejudice disposition. There is also a procedure under I believe it is Section 4 of the Statutory Powers and Procedures Act where it can be dismissed as frivolous or vexatious but there is a procedure set out in the section that you have to give him notice and permit written argument and I think you might even have to have a racing rule in place. I'm not sure. That didn't seem to me to be a reasonable option.
MS. FRIEDMAN: Out of an abundance of caution and to ensure due process and procedural fairness I don't think it would be fair to proceed in his absence given the uncertainty relating to service. Subject to your views, Mr. Chair, I think that options one or two, either to adjourn and request a new hearing date or alternatively to dismiss the appeal without prejudice seem to be reasonable options. The Administration would support the second option given that it appears to me, based on his actions or lack thereof, that he has no interest in proceeding with this appeal as no inquiries have been made.
MR. CHAIRMAN: Well, it seems to me two things. Firstly that he has demonstrated no reasonable intent to pursue the appeal. He wrote a three line letter and that's the end of it. Secondly, and by saying this I will disqualify myself from the hearing if it comes back but having reviewed the documents you filed it seems to me that one, over the course of about ten years he has failed to disclose the over 80 conviction.
MS. FRIEDMAN: That's correct.
MR. CHAIRMAN: Although there is an explicit question put in the form. The second thing is that over that same time frame he has failed to disclose the suspension of his driving license for non payment and possibly the 0.80 offence.
MS. FRIEDMAN: Yes.
MR. CHAIRMAN: The third thing is there is a question on the same form, the application, about pending charges and this charge was laid, the fraud charge was laid, in 2007 but he filed the application in I believe June the 6th of 2008 for his 2009 license. I am prepared to make a reasonable assumption that he knew there was a pending charge.
MS. FRIEDMAN: That would be the position of the Administration as well.
MR. CHAIRMAN: Right. Well, on that basis he has failed to disclose a serious pending criminal charge, serious to the extent that in terms of money it approaches one half million dollars he wrongfully took from his employer or deprived his employer of. Secondly, it extended over a course of three years 1999 to 2003 and over those three years there were a significant number of individual transactions and those transactions were serious by the time span and the amount as I mentioned but they were further compounded by the fact that they were a breach of trust with his employer on a long term standing basis and it seems to me that that position is indefensible in this forum because one, there is a civil judgment for $373,000 or something and two, there is a guilty plea and a finding of a court and a sentence passed and in fact he is currently serving a jail term in house arrest format.
MS. FRIEDMAN: Yes.
MR. CHAIRMAN: So and the thing that caught my eye on that was in terms of that house arrest format he is wrangling about what the conditions are now. He is postulating what I regard to be preposterous the proposition that that doesn't apply on weekends. It seems to me to demonstrate a non reliable person, that taken in itself, because the court order is binding on him and whatever the terms are that's the end of it. So from all those points of view it seems to me that there is an obvious lack of merit, integrity being in the cutting edge of racing in all its forms and in that context I'm inclined rather to dismiss it, put an end to it, rather than to run this circus again. We started at 8:00 and I'm really speaking for the record now. I don't mean to create the impression that I think you were unaware of what happened. We started at 8:00, no show, no word, no response to inquiry. We then go through the procedure again as far as calling this case for trial at 8:30 and 9:00 here we are. I don't see any reason why we should go through that again. Therefore I'm inclined to not adjourn it and re-serve. I'm inclined to dismiss it as abandoned without prejudice for him to come forward and demonstrate good cause as to why he should be permitted to continue.
MS. FRIEDMAN: As indicated, the Administration thinks that is an extremely reasonable option and given that it is without prejudice to the appellant should he wish to file his appeal in the future.
MR. CHAIRMAN: And there is a secondary purpose in my offering that opinion and disqualifying myself on the appeal in that it will now be available to him in black and white how his case looks to somebody else and that may have some bearing on his decision to let matters rest or to resurrect the appeal.
MS. FRIEDMAN: And just on a technical matter in terms of the time frame for appealing from the dismissal would it be fair to say that it would be the fifteen day period?
MR. CHAIRMAN: Well, I would go a step further and say this, that as part of my order the reasons that I have just dictated now will be served personally upon Mr. Manneke with a copy of the appeal provisions of the ORC or under the Statutory Powers and Procedures Act or whatever it is. What do the rules provide?
MS. FRIEDMAN: Fifteen days following issuance of the Notice of Proposed Order by the Director.
MR. CHAIRMAN: Well, what I will do is this. I make the order that he be served personally and I further order that the right to resurrect the appeal will be confined to the 30 days following the personal service.
MS. FRIEDMAN: Thirty days?
MR. CHAIRMAN: Yes. He is entitled to reasons. I will tell you the reason why I did that. He doesn't sound like a good responder to me. With reference to the appellant's license the disposition is as follows. Any cancellation of the license is suspended during the aforesaid 30 day period. If no appeal is launched within that time the Director's Notice of Proposed Order is hereby confirmed and by way of footnote this provision is made not on the basis of any perceived merit but on the basis of the uncertainty regarding service of the Administration's documents. An order will issue accordingly. Just for the record I will mark these documents. Exhibit number 1 will be the notification letter of May 5th.
EXHIBIT NO. 1: notification letter dated May 5th, 2009.
MR. CHAIRMAN: Exhibit number 2 will be the follow up letter of May 13th which was accompanied with the factum which on its face ‑‑
MS. FRIEDMAN: The full package is the factum and book of documents is not attached to that letter. I made a copy.
MR. CHAIRMAN: Which on its face refers to an 8:00 a.m. start.
EXHIBIT NO. 2: notification letter dated May 13th, 2009 with attachments.
MR. CHAIRMAN: Exhibit 3 will be tab number 10 of the book of documents. That's the Notice of Hearing and for completeness I will mark the book of documents as Exhibit 4.
EXHIBIT NO. 3: Notice of Hearing.
EXHIBIT NO. 4: Administration book of documents.
MR. CHAIRMAN: And Exhibits 1 and 2 are accompanied by the Post Office report regarding service.
MS. FRIEDMAN: Would you like a copy of the Post Office information in regards to the Notice of Hearing?
MR. CHAIRMAN: I think that would be wise.
MS. FRIEDMAN: I also have the search, the Canada 411 search, on his telephone number.
MR. CHAIRMAN: Exhibit 5 will be the Post Office report for the Notice of Hearing.
EXHIBIT NO. 5: Post Office report re Notice of Hearing.
MR. CHAIRMAN: Exhibit 6 will be the ... what do you call that, reverse search from the telephone?
MS. FRIEDMAN: Yes, with Canada 411.
EXHIBIT NO. 6: Canada 411 reverse search.
MR. CHAIRMAN: Thank you.
MS. FRIEDMAN: Thank you.
CERTIFIED CORRECT:____________________________
RAYMOND P. MACDONALD, B.A., CVR
Commissioner of Oaths