Elizabeth Thompson and James Barton v. Ontario Racing Commission, 2011 CanLII 98206

RULING NUMBER COM SB 026/2011

COMMISSION HEARING TORONTO, ONTARIO – MAY 11, 2011

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

STANDARDBRED LICENSEES ELIZABETH THOMPSON AND JAMES BARTON

Standardbred licensees, Elizabeth Thompson (“Thompson”), owner, Licence No. W21219 and James Barton (“Barton”), driver/trainer/owner, Licence No 0334V9, filed an Appeal and requested a Hearing against, inter alia,

(i) The decision of the track judges on September 8, 2007 at Woodstock Raceway to find Barton in violation of Standardbred Rule 3.09.01(c), (no written contract), as trainer for the horse Sound Relation and to impose a fine of $200, and

(ii) The decision of John L. Blakney (“Blakney”), Executive Director of the Ontario Racing Commission (“ORC”), on September 1, 2010, that no further proceedings are appropriate against the decision of Bruce Murray (“Murray”), Vice President of Standardbred Racing at Woodbine Entertainment Group (“WEG”) to exclude the horse Fans Phantom from a September 7, 2007 race at Mohawk Raceway.

On Wednesday, May 11, 2011, a Panel of the ORC consisting of Chair Rod Seiling was convened to hear this matter.

Thompson was unrepresented.

James Whelan (“Whelan”) provided assistance to Thompson.

Barton was not in attendance at the Hearing.

Anthony Williams (“Williams”) appeared as counsel for the Administration.

On hearing the evidence of Charles Beirnes, Investigator, and of Charles Fraleigh, Senior Standardbred Judge, and upon reading the exhibits filed, and upon hearing the submissions of

Thompson, Whelan and counsel for the Administration, the Commission found as follows:

The Appeal is dismissed.

DATED this 18^th^ day of May 2011.

BY ORDER OF THE COMMISSION

Steven Lehman

Acting Executive Director

REASONS FOR DECISION

Overview

1. Dr. Elizabeth Thompson requested a hearing before a Panel of the Ontario Racing Commission (ORC) (Ex. 1, tab 25). In the interests of fairness and transparency, it was agreed to grant her request given that in addition to a number of meetings with ORC officials including the Director she had written at least six letters to the ORC raising her ongoing concerns. The hearing was held on May 12, 2011.

Background

2. Anthony Williams, legal counsel for the ORC, was not challenged in his opening remarks when he categorically stated that there was no basis for an appeal in three of the four reasons listed in her request for a hearing. (Ex. 1, tab 25, p.76). The basis for his statement was SB Rule No. 24.03. Those three listed reasons were as follows:

3. “If our concerns had truly been ‘carefully considered’ it would have been obvious that our horse was never scratched. Our concern was — why had our entries in general been rejected for almost two weeks by WEG?”

4. “Mr. Blakney had agreed to this investigation despite there not having been a hearing in 2007. Why did this investigation last from Feb. 2009 to Sept. 2010?”

5. “We had requested a meeting with Bruce Murray to explain his actions. We were never granted this meeting and never received any documentation after he was interviewed by Mr. Charlie Beirnes.”

6. Regarding the fourth reason listed for the appeal, Mr. Williams stated that there was no merit to it, and even if there were, it was too late to proceed (six and ½ months), therefore the appeal should be dismissed. During the course of the hearing, Mr. Jim Whelan, who was assisting the self-represented Dr. Thompson, acknowledged the ORC timelines for filing an appeal were limited to forty-eight hours on receipt of notice with a further eight days allowed to submit it in writing. The fourth reason listed by Dr. Thompson was as follows:

“In the Small Claims Court in which we had to resort to be paid by these two owners who were not ORC listed, the Judge ruled that a contract did exist and the two owners had to pay us for services rendered plus interest. We strongly disagree with the ORC ruling re no contract as did the Judge in a court of law.”

4. Dr. Thompson, stated that she was looking for closure to what had been a very frustrating affair for her and her husband, James Barton, who is a licensed trainer with the ORC.

5. With the assistance of the Chair, Dr. Thompson agreed that the actual basis of her appeal came down to two issues. They were as follows:

6. The $200 fine for her husband; and

7. Why no action was taken against Bruce Murray?

8. On October 17, 2005, James Barton and Dr. Thompson along with Michael and Carmen Dillon purchased a horse, Sound Relation, at the Forest City Sale. Unfortunately, the horse did not make it to the races.

9. The Dillons paid their share of the costs from the purchase date to January of 2007. In February of that year they stopped paying and alleged a number of reasons for doing so. ORC investigator, Charles Beirnes, conducted an investigation to deal with the Thompson/Barton and Dillon dispute. That investigation included an interview with Thompson/Barton. His report (Ex.1, tab 2) confirmed that the allegations such as unsafe conditions to be false but he did report that Mr. Barton admitted that he did not have a written contract with the Dillons for the horse, Sound Relation, as required by SB Rule No. 3.09.01 (c). This rule, which Dr. Thompson admitted came into force in 2002 and, not recently as she submitted, requires a trainer to have a written contract covering his/her services and the remuneration to be paid (terms).

10. Subsequently, on being notified of the rule violation, the ORC Judges held a hearing with Mr. Barton and Dr. Thompson on September 6, 2007. Following the hearing, the Judges issued SB Ruling No. 36855 on September 8, 2007 (Ex. 1, tab 4) wherein he was fined $200 for violating SB Rule No. 3.09.01 (c) for not having a written contract for the horse, Sound Relation.. Mr. Barton paid the fine on September 9, 2007; he did not appeal the ruling, nor did he request a stay as were his options under the Rules of Racing (Chapter 24). The reason submitted for not exercising his rights was that Mr. Barton wanted to be able to race his horses right away and that they were not aware of their options under the rules just as they were not aware of the rule requiring a written contract.

11. The September 6, 2007 hearing with the Judges was to have occurred on September 4, two days earlier. The