Ontario
Racing
Commission
TB
RULING NUMBER COM TB 001/2009
COMMISSION HEARING TORONTO, ONTARIO – JANUARY 7, 2009
IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF THE APPEAL OF
THOROUGHBRED LICENSEE WILSON ADHEMAR CASTELO
Introduction
Wilson Adhemar Castelo (“Castelo”), Licence Number 130329, is licensed by the Ontario Racing Commission as a thoroughbred tradesperson (farrier).
Procedural History
On March 12, 2008, John L. Blakney, Executive Director of the Ontario Racing Commission, issued a Notice of Proposed Order to suspend or revoke the licence of Castelo, pursuant to Section 22 (1) of the Racing Commission Act.
On March 24, 2008, Castelo requested a Hearing before the Commission, pursuant to Section 22 (3) of the Racing Commission Act.
On January 7, 2009, a Panel of the Ontario Racing Commission consisting of the Chair Rod Seiling, was convened for this Hearing.
The Hearing
A Hearing was held before the Commission Panel. Castelo appeared in person at the Hearing. No counsel or other representative appeared on behalf of Castelo. Anthony Williams appeared as counsel for the Administration.
Upon hearing the evidence of Jennifer Plumbtree, former Licensing Agent at Kawartha Downs Raceway, Penny Dozer, Licensing Agent, Woodbine Raceway, Lorra Deasy, Investigating Officer and Detective Constable, Ontario Provincial Police, and upon reviewing the exhibits filed, and upon hearing both the admissions and submissions of Castelo, and upon hearing the submissions of counsel for the Administration, the Panel ordered as follows:
i. That the application by the Executive Director of the Ontario Racing Commission to either suspend or revoke the licence of Castelo is dismissed;
ii. That a conviction be entered against Castelo for violation of Rule 15.23 of the Rules of Thoroughbred Racing in that he made “false, untrue or misleading statement(s)” on an application for a licence;
iii. That Castelo be required to pay a fine of $7,500 for this violation;
iv. That Castelo, before being eligible for an Ontario Racing Commission licence as a tradesperson, must pay one half of the fine ($3,750) by March 15, 2009, with the other half ($3,750) payable by July 1, 2009.
DATED this 15th day of January 2009.
BY ORDER OF THE COMMISSION
John L. Blakney
Executive Director
REASONS FOR DECISION
Overview
- Licensee Wilson Castelo requested a hearing before the Ontario Racing Commission regarding the Director’s Notice of Proposed Order to revoke Mr. Castelo’s licence.
Background
Mr. Castelo, licensed by the Ontario Racing Commission (ORC) as a tradesperson, Licence Number 130329, made applications to the ORC for both a standardbred licence and a thoroughbred licence. The standardbred application was made at Kawartha Downs on July 20, 2002 (Ex. 1, tab 10), and the thoroughbred application was made on April 6, 2007 (Ex. 1, tab 9). Both forms require the applicant to provide his/her past history in terms of convictions, licence suspensions, denials or revocations.
Mr. Anthony Williams, legal Counsel for the ORC, tabled a Book of Documents containing nineteen tabs as Exhibit 1. Mr. Castelo, who represented himself, agreed the evidence contained in Exhibit 1 was correct except for the information in tabs 11 and 14. Tab 11 is a 2002 ORC due diligence report regarding the applicant’s failure to disclose his past history regarding an outstanding criminal charge and previous criminal convictions. Tab 14 is a copy of an Ontario Court decision of hearing involving the appellant, held on January 17, 2006, related to his alleged uttering threats.
By way of the agreed statement of facts, Mr. Castelo’s record indicates nineteen sentencings, twenty-nine convictions and one absolute discharge.
On both the standardbred licence application (Ex. 1, tab 9) and the thoroughbred licence application (Ex. 1, tab 10), the applicant is asked to provide any information about being “found guilty or convicted of an offence in any jurisdiction” or having “a licence or registration certificate of any kind refused, denied, suspended or revoked in any jurisdiction”.
Mr. Castelo, in his July 20, 2002, standardbred application, referenced an absolute discharge issued on August 16, 1977, for a conviction (Ex. 1, tab 5) for common assault. He did not list or reference any of his other convictions at that time. In his April 6, 2007 thoroughbred licence application, the same questions are asked with Mr. Castelo only answering an affirmative to his absolute discharge.
ORC Licensing Agents Penny Dozier and Jennifer Plumbtree, who were the respective agents for the appellant’s respective applications, both testified that licensees are required to complete the application and that the questions do include a licensee’s driving record. Furthermore, that licensees sometimes ask what information is required and that they are always told all relevant information including driver’s licence.
Mr. Castelo claimed that he did not think information regarding his driver’s licence history was required. The basis for that claim was that some gentleman with glasses told him he did not have to provide that information. OPP Detective Constable, Lorra Deasy, confirmed that Mr.Castelo told another OPP Investigator on being interviewed that the licensing agent told him that the question in the application did not refer to his driver’s licence. He also stated that with his fingerprints on file, he assumed that the ORC would have access to his history and that he could not hide his past record.
On March 12, 2008, the Director of the ORC issued a Notice of Proposed Order (Ex. 1, tab 1) to revoke Mr. Castelo’s licence. Mr. Castelo appealed that order on March 24, 2008 (Ex.1, tab 2).
Issue
- Did Mr. Castelo violate the rules of racing by not truthfully answering the questions regarding his past licensing history on both the standardbred and thoroughbred licence applications of July 20, 2002 and April 6, 2007, respectively?
Decision
- After carefully reviewing the testimony, the evidence and the submissions tendered, the Panel grants the appellant’s appeal but fines him $7,500. Mr. Castelo, before being eligible for an ORC tradesperson licence, must pay one half of the fine by March 15, 2009 with the other one half payable by July 1, 2009.
Reasons for Decision
The Panel is of the opinion that TB Rule No. 15.23 is a much better way to deal with Mr. Castelo’s transgressions. Capital punishment by way of the Proposed Order to Revoke is too harsh given the Commission’s mandate under the Racing Commission Act regarding social responsibility. A financial penalty of this magnitude will act as a deterrent to anyone who may consider committing a similar fraud.
Mr. Castelo is not a threat to the integrity of the sport. The facts in this case are specific to it. This case does not create a precedent. The appellant is well entrenched within the industry with a sizeable number of clients, expelling him from working and providing his well-regarded services serves no purpose.
Notwithstanding, Mr. Castelo did not fulfill his obligation to honestly answer the questions on either licence application as was his duty. This is a serious violation, let there be no doubt about it, and requires an equally serious penalty. His reasons for failing to disclose are a “poor excuse” at best. If Mr. Castelo had any doubts as to what his obligations were regarding answering the questions, he could have asked either licensing agent but for whatever reason, chose not to ask them. On a balance of probabilities, he was attempting to hide his record, thereby he is guilty of violating Rule 15.23 by “making a false, untrue or misleading statement on an application for a licence.”
DATED this 15th day of January 2009.
Rod Seiling
Chair