RULING NUMBER COM QH 002/2009
COMMISSION HEARING TORONTO, ONTARIO – MAY 12, 2009
IN THE MATTER OF THE RACING COMMISSION ACT S.O. 2000, c.20;
AND IN THE MATTER IN THE APPEAL OF
QUARTER HORSE LICENSEE, JOHN McCUBBIN NEILL
John McCubbin Neill (“Neill”) is licensed by the Ontario Racing Commission as an Exercise Person/Trainer/Owner, Licence No. 127951 for Quarter Horse racehorses.
In early September 2007, at Ajax Downs Racetrack, Neill was alleged to have violated Rule 15.11.01, “No licensee shall intimidate, threaten or coerce any other licensee in any manner.”
On October 28, 2007, at Ajax Downs Racetrack, following a Hearing by the track Stewards, Neill was found to have been in violation of this Rule.
The penalty imposed was a $300 fine.
Neill appealed against the decision.
On December 5. 2007, at Toronto, following a Hearing by the Industry Appeal Board, Neill was found, by majority decision, to have been in violation of this Rule.
Neill appealed against the decision.
On Tuesday, May 12, 2009, a Panel of the Ontario Racing Commission consisting of Chair Rod Seiling, Vice Chair James M. Donnelly and Commissioner David Gorman, was convened to hear this matter.
Neill appeared in person. Neill was self-represented. Anthony Williams appeared as counsel for the Administration.
Upon hearing the submissions of counsel and upon reading the Position of the Respondent, filed by counsel, the Panel ordered as follows:
i. that the Appeal be allowed;
ii. that the December 5, 2007 Ruling by the Industry Appeal Board, whereby Neill was found to have been in violation of Rule 15.11.01 is set aside.
The Position of the Respondent is attached to this Ruling.
DATED this 27th day of May 2009.
BY ORDER OF THE COMMISSION
John L. Blakney
Executive Director
IN THE MATTER OF THE APPEAL
BY QUARTER HORSE LICENSEE
JOHN MCCUBBIN NEILL
APPELLANT
- and –
THE ONTARIO RACING COMMISSION
RESPONDENT
POSITION OF THE RESPONDENT
TAKE NOTICE that the Ontario Racing Commission, the Respondent in the these proceedings, takes the position that the following Order is appropriate:
(i) that the appeal of John McCubbin Neill be allowed and
(ii) that the December 5, 2007 Ruling of the Industry Appeal Board, that Neill had violated Rule 15.11.01 of the Rules of Quarter Horse Racing be set aside.
BACKGROUND FOR THIS POSITION TAKEN BY THE RESPONDENT:
The Licensees:
Barry K. Wood, (“Wood”), is licensed by the Ontario Racing Commission as a Quarter Horse Exercise Person/Trainer, licence number 128758.
John McCubbin Neill, (“Neill”), is licensed by the Ontario Racing Commission as a Quarter Horse Exercise Person/Trainer/Owner, Licence Number 127951.
The Chronology:
On Sunday, September 16, 2007, Wood complained to the Stewards at Ajax Downs Racetrack, (“the Racetrack”), about the alleged recent conduct of Neill.
On Sunday, October 28, 2007, following a hearing at the racetrack, a panel of three stewards, (“the Stewards”), found that Neill had “harassed and threatened” Wood. A $300.00 fine was imposed upon Neill for the violations.
On Friday, November 9, 2007, Neill appealed against the Stewards’ decision to the Industry Appeal Board, (“the Board”).
On Wednesday, December 5, 2007 following a hearing at Toronto, a three person panel of the Board, found, “by majority decision, … that Mr. Neill, by his actions, did violate Rule 15.11.01.”
In December 2007, Neill appealed against this decision of the Board to the Ontario Racing Commission, (“the Commission”).
In late December, 2008, Neill provided fresh information to a Commission Investigator, which included the names of relevant and material witnesses to the first complaint by Wood against Neill.
A further investigation of the complaints against Neill was then conducted by the Investigations Unit of the Commission.
The Rule:
- 15.11.01 “No licensee shall intimidate, threaten or coerce any other licensee in any manner;”
per Rules of Quarter Horse Racing.
- There are three prohibited actions pursuant to Rule 15.11.01;
(i) Intimidation,
(ii) threatening and
(iii) coercion.
Analysis:
- i) The Stewards
The Stewards found that Neill had “harassed and threatened” Wood.
Although harassment in certain situations may be found to be a sub-species of one or more of the three prohibited actions, only “threatening” is a specific prohibited act under Rule 15.11.01.
- ii) The Board
The Board found “…that Mr. Neill, by his actions, did violate Rule 15.11.01.” However no specific prohibited action(s), of the three specified in Rule 15.11.01, was referred to in the decision of the Board.
- Of the four complaints by Wood against Neill only two were capable of constituting “threatening” in violation of Rule 15.11.01.
Brief Summary of the Relevant Evidence:
The “first complaint” capable of constituting “threatening” was that on a Sunday in early September 2007, at the Racetrack, Neill made a face-to-face threat to cause bodily harm to Wood.
Brief Summary of the relevant evidence for the first complaint: eight persons were present for this encounter. Interview statements have now been obtained from all eight witnesses: Wood, Neill and 6 others. This evidence was not available to the Board of Stewards, the Board or the prosecutor at the original hearings. Although Neill launched into a protracted and unseemly tirade against Wood, Wood stands alone in his recollection that Neill threatened that he “should take me outside and beat the fucking shit out of me.” Of the seven other persons who were present for the entire encounter, Neill and five independent witnesses stated that no threat of any nature was uttered by Neill against Wood. The sixth independent witness, when finally interviewed during the re-investigation in January 2008, about the early September occurrence, recalled only the “second complaint” from mid-September 2007.
The “second complaint” capable of constituting “Threatening” was that in mid-September 2007, at the Racetrack, Neill made a “threat” to others, to harm Wood at his farm over an outstanding debt owed by Wood to a third person.
Brief Summary of the relevant evidence for the second complaint.. Neill was interviewed in relation to this specific allegation only in the subsequent investigation. This evidence was not available to the Stewards, the Board or the prosecutor at the original hearings. The troubling words attributed to Neill, of a hearsay nature, if actually uttered by Neill, would appear to have been made as a narrative statement, or description of events, that may unfold in the future, as opposed to a declaration by Neill, that he, either as a principal, or as a party to an offence, had an intention to threaten Wood.
CONCERNS RE: FACTORS WITH POTENTIAL IMPACT UPON PROCEDURAL FAIRNESS:
Hearing before the Stewards:
The original investigation conducted into the complaint by Wood against Neill was incomplete.
There was an absence of a written notice to Neill of the specific offences/Rules, he was alleged to have violated by his conduct.
There was an absence of disclosure.
Specific reasons were not provided by the Stewards in their adverse findings against Neill.
No audio recording was made of the hearing held before the Track Stewards.
Hearing before the Board:
The challenges created by the incomplete original investigation
and incomplete disclosure continued.
Troubling issues arose in relation to the relevance and admissibility of two areas of evidence.
The ability of Neill to make full answer and defence would appear to have been compromised by a combination of factors.
An adjournment in favour of the defence may have been appropriate in the circumstances.
POSITION OF COUNSEL FOR THE RESPONDENT:
Proceedings for violations of the Rules of Racing are governed by the principles of Administrative Law.
The burden of proof is upon the Administration.
The standard of proof is upon a balance of probabilities.
I have reviewed all of the statements gleaned from both the original and subsequent investigations. I have considered the relevant admissible evidence in relation to both the “face-to-face” and the “hearsay” threats.
In my opinion there is no reasonable prospect of conviction against Neill in relation to the specific Rule of Quarter Horse Racing that Neill is alleged to have breached, Rule 15.11.01.
Although the fresh investigation revealed no reasonable prospect of conviction in relation to a violation of Rule 15.11.01 it did disclose an evidentiary foundation for potential proceedings pursuant to Rule
16.05 (a) “disturbed the peace”;
16.05 (b) “Made themselves obnoxious on the grounds of any association; and
24.01 “…conduct prejudicial to the best interests of racing”
However, in view of the history of this matter, in combination with concerns in relation to procedural fairness, further proceedings at this late stage would be inappropriate.
POSITION OF THE RESPONDENT
This background is the foundation of the position of the Respondent that the following Order is appropriate:
(i) that the appeal of John McCubbin Neill be allowed and
(ii) that the 5 December 2007 Ruling of the Industry Board that Neill violated Rule 15.11.01 of the Rules of Quarter Horse Racing be set aside.
Dated at Toronto
(original signed by AW)
Anthony Williams
Counsel
This 11th day Ontario Racing Commission
10 Carlson Court
of May, 2009 Suite 400
Toronto, Ontario M9W 6L2
(416) 213-0520 - phone
(416) 213-7827 – facsimile transmission