Ontario
Racing
Commission
TB
RULING NUMBER COM SB 043/2009
COMMISSION HEARING TORONTO, ONTARIO – DECEMBER 30, 2009
IN THE MATTER OF THE RACING COMMISSION ACT S.O. 2000, c.20;
AND IN THE MATTER IN THE APPEAL AND REQUEST FOR HEARING OF
DOUGLAS McNAIR
Douglas R. McNair (“McNAIR”) is licensed (licence #Y23971) with the Ontario Racing Commission (“ORC”) as a Driver/Trainer/Owner.
On August 16, 2009, McNAIR drove the horse, OK COMMANDER, in the 6th race at Mohawk Racetrack.
On August 30, 2009, the Judges held a Hearing and Videotape Review with McNAIR.
On August 30, 2009, the Judges at Mohawk Racetrack issued Standardbred Official Ruling SB 40125 wherein McNAIR was fined $500 and subject to a five-day driving suspension (September 2-6, 2009 inclusive). The reasons given for the penalty were:
Fifth offence in 2009
Violation of ORC Rule 22.22
While Driving ‘OK Commander’ in Race 6 at Mohawk Racetrack on August 16/09,
did use his whip in an indiscriminate manner during the stretch drive.
On September 7, 2009, McNAIR filed his Notice of Appeal.
On September 8, 2009, the Executive Director issued Ruling Number SB 135/2009 wherein MCNAIR was granted a stay of his penalties until such time as his appeal is heard.
On December 30, 2009, a Panel of the ORC, comprised of Chair Rod Seiling, was convened to hear the appeal.
Jennifer Friedman appeared as counsel for the Administration. McNAIR was not in attendance. The Panel elected to proceed in McNAIR’s absence pursuant to Rule 4.6 of the Rules of Procedure of the Panel of the ORC.
Upon hearing the testimony of ORC Judge Rick Rier, reviewing the exhibits filed, including the film of the race, and upon considering the closing submissions of the Administration, the Panel denied the appeal as follows:
i) The penalty is varied from a 5-day suspension and $500 fine to a 7-day suspension and a $1,000 fine;
ii) McNAIR is assessed a $1,500 fine for a frivolous appeal.
The transcript with the Panel’s Oral Decision is attached to this Ruling.
DATED at Toronto this 4th day of January 2010.
BY ORDER OF THE COMMISSION
John L. Blakney
Executive Director
ONTARIO RACING COMMISSION
STANDARDBRED HEARING
IN THE MATTER OF THE APPEAL AND REQUEST FOR HEARING OF DOUGLAS MCNAIR,
Held Before:
Rod Seiling, Chairman
These are an excerpt of the proceedings in the above mentioned matter held before The Ontario Racing Commission, Re: DOUGLAS MCNAIR, taken before Toronto Court Reporters, Suite 1410, 65 Queen Street West, Toronto, Ontario, at 10 Carlson Court, Suite 400, Toronto, Ontario, on the 30th day of December, 2009.
Appearances:
Jennifer Friedman, for the Ontario Racing Commission Administration
Hearing continued ...
MR. CHAIRMAN: All rise. Please be seated. After carefully reviewing the testimony, the evidence and documents, Mr. McNair's appeal is denied and the penalty is varied. The suspension is now set at seven days from five days and his fine is set at $1,000.00. Furthermore, Mr. McNair is assessed a $1,500.00 fine for a frivolous appeal.
Mr. McNair did not attend his hearing but it proceeded in his absence under Section 4.6 of Ontario Racing Commission Rules of Procedure Mr. McNair called the ORC's head office at 10:15 p.m. on December 29th, 2009, just hours before the scheduled appeal was to be heard. Mr. McNair, based upon his recent withdrawal of his appeal of Standardbred Ruling number 40879 is aware of the proper procedures and process related to withdrawing an appeal. The evidence clearly indicates that Mr. McNair received four separate notices of the date for his appeal, the first being on October 13th, 2009. He was also advised to contact Ms. Friedman if he had any issues relating to his appeal or the documentation provided to him by the ORC related to his hearing. He never contacted her. The facts are clear, Mr. McNair breached Standardbred Rule 22.22, indiscriminate use of the whip. The film clearly shows Mr. McNair place his whip between the rear legs of the horse OK COMMANDER during the stretch run of the 6th race at Mohawk on August 16, 2009. Judge Reir testified that Mr. McNair admitted the breach to them when they reviewed the film with him and he still filed an appeal stating he disagreed with the Judges' decision. Mr. McNair has had eleven whipping violations in 17 months. Clearly the deterrent factor of his past penalties have been insufficient in deterring him from willfully breaching the rules in this regard. The Commission is delegated to protect the health and welfare of the horse therefore an increase in both the suspension and the fine is warranted.
Mr. McNair's conduct, in respect to the due process system as so enshrined to protect the rights of all licensees, is despicable. This Commission recognizes and goes to great lengths to ensure licensees have their rights of due process upheld. Licensees have responsibility not to abuse that right. This means that in filing an appeal a licensee must bring new relevant evidence or demonstrate the Judges have made an error in their decision. Mr. McNair did neither. Adding insult was his cavalier approach to calling the Commission long after business hours and leaving a voicemail indicating he was abandoning his appeal just before it was to start. Thousands of dollars had already been expended on his appeal by that time. Mr. McNair was well within his right to withdraw his appeal. The time was well before December 29, 2009 at 10:15 p.m. for the December 30th, 2009 hearing scheduled to start at 9:00 a.m. Thank you. I don't think there are any questions. It's pretty straight forward.
CERTIFIED CORRECT:____________________________
RAYMOND P. MACDONALD, B.A., CVR
Commissioner of Oaths