Ontario

Racing

Commission

TB

RULING NUMBER COM TB 003(a)/2010

COMMISSION HEARING TORONTO, ONTARIO – MAY 12, 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 J. MCMULLEN

On October 27, 2009, the Stewards issued Thoroughbred Official Ruling TB 6272 wherein Michael J. McMullen (“McMullen”), was given the penalty of three racing days suspension and fined the sum of $500.00 for violation of Rules 9.27.07(a) and 9.27.08(a), (b) of the Rules of Thoroughbred Racing.

McMullen was penalized for raising his hand above the shoulder while urging his mount, “Indusun”, during the running of the ninth race on October 26, 2009 at Fort Erie Racetrack. This was a third offence for McMullen within a one-year period of his first offence.

On October 27, 2009, McMullen filed a Notice of Appeal, pursuant to Rule 13.17(b) of the Rules of Thoroughbred Racing.

On May 12, 2010, a Panel of the ORC, comprised of Commissioner John Macdonald, convened for the purpose of hearing this matter.

Steward Gunnar Lindberg appeared on behalf of the Administration of the ORC. McMullen attended the Hearing and was unrepresented.

After reviewing the evidence, hearing the testimony of Steward Bill McMahon, and upon considering the closing submissions, the Panel denied the appeal.

McMullen will therefore serve his three-day suspension at Fort Erie on May 23, 24 and 25, 2010, and his $500 fine will be payable on or before Friday May 30, 2010, in accordance with Rule 24.04 of the Rules of Thoroughbred Racing.

Commissioner John Macdonald cited McMullen for filing frivolous appeals and fined him a further $1,500 payable on or before Friday May 30, 2010, in accordance with Rule 24.04 of the Rules of Thoroughbred Racing.

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

DATED at Toronto this 14th day of May 2010.

BY ORDER OF THE COMMISSION

John L. Blakney

Executive Director

ONTARIO RACING COMMISSION

IN THE MATTER OF THE APPEAL AND REQUEST FOR HEARING

OF MICHAEL MCMULLEN

Held Before

John Macdonald, Chairman

This is an excerpt of the proceedings in the above mentioned matter held before The Ontario Racing Commission, taken before Toronto Court Reporters, Suite 1400, 65 Queen Street West, Toronto, Ontario, at 10 Carlson Court, Suite 400, Mississauga , Ontario, on the 12th day of May, 2010.

Appearances:

Gunnar Lindberg for the Ontario Racing Commission

Administration

Hearing Continued:

THE CHAIRMAN: I'm going to rule, the panel, both appeals be denied. The Stewards are quite clear; the video evidence was clear that you did in fact violate the Rules. I understand, Mr. McMullen, that you may not like the Rules and feel that they're not applied equally. That is not for you and I to decide. The Administration and the Stewards, judges, all make their decision that you were violating the Rules and you have violated the Rules. And I further find in this case that your appeals, in my opinion, are frivolous and in addition to the fines under the Rules, there's going to be another $1,500 fine for frivolous appeals. You should not have brought these appeals, in my view. Indications were that you had violated the Rules, knew the Rules, you may not have liked it but it was your violation and therefore we find the appeals here frivolous and that will cost you another $1,500.

Any further questions?

MR. McMULLEN: Application of both these infractions have day suspensions tied to them.

THE CHAIRMAN: We can't hear you; do you want to move…

MR. McMULLEN: Both these infractions carry a penalty and subsequently you can have suspensions along with them.

THE CHAIRMAN: Correct.

MR. McMULLEN: I just want to clarify that one entails a suspension and missing a day at Woodbine. The other entails a suspension of racing days at Fort Erie. Ijust want to clarify that that's the case.

THE CHAIRMAN: That's a good question. We have to clarify the dates as to what are the effective dates.

MR. LINDBERG: I'd have to look at that at this point in time. They would co-incide with the dates normally that would have been presented to him at the time and if I can look at my ruling, depending on whether they are -- this will only show dates. I would have to look at the actual days, but if it was a Wednesday, it would be a Wednesday, if it was a Saturday, it would be a Saturday, so Fort Erie does run Sundays, Mondays and Tuesdays so likely his three days would be a Sunday, Monday and Tuesday, depending on what the days were last year, okay. At Woodbine, whatever day that suspension was, a Thursday or a Friday -- it was a Wednesday, then it would be a Wednesday night that he would miss, so I would have to get that and I will clarify that with you.

MR. McMULLEN: So you're saying it has to be the specific day that the race occurred on?

MR. LINDBERG: That's correct, the day that you received it -- if it was a Wednesday, then you'll receive another Wednesday.

MR. McMULLEN: It fell on the first incident, it was an infraction on a Wednesday night and according to your calendar, I don't know when it was assigned the first date, I believe it was a Saturday and Sunday.

MR. LINDBERG: If today is -- today is Wednesday, the next Wednesday.

MR. McMULLEN: So a week from the day the infraction is assigned?

MR. LINDBERG: A week from today, that date of offence. It would be the 19th.

MR. McMULLEN: Thank you, gentlemen.

THE CHAIRMAN: This hearing is concluded.

I hereby certify the foregoing to be a true

and accurate transcript as taken by me

to the best of my skill and ability.

Maureen D. Hopkinson, CVR-CM,

Commissioner of Oaths.

My certificate expires:

June 4, 2013.