RULING NUMBER COM TB 013/2008

COMMISSION HEARING TORONTO, ONTARIO – DECEMBER 4, 2008

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

THOROUGHBRED LICENSEE DENNIS CHRISTOPHER PERSAUD

Introduction

Dennis Christopher Persaud, ("Persaud") Licence Number 128419, is licensed by the Ontario Racing Commission as an exercise person for thoroughbred racehorses.

Procedural History

On Sunday, August 31, 2008, Persaud was charged with smoking a cigarette at the Fort Erie Racetrack in a non-designated area, contrary to the Stable Area Safety Rules and Regulations Handbook, Fire Safety Provisions and Rule 41 of the Nordic Gaming Corporation 2008.

On Tuesday, September 9, 2008, Persaud appeared before a Panel of Track Stewards for a Hearing.

The penalty imposed for a third offence was as follows:

Suspension for the balance of the Fort Erie Race Meet (a period of 49 days)

On Sunday, September 14, 2008, Persaud appealed against the conviction.

On Wednesday, September 17, 2008, Persaud was granted a conditional stay of the suspension penalty.

(Persaud had served 8 days of the original suspension)

On Thursday, December 4, 2009, a Panel of the Ontario Racing Commission consisting of the Chair Rod Seiling, Commissioners Brenda Walker and David Gorman convened to hear the appeal.

The Hearing

A de novo Hearing was held by he Commission. Anthony Williams appeared as counsel for the Administration. No counsel or other representative appeared on behalf of Persaud. Persaud did not appear in person.

Upon hearing the evidence of Caroline Irene Merry, Security Officer, and Richard Anthony Grubb, Senor Track Steward, and upon reviewing the exhibits filed, and upon hearing the submissions of counsel for the Administration, the Panel ordered as follows:

That the appeal against conviction is dismissed;
That a conviction against Persaud for his third violation of Rule 41 of the Nordic Gaming Corporation be entered;
That the suspension imposed upon Persaud is for a total of 68 days. (Eight days of this suspension have already been served);
That the remaining 60-day suspension is to start with the commencement of the 2009 thoroughbred racing season in Ontario;
That the Commission was of the opinion that the request for a Hearing by Persaud was frivolous;
That Persaud is further ordered to pay a penalty to the Commission of $1,500, pursuant to Section 11 (8) of the Racing Commission Act 2000 and Regulation 1.

DATED this 15th day of January 2009.

BY ORDER OF THE COMMISSION

John L. Blakney

Executive Director

REASONS FOR DECISION

Overview

Thoroughbred Licensee, Dennis Persaud, appealed Stewards Ruling TB 5560/08 dated September 9, 2008, wherein he was suspended for the balance of the 2008 Fort Erie meet (49 days) and fined $150. On September 16, 2008, the Executive Director granted Mr. Persaud a stay of the suspension until such time his appeal was heard.

Background

A de novo hearing was convened on December 4, 2008, to hear Mr. Persaud's appeal. Mr. Anthony Williams represented the Administration of the Ontario Racing Commission (ORC). Mr. Persaud was not present for the hearing that was scheduled as per the Notice of Hearing for 1:00 p.m.
Mr. Williams confirmed to the Panel that Mr. Persaud had been properly served notice of the hearing and provided the appropriate disclosure as required per ORC policy. The following evidence was provided to support those statements:

a. Notice of Hearing dated October 31, 2008 (Ex. 1, tab 14).

b. Acknowledgement of Service dated by November 1, 2008 (Ex.1, tab 15), signed by the appellant and Steward Grubb who personally hand served Mr. Persaud and testified as such.

c. Ms. Darla Wright, the person who is in charge of the Commission's legal support services, spoke to the appellant on September 30, 2008. He advised her that he was considering withdrawing his appeal. She advised him to contact the Stewards.

d. On October 30, 2008, Ms. Wright attempted to contact Mr. Persaud but was unable as all his telephone numbers that she had on file were out of service. She also attempted to send Mr. Persaud the disclosure package but they were returned as undeliverable. On that same day she contacted Ms. Sue Brennan at Woodbine racetrack and asked her to have Mr. Persaud paged. Within forty-eight hours service was made.

e. On December 3, 2008, Mr. Persaud left a voice mail message (9:00 a.m.) for Ms. Wright indicating he wanted an adjournment but was at a phone number where he could not be reached.

f. Later that same day, a follow up call by Mr. Persaud (3:44 p.m.) was forwarded to Mr. Williams in Ms. Wright's absence. He confirmed the morning call to Ms. Wright and his desire for an adjournment, as his legal counsel was not available, suggesting a January 2009 hearing date. Mr. Williams told him there were numerous dates open in January but he would have to appear before the Panel the next day for it was now the Panel's decision as all the things were now ready for the hearing the next day. He then told Mr. Williams he could not attend the next day as he had a stomach ailment. He was then provided a contact number for the Commission to provide it a written reason for his need to adjourn the hearing following which he then told Mr. Williams he might abandon his appeal and begin serving his days.

g. On December 4, 2008, at around 10:09 a.m. Mr. Persaud called Ms. Wright telling her he was not well and was going to a hospital. He replied to her on being asked where he was, "somewhere north of Brampton." Ms. Wright transferred his call to Maureen Harquail, Director of Legal Services for the ORC. Mr. Persaud acknowledged his conversations with both Ms. Wright and Mr. Williams. Ms. Harquail told Mr. Persaud that last minute requests for an adjournment were not helpful but she provided him a fax number for him to send in his request which would be provided to the Panel.

h. At the commencement of the hearing at approximately 1:10 p.m., no communication had been received from Mr. Persaud.

The Panel, following a brief conference, agreed to proceed with the hearing in the absence of Mr. Persaud. The basis of that decision is contained in Ex. 1, tab 14, in the body of the Notice of Hearing, para 6, which the appellant was served and so acknowledged. It reads "And take further notice that pursuant to Section 7 of the Statutory Powers Procedure Act, R.S.O. 1990. C. S. 22, when notice of a hearing has been given to a party to the proceedings, and the party does not attend the hearing, or remain in attendance thereat, the tribunal may proceed in their absence, and they are not entitled to any further notice in the proceedings".
Notwithstanding the aforementioned authority, the Panel was prepared to grant the appellant an adjournment had he made the request in writing as he had been directed. Complicating matters was the appellant's unwillingness to provide Commission staff with any contact information making service of a new hearing date impossible notwithstanding any assurance Mr. Persaud would attend a rescheduled hearing given his demonstrated irrational behaviour.
Before proceeding with the hearing, the Panel recessed to allow both Steward Grubb who knew the appellant and Supervisor of Thoroughbred Racing, Brent Stone, to check the outer offices of the Commission and the reception areas of the building for Mr. Persaud. Not being able to locate him, the hearing commenced.
Caroline Merry, security officer for Fort Erie Racetrack, testified that she observed Mr. Persaud at approximately 5:45 a.m. on August 31, 2008, smoking while sitting on a picnic table that was positioned directly adjacent to barn #7 in the stable area of the track. This is a violation of the track rules (Ex. 1, tab 20,p. 18, 41 a). These rules outline the areas in the backstretch where smoking is not permitted. The rules are specific; all areas adjacent to barns are no smoking. Ms. Merry testified that Mr. Persaud would be aware of those rules as every person is provided with a copy of those rules. At that time she spoke to Mr. Persaud she told him she was surprised he would break the rules again following his same offence the night before. His response was that everyone smokes there. She told him that was not true.
Ms. Merry did not write up a ticket at that time as it was her responsibility to have the track open for training and she did not want horse people waiting at the barricade with their horses. Following her opening of the track she wrote a ticket at 5:50 a.m. (Ex. 1, tab 1) and gave it to her supervisor, Mr. Kyle Mernagh to serve Mr. Persaud. Mr. Mernagh confirmed those events and the service of the ticket via a letter dated November 27, 2008 (Ex. 3) which also indicated Mr. Persaud was involved in an altercation with another licensee the night before at the track.
This violation on the 31st was Mr. Persaud's third violation of the rules as he had violated the same rule the previous evening and had been trespassed by track officials but had been allowed access to the stable area that day to work, according to Ms. Merry.
On September 9, 2008, the ORC Stewards at Fort Erie Racetrack held a hearing into the matter. The two offences for smoking were combined into one hearing. Mr. Persaud, according to Steward Grubb, was represented by HPBA Vice President, Nick Gonzalez. According to Mr. Grubb, Mr. Persaud claimed ignorance of the rules at his hearing. Mr. Persaud was fined $150 and suspended for the balance of the Fort Erie meeting as the Senior Steward's report for that day indicated (Ex.1, tab 7). On that same day, Ruling Number TB 5560/08 (Ex. I, tab 10) was issued confirming the Stewards' decision. The decision by the Stewards was in accordance with Fort Erie's track rules 41 b which thoroughbred Stewards can and do enforce under the rules of racing.
On September 17, 2008, the Director granted Mr. Persaud a stay (Ex. 1, tab 13) following his filing of his Notice of Appeal (Ex. 1, tab 11) and request for a stay (Ex.1, tab 12). The net result of this decision by the Director was that Mr. Persaud served eight days of what would have been a forty-nine day suspension.

Issues

Is there merit to Mr. Persaud's claim that he was not made aware of his third violation of the smoking rule at Fort Erie Racetrack's backstretch? Should the Panel impose a fine as per the note on the bottom of his Notice of Appeal dated September 14, 2008, which states the Commission has that right, if an applicant fails to appear at his/her hearing without good cause?

Decision

After carefully reviewing the testimony and evidence and reading the submissions, the Panel denies Mr. Persaud's appeal. In addition, nineteen days extra are to be added to his suspension for a total of sixty days. This suspension is to start with the commencement of the 2009 thoroughbred racing season in Ontario. Mr. Persaud is fined an additional $1,500 for a frivolous appeal.

Reasons for Decision

Two of the key mandates for the Ontario Racing Commission are the protection of the health and welfare of the horse and the protection of the safety of participants. Smoking in the backstretch is well recognized as a real threat to both of them with the dire consequences self evident from past tragedies. Therefore it is incumbent on this Commission to do all it can to both support no smoking initiatives in all stable areas in every racetrack in Ontario and to help deter such dangerous activity.
Mr. Persaud was caught smoking on two consecutive days, August 30 and 31, 2008, in the stable area at Fort Erie Racetrack. They were the second and third violations and as per the track rules, he was subject to being fined for the second one and trespassed for the third. The Stewards acted within the rules of racing in conducting a hearing and issuing a ruling in enforcing the track rules.
Mr. Persaud would have been aware of the rules related to smoking at the track. He would have been provided a copy of those rules, as are all licensees who work on the backstretch and therefore would know which areas were designated as no smoking. Any area adjacent to a barn was so included. The Panel accepts the testimony of Ms. Merry as to the distribution of the rules which would confirm awareness. It also accepts that a ticket was issued and served to Mr. Persaud. Her testimony was supported by the letter from her supervisor confirming he served Mr. Persaud with the ticket that she wrote.
Mr. Persaud's suspension is extended because he has demonstrated by way of his irresponsible behaviour a total disregard for the smoking regulations at the track. This is a very serious violation and warrants an increase in the penalty. His wanton disregard of the rules put at risk both the horses stabled there and his fellow licensees, some who live in those areas and all the others who work there.
Mr. Persaud exhibited a total disregard for the hearing process. He was offered the opportunity for an adjournment and chose not to take up the offer nor did he present himself at the hearing or have a representative appear on his behalf. The Commission went to considerable time and expense in preparing for the hearing which he requested. It is self-evident that Mr. Persaud's attitude and treatment towards the Commission was cavalier at best. The Commission under S. 11.8 is entitled to levy a fine for a frivolous appeal. Under the ORC regulation #1, the Commission is entitled to levy a fine of up to $1,500 for a frivolous appeal.