Ontario
Racing
Commission
TB
RULING NUMBER COM SB 035/2008
COMMISSION HEARING TORONTO, ONTARIO – DECEMBER 17, 2008
IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF THE APPEAL OF
STANDARDBRED LICENSEE LEOPOLD AUGER
Standardbred Licensee Leopold Auger sought an appeal before the Commission to dispute the Judges Ruling No. SB 39206 issued against him on July 11, 2008.
On December 17, 2008, a Panel of the Commission consisting of Chair Rod Seiling and Commissioners George Kelly and David Gorman, convened to hear the appeal.
Luisa Ritacca and Brennagh Smith appeared as counsel for the Administration. Leopold Auger was self-represented.
Upon hearing the evidence presented by the parties and upon reviewing the written submissions filed, the Ontario Racing Commission denies the appeal. Mr. Auger’s penalty remains a full suspension of ten days and a fine of $500.00. The Judges are to determine the effective date of the suspension.
The Panel’s reasons for decision are attached hereto.
DATED at Toronto this 13^th^ day of January 2009.
BY ORDER OF THE COMMISSION
John L. Blakney
Executive Director
REASONS FOR DECISION
Overview
- Standardbred licensee, Leopold Auger, appealed Judges Ruling No. SB 39206 issued against him on July 11, 2008, wherein he was fully suspended for ten days (July 19 to July 28, 2008) and fined $500 for violating SB Rules No. 6.17 (c) and (d) at Rideau Carleton Raceway on March 2, 2008.
Background
Mr. Auger appealed Judges Ruling No. SB 39206 (Ex. 1, tab 1), issued on July 11, 2008. It was issued following a hearing held on July 11, 2008, in which Mr. Auger refused to participate, despite being officially served notice (Ex. 1, tab 10). On July 18, 2008, Mr. Auger filed a Notice of Appeal (Ex 1, tab 4), the Executive Director of the Ontario Racing Commission (ORC), granted him a stay (Ex. 1, tab 2).
A de novo hearing was convened on December 17, 2008, to hear his appeal. Mr. Auger represented himself at the hearing with Luisa Ritacca assisted by Brennagh Smith representing the Administration of the ORC. At the request of the appellant, a French translator, Adrian Fonda, participated in the hearing. After being sworn in, Ms. Fonda provided simultaneous translation for the entire proceedings.
On March 2, 2008, at the request of the Judges, Mr. Auger, along with his daughter, Emillie Auger, attended a meeting in the Judges’ office in the backstretch at Rideau Carleton Raceway. The Augers were involved in an investigation of an unrelated incident that was to require their participation in a hearing as witnesses. To accommodate the Augers, who live in Trois Rivieres, P.Q., some four and one-half hours away, the Judges attempted to schedule the meeting when the Augers had a horse into race at Rideau Carleton. A previous meeting, a week earlier, had to be cancelled when the Augers arrived too late for the meeting to proceed prior to the races.
When the Augers arrived at the track on March 2, 2008, they had to wait for a meeting that was in progress in the Judges’ office. Shortly after 5:00 p.m., that meeting concluded and the Augers entered the room where Judge Donald Raymond was seated at one of three desks in the room, all facing the entrance door. Mr. Raymond represented the Judges as he was the only one of the three Judges fluently bilingual. Senior Judge, Rick Rier, was the only other person in the room according to the testimony of Judges Raymond, Rier and Campbell. Mr. Auger testified there were seven people in this relatively small office; his daughter testified there were at least three others.
Judge Raymond testified that the purpose of the meeting was to explain the process of the upcoming hearing that was scheduled for the following week, March 9, 2008. The hearing into the matter could not be heard that day, March 2, 2008, because one of the Judges required for the hearing was away. Mr. Raymond attempted to serve the Notice of Hearing papers to Mr. Auger. To do this would require Mr. Auger to sign an acknowledgement of receipt of service. They could also be sent to him via registered mail. This latter fact, on being informed by Judge Raymond, appears to have increased the appellant’s frustration and anger.
It was agreed that Mr. Auger became angry with the level of his voice increasing in volume and his demeanour becoming more agitated during his brief discussions with Judge Raymond. It was his contention, denied by Mr. Raymond, that the Judge also raised his voice with him during the meeting which lasted about five to seven minutes. Mr. Auger admitted to calling the Judges incompetent but denied calling them dictators. He advocated that the ORC should be disciplining incompetent officials such as the ones he confronted on March 2, 2008 at Rideau Carleton Raceway.
Mr. Auger admitted that he took the Notice of Hearing papers, ripped them up in front of Judge Raymond. He contended that he threw them down on the desk. Judges Raymond and Rier testified that he threw the torn papers at Judge Raymond. Judge Rier, on witnessing the actions of Mr. Auger, told Mr. Raymond in the presence of the Augers, that as a result of his actions, his horse was to be scratched from the race and he was to leave the racetrack.
Judge John Campbell, who was standing outside the office along with ORC official, Paul MacDonald, heard the yelling in the office and went in to see what was the cause. His testimony confirmed the angry outbursts by the appellant, the ripping of the papers by Mr. Auger and that Mr. Raymond was trying to reason with him.
After Mr. Auger ripped up the papers, he turned away from Judge Raymond and proceeded to leave the office. Mr. Campbell was standing in front of the door, as according to him, there was insufficient room for him to get around the Augers, who were standing in front of Judge Raymond. Mr. Campbell was about three to four feet behind the Augers in what is a relatively small room.
Mr. Auger claimed he asked Mr. Campbell, whom he did not know at the time was an ORC Judge, to move from the door, both in French and English. Mr. Campbell’s position was that he said “Whoa” to Mr. Auger to allow him time to move away from the door.
Mr. Auger testified that he put pressure on Mr. Campbell’s wrist like “judo” action to move Mr. Campbell away from the door. He stated that there was no intent to hurt him. Judge Campbell testified that he grabbed his arm and shoved him aside into the filing cabinet but he was not injured from the shove or from coming into contact with the filing cabinet.
Shortly after leaving the office, Mr. Auger returned to retrieve his daughter who had remained standing in front of Judge Raymond as, according to him, Mr. Raymond asked her to remain. It was his claim that he did not want the Judges to bully her. Ms. Auger, by all accounts, did not speak during the brief meeting. She testified that she had agreed to come to the meeting as she felt threatened that her ORC licence could be jeopardized, if she did not co-operate. She did admit that she was unable to calm her father. They were both upset, she admitted, on hearing that there would be no hearing that day, that her father was angry, that he called the Judges incompetent and that he ripped up the papers.
Issue
- Did Mr. Auger “use insulting, offensive or improper language” which would be a violation of SB Rule No. 6.17 (c)? Was he “guilty of any improper conduct”, a violation of subsection (d) of that same rule?
Decision
- After carefully listening to the testimony and reviewing the submissions and the evidence, the Panel denies the appeal. Mr. Auger’s penalty remains a full suspension of ten days and a fine of $500. The Panel notes that the penalty imposed by the Judges is lenient given the range of penalties available to them and defers to their judgement despite the very serious nature of the offences. It notes that there were possible grounds for a violation of subsection (a) of SB Rule No. 6.17, assault and battery regarding the physical contact with Judge Campbell. The Judges are to determine the effective date of the suspension.
Reasons for Decision
Judges, as are all officials of the Ontario Racing Commission, the delegated representatives of the governing board. Therefore, they deserve the same respect accorded to those board members. It is their job in enforcing the rules of racing, to protect the health and welfare of the horse, protect the safety of participants and to protect the public interest. Any assault on their authority or person in any manner will be treated in a most serious manner. It cannot and will not be tolerated. The Panel agrees with the reasons, as noted in the McNamara decision, Re McNamara, [1997] O.R.C.D. No. 45, Commission Ruling Number COM SB 261/1997, p 46, “Standardbred Judges are to be treated with courtesy and respect by standardbred licensees. Should a licensee feel aggrieved by decisions or conduct of the Judges, there is recourse to the Commission. That recourse must never include the kind of abuse that was directed toward the Judges....”
Mr. Auger is a licensee of the ORC. He admitted that he is aware, as a licensee, that he is bound by the rules of racing and that those rules include appropriate conduct and behaviour and the inappropriateness of offensive language including the proper treatment of Commission officials.
Mr. Auger admitted to using offensive language, therefore there is no question he is in violation of SB Rule No. 6:17(c). In a like fashion, he is also guilty of violating SB Rule No. 6.17 (d) as he also admitted to using force on Judge Campbell to move him away from the door. All of the above facts were supported by the testimony of Judges Raymond, Rier and Campbell. This evidence, combined with his confession, leaves no dispute. The facts are clear, cogent and compelling.
The Panel accepts the testimony that Mr. Auger was not provoked, that he was being treated in a fair manner. It does recognize that he and his daughter may have misunderstood the process. Even if that were to be the case, that would in no way condone his actions. As confirmed by Emillie Auger, her father was already upset and angry. Had he shown any restraint, he could and should have allowed Judge Raymond to explain the due process that this Commission provides to all licensees. His anger was such that he ignored his daughter’s attempts to calm him. In as much as the conversation was taking place in French, Mr. Auger cannot claim a defence of non-comprehension.
DATED this 13^th^ day of January 2009.
Rod Seiling
Chair