RULING NUMBER COM TB 004/2010

COMMISSION HEARING TORONTO, ONTARIO – OCTOBER 28, 2010

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

AND IN THE MATTER OF THE APPEAL AND REQUEST FOR HEARING BY

THOROUGHBRED LICENSEE MICHAEL MCMULLEN

Thoroughbred licensee Michael McMullen (“McMullen”) (ORC licence # 103184) appealed Ruling TB 6880/10, dated October 23, 2010, wherein he was suspended indefinitely for misuse of his crop in the stretch run of the eleventh race at Woodbine Racetrack on October 16, 2010, in violation of Rules 9.27.07(a) and 9.27.08(b)(e). The Stewards also immediately lifted the stay previously granted pursuant to TB Ruling ADMIN 80/2010.

On October 28, 2010, a Panel of the Ontario Racing Commission (“ORC”) consisting of Commissioner John Macdonald as Chair, was convened to hear the matter of lifting the previous stay.

Angela Holland appeared as counsel for the Administration; McMullen attended the hearing and was self represented.

Upon hearing the testimony of Senior Steward Richard Grub, Deputy Director Rob McKinney and Robbie King – National Manager of the Jockey’s Benefit Association of Canada and upon reviewing the exhibits, filed the Panel adjourned the hearing until November 18, 2010, and reinstated the stay until November 18, 2010, with the following condition:

In the event that McMullen commits a further urging violation between October 28, 2010, and November 18, 2010, he will be immediately suspended with the exception that he will be allowed to ride out his mounts for that day.

A transcript of the Panel’s Oral Decision is attached to this Ruling.

Dated at Toronto this 1^st^ day of November 2010.

BY ORDER OF THE COMMISSION

John L. Blakney

Executive Director

ONTARIO RACING COMMISSION

RE: THOROUGHBRED HEARING

IN THE MATTER OF AN APPEAL AND REQUEST FOR HEARING OF

MICHAEL MCMULLEN

Held Before:

John Macdonald, Chairman

This is an excerpt of a Hearing of the Ontario Racing Commission re: MICHAEL MCMULLEN, taken before Toronto Court Reporters, Suite 1410, 65 Queen Street West, Toronto, Ontario, at 10 Carlson Court, Suite 400, Toronto, Ontario, on the 28th day of October, 2010.

Appearances:

Angela Holland counsel for the Ontario Racing Commission Administration

Hearing continued ...

MR. CHAIRMAN: Okay. Do we need anything else on this?

MS. HOLLAND: I'm ready to proceed with my closing argument, sir.

MR. CHAIRMAN: Closing arguments?

MS. HOLLAND: Well, I guess maybe if I could just speak to - if we have a date of November 18th I could speak to our position on that.

MR. CHAIRMAN: If you could make it brief. We are just arguing about the stay.

MS. HOLLAND: Okay, sure. My understanding is that we now have a tentative date for November 18th.

MR. CHAIRMAN: As I say, yes, I would like to adjourn this. There is a panel sitting that morning and I could sit at 2:00 or even earlier if that's possible. That is November the 18th.

MR. MCMULLEN: And that is a?

MS. HOLLAND: And that's a Wednesday or Thursday?

MR. CHAIRMAN: I think that's a Wednesday.

MS. HOLLAND: Sir, it is actually a Thursday.

MR. CHAIRMAN: Thursday? I stand corrected again.

MS. HOLLAND: Now if we proceed with the hearing on Thursday November 18th the Administration's position is that no stay should be granted between today and November 18th in light of protection to the horse, Mr. McMullen's repeated urging violations; I don't want to go through a long list of everything but in the event that you do grant a stay between now and November 18th the Administration and the Stewards need clear instructions on what is to happen in the event that Mr. McMullen has a further urging violation during that period.

MR. CHAIRMAN: Mr. McMullen?

MR. MCMULLEN: Well, sir, under the circumstances of the suspension I realize that some places show some verbosity and others do not. My suspension is specifically in reference to me riding in the races; it is my understanding, in the Province of Ontario. You may have reciprocity and you may not however it keeps me from riding possibly anywhere else in North America even though in the final words of the ruling restricts only to Ontario. Nowhere else in North America do we have the parameter that we are put to in Ontario, elsewhere in North America. I can ride anywhere else in North America and have my hand from any height or whip, anywhere in North America and be ridden around the rules anywhere else. It is just in Ontario that I seem to be having some difficulty.

MR. CHAIRMAN: Mr. McMullen, we have no evidence before us what the rules are in other jurisdictions. We are dealing with Ontario.

MR. MCMULLEN: Yes, sir.

MR. CHAIRMAN: We are now talking about whether there should be a stay in the interim.

MR. MCMULLEN: I wish to submit that I fully would like to have a stay until the pending hearing.

MR. CHAIRMAN: Well, we will adjourn this matter until November the 18th when I would like to come to a conclusion at that time and I will grant you the stay. In view of all of the violations that you have had or that there already have been; we haven't seen the latest one, if there is any further violation then as soon as the Stewards make that decision then you will be suspended immediately. Now you have been given more than one chance here. You have had the opportunity to meet with the Deputy Director on three occasions, once I gather with the Executive Director and they have made some recommendations, some of which you have followed. You are objecting to the most recent one and I want you to think about it and consider whether or not you should on your own volition do something to help with the problem. The evidence was that you have a problem focusing on what the urging rule is and whether it is mechanical or not there have been too many violations already. We know that and Mr. King on your behalf indicated that it is the same problem that Mr. McKinney said, with your left hand. I can't tell you what to do except that if you don't follow the rules you will be suspended. So there will be a short stay until November the 18th and then we will deal with it at that time. Any further questions?

MS. HOLLAND: Just with respect with what you said, there would be an immediate suspension.

MR. CHAIRMAN: Immediate suspension if ‑‑

MS. HOLLAND: Does that mean he is allowed to ride out his mounts for that day?

MR. CHAIRMAN: Yes, he would be able to finish the mounts for that day. I'm concerned that this will drag on. I think that he is going to have to book off the other mounts in the same week if that happens. For the suspension to be effective it would have to be immediate that day, following the end of racing that day and I'm sorry, that's a good clarification.

MR. KING: We dealt with this issue, the definition of the term immediate.

MR. CHAIRMAN: Immediate means following the days racing.

MR. KING: But they were allowed to fulfil the engagements which they have engaged in for the 72 hours which would be the day of and most likely the following two days.

MR. CHAIRMAN: That's the suggestion I gather. That's not an Executive Direction so I'm going to change that slightly for this purpose because there has been so many violations. It will be the end of that day. This is for the suspension if it happens again. I'm just hoping that won't happen again, Mr. McMullen.

MR. KING: I'm just a little apprehensive about that because we are altering what the definition of the word immediate is.

MR. CHAIRMAN: I'm sorry, we are not altering it. I'm taking the liberty to alter that for this purpose.

MR. KING: Specifically for this case?

MR. CHAIRMAN: Specifically for this case. There has just been too many violations and you can see, Mr. King, if he violates it one day it could be two or three before they even get to him. I hope not and I won't expect that if Mr. McMullen has had the opportunity and given the chance to change. Any further questions?

MR. MCMULLEN: No, sir.

MS. HOLLAND: No, sir.

MR. CHAIRMAN: Thank you.

CERTIFIED CORRECT:_________________________________

RAYMOND P. MACDONALD, B.A., CVR

Commissioner of Oaths