Michael Manders and Kelly Lester, 2010 CanLII 98964

COMMISSION HEARING TORONTO, ONTARIO – NOVEMBER 18, 2010

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

WHEREAS Standardbred licensees Michael Manders (“MANDERS”) (ORC licence # 1A5568) and Kelly Lester (“LESTER”) (ORC licence # W80058) appealed the separate Notices of Proposed Order to Revoke the Licences of MANDERS and LESTER, delivered on or about September 17, 2010.

AND WHEREAS on November 18, 2010, a Panel of the Ontario Racing Commission (“ORC”) consisting of Commissioner John Macdonald as Chair, Commissioner David Gorman and Commissioner Pam Frostad was convened to hear the matter;

AND WHEREAS on November 18, 2010, both MANDERS and LESTER failed to appear for the hearing despite being properly notified, and having a representative, Brian Tropea, in attendance;

AND WHEREAS Angela Holland appeared as counsel for the Administration and Brian Tropea appeared as a representative for both MANDERS and LESTER;

TAKE NOTICE that upon hearing submissions of counsel for the Administration and of Mr. Tropea, the hearing of November 18, 2010, has been adjourned until November 29, 2010, on consent and is peremptory;

AND TAKE FURTHER NOTICE that the Panel orders MANDERS and LESTER to collectively pay $1,000 in costs thrown away, with payment to be made prior to November 29, 2010.

The Transcript of the Panel’s Reasons for Decision is attached to this Ruling.

Dated at Toronto this 26^th^ day of November 2010.

John L. Blakney

Executive Director

IN THE MATTER OF THE APPEAL AND REQUEST FOR HEARING OF MICHAEL MANDERS and KELLY LESTER

Held Before:

J. Macdonald, Commissioner

These are the proceedings in the above-captioned matter held before The Ontario Racing Commission, Re: KELLY LESTER, taken before Toronto Court Reporters, Suite 1410, 65 Queen Street West, Toronto, Ontario, at 10 Carlson Street, Suite 400, Toronto, Ontario, on the 18th day of November, 2010.

Appearances:

Angela Holland, for the Ontario Racing Commission Administration

Brian Tropea, for the licensees Lester and Manders

THE SERGEANT AT ARMS: All rise, please.

MR. CHAIRMAN: Please be seated. This was intended to be a hearing under The Racing Commission Act. My name is John Macdonald, and the panel, to my left, is Pam Fostad and, to my right, David Gorman. Counsel, Angela Holland for The Ontario Racing Commission and Brian Tropea representing the duo of Michael Manders and Kelly Lester, and this is all in connection with a Proposed Notice of Order.

I gather, Counsel, that there are some problems in having the persons involved here.

MS. HOLLAND: Yes. Good morning, Mr. Chair. Unfortunately, neither Ms. Kelly Lester or Mr. Michael Manders are in attendance. We have checked the file, and they have been notified by mail, and we have also forwarded all of the information to their representative – to Mr. Tropea.

However, we have contacted Ms. Lester this morning by phone, and she has advised that she did not know about the hearing and neither did Mr. Manders, so we have agreed to adjourn the hearing until November 29th, and I have checked with everyone, including our witness, the panel, Mr. Tropea, and Mr. Tropea spoke with Ms. Lester and she advised that any date is agreeable to her and Mr. Manders.

So we are agreed to adjourn until November 29th, but I believe there needs to be some cost consequence to this, because we have Mr. Randy Pullen, our witness, in attendance today, and he attended from – I believe he resides in Sarnia, or close to it, so he has appearance fees, and also there are costs involved with the panel’s attendance as well, and preparation time.

I would also ask that the November 29th date be peremptory, meaning that if either Miss Lester or Mr. Manders are not in attendance on the 29th, then we will proceed in their absence.

THE CHAIRMAN: Mr. Tropea, are you prepared to ---

MR. TROPEA: I have no problem with the rescheduling for the 29th or the fact that you make it peremptory. I would be absolutely agreeable to that.

I’m kind of caught in the middle here, because I feel somewhat responsible, because I did get the factums and the books of documents and everything, and I had a discussion with Darla, who schedules the hearings.

My understanding was that she had contacted Miss Lester and Mr. Manders about the hearing date. I haven’t had any contact at all with Mr. Manders. It was through Miss Lester, when they first got the Notice of Proposed Order to Suspend, that she contacted me to see if I would be available to help them, and I said I did – or I would be. Since that time, I have had no discussions at all with Miss Lester, so perhaps I should have been the one that informed her of the hearing, and if it was my fault, I apologize for that.

THE CHAIRMAN: Thank you, sir, but my understanding is that the notices were sent out October the 12th and there was a problem with Miss Lester as far as moving, but she apparently moved, or from what I’ve been informed, on October the 16th, so she should have received the material prior to that date.

And if it went out, Mr. Manders hasn’t moved, so obviously they haven’t been talking to each other or something faulty there, but they should have been in touch with you as well.

MR. TROPEA: Yes, I would agree and I can’t comment on that. I would suggest that we could address that at the beginning of the hearing on the 29th and maybe figure out what did happen, but, like I say, I am not in a position to comment one way or another.

All I know is I talked to Miss Lester today, and she is sincere about being here and getting the thing dealt with. It didn’t appear that she was being evasive or anything, so, just at first blush, it appears to be some sort of a miscommunication, and, like I say, perhaps it’s my fault, but, regardless, they are not here today and, as I say, I am agreeable to the next hearing date being peremptory.

THE CHAIRMAN: Mr. Tropea, because of the costs thrown away, we can Order that the Appellants, Kelly Lester and Michael Manders, collectively pay $1,000.00 towards the cost, with the payment to be made prior to November 29th, and the 29th will be peremptory.

The difficulty of this is, in any adjournment, it’s like, you know, almost like a withdrawal to the extent that we are stuck with the costs. We have a new court reporter, which, welcome, you’re here, and, you know, that’s cost the panel and counsel.

Now, we have the material. The material will stay the same, unless there are other submissions where either you or the people you represent, Miss Lester and Mr. Manders, want to submit anything else.

Mr. Gorman, do you have any ---

MR. GORMAN: No questions, sir.

THE CHAIRMAN: Ms. Fostad?

MS. FOSTAD: No, thank you.

THE CHAIRMAN: Counsel?

MS. HOLLAND: No, sir.

THE CHAIRMAN: This matter will be peremptory for Monday morning, November 29th.

MS. HOLLAND: Thank you, sir.

MR. TROPEA: Thank you, sir.

THE SERGEANT AT ARMS: All rise.

This is to certify that the foregoing transcript was prepared from my notes and digital recordings to the best of my skills and abilities.

Susan Watt-Hannah, CVR