Christopher Beaver v. Ontario Racing Commission, 2011 CanLII 98253

RULING NUMBER COM SB 047/2011

COMMISSION HEARING TORONTO, ONTARIO – SEPTEMBER 20, 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 LICENSEE CHRISTOPHER BEAVER

Christopher Beaver (“Beaver”) appealed against Standardbred Official Ruling SB 43734 wherein his horse, Honey Thorn, was declared ineligible and disqualified from the race as a consequence of failing to pay the starting fee within the prescribed period in accordance with Rule 16.11 of the Rules of Standardbred Racing.

On September 20, 2011, a Panel of the Ontario Racing Commission consisting of Chair Rod Seiling was convened to hear this matter.

Anthony MacDonald (“MacDonald”) acted as representative of Honey Thorn in the capacity of “friend”. Ian Downey (“Downey”) appeared on his own behalf. Jennifer Friedman appeared as counsel for the Administration.

Upon hearing the testimony of Race Secretary Diane Twasnick, Paddock Judge Bill Clements and ORC Senior Judge Pete Gillies, and upon hearing the submissions of Friedman, Downey and MacDonald, the Panel allowed the appeal as follows:

1. Honey Thorn is restored to its original order of finish on September 2, 2011;
2. Mr. Lang is hereby ordered to pay to the Commission $139.25 for costs incurred.

The transcript with the Panel’s Reasons for Decision is attached to this Ruling.

DATED at Toronto this 27^th day of September 2011.

BY ORDER OF THE COMMISSION __________________________________

John L. Blakney

Executive Director

REASONS FOR DECISION

Overview

1. Standardbred Licensee, Christopher Beaver, appealed SB Ruling No. 43734 wherein the horse, Honey Thorn was disqualified from its winning race at Grand River Raceway on September 2, 2011, in a division of the Ontario Sires Stakes (OSS) Grass Roots for not paying the required starting fee as stipulated in SB Rule No. 16.11, 30 minutes prior to the post time of the race. An oral decision was rendered upholding the appeal and ordering Mr. Lang to pay $139.25 for costs incurred preparing for the hearing with written reasons to follow. These are those reasons.

Background

2. On September 2, 2011, Grand River Raceway hosted the OSS Grass Roots 3-Year Old Filly Trot.

3. The horse, Honey Thorn, was entered and drawn in to race #4. Under SB Rule No. 16.11, the connections of Honey Thorn were required to pay the starting fee for the race at least 30 minutes before the scheduled post time.

4. Jennifer Friedman, legal counsel for the Ontario Racing Commission (ORC), and Wilbur Lang, owner of the horse, submitted an agreed statement of fact (Ex. 8) that acknowledged that the starting fee was paid less than 30 minutes prior to the race. According to Anthony MacDonald who represented the appellant, Mr. Beaver as a friend, it was a mistake by the groom who had the money but was busy and did not get it in on time.

5. Grand River Raceway Racing Secretary, Diane Twasnick, testified that she contacted the ORC Judges about 7.35 p.m. to inform them that the starting fee for Honey Thorn was outstanding and could they contact the Paddock Judge to inform him as she was having trouble making contact.

6. Ms. Twasnick testified that she had posted in her office that SB Rule No 16.11 required that the starting fee must be paid 30 minutes prior to the race but was unaware of the scratch provision for failure to comply.

7. Paddock Judge, Bill Clements, confirmed that he received notice from the Judges about 7:35 p.m. re notification of the starting fee for Honey Thorn still outstanding and that he did communicate that message to the horse’s connections in the paddock. He was unaware of when the fee was paid and stated it was not his job to collect fees or scratch horses.

8. ORC Senior Judge, Peter Gillies, officiated at Grand River on September 2, 2011. He confirmed that the Judges did receive a call from Ms. Twasnick after race #2 which would be about 7:30 p.m. to 7:35.p.m. but never heard from her or any other person regarding the staring fee not being paid on time.

9. The first time he heard about the late starting fee payment was the next day when he was contacted by another ORC Judge, Chuck Fraleigh, who had been contacted at Flamboro Downs. Judge Gillies testified as did both Ms. Twasnick and Mr. Clements that they could not recall a horse being scratched for late payment of a starting fee.

10. Mr. MacDonald referenced Exhibit #5 which contained 32 signed statements from ORC licensees including Mr. MacDonald, himself, confirming they had all at one time or another submitted their starting fee under the 30 minutes as required by SB Rule No. 16.11 and were not scratched. Mr. Downey, who represented himself, and finished second in the race with his horse, Defy Time, submitted that this was hearsay evidence. The Chair reminded the parties that under the Rules of Procedure for the ORC, it can hear hearsay evidence.

11. Mr. Downey, after communicating with the Judges, lodged a protest as he was advised of his right by Mr. Gillies. He confirmed he was aware of the breach of the rule prior to the race but stated on being asked if there was an onus on him as a licensee to communicate such fact to the Judges that “it was not his job”.

12. Following the normal due process procedures, the Judges held a hearing on September 9, 2011; therein they issued SB Ruling No. 43734 which resulted in Honey Thorn being disqualified for breaching SB Rule No. 16.11.

Issue

13. Did the Judges correctly apply the Rules of Racing or were there mitigating circumstances?

Reasons for Decision

14. The onus for paying starting fees clearly rests with the connections of a horse properly entered in to a stakes race as outlined in SB Rule No. 16.11. The onus for the collection of the starting fee clearly resides with the hosting track.

15. The track has a corresponding responsibility to inform the Judges if there is a breach of that Rule. Upon such notification, the Judges can then invoke the penalty provisions under SB No. 16.11. When such notification is not made, as was the case in this appeal, there can be no Rule violation and once the race is run, the track has assumed the liability for the starting fee.

16. Neither Race Secretary Twasnick nor Paddock Judge Clements told the Judges of the rule breach despite at least one being aware by their own admission and the other citing “too busy” and both knowing of the potential problem via their contact with the Judges 35 minutes prior to the post time of race #4. With no notification by the track to the Judges at the 30-minute time period, Rule 16.11 would not be triggered.

17. The Panel agrees with the submissions that Rules of Racing as promulgated in the Rule Book (SB No. 1.01) must be enforced. To that extent, the Judges had to be notified 30 minutes in advance of the race by the track of the Rule breach which they failed to do.

18. “Be sure your hands are clean” is a well known truism and aptly applies to Mr. Downey with respect to his protest. Mr. Downey, with his own acknowledged awareness of the rule breach, could have lodged his protest in advance of the race and chose not to act claiming “it was not his job”. Under SB Rule No. 3.09.01 (sportsmanship), Mr. Downey had an obligation to notify either the track officials or the ORC Judges directly.

19. Horse racing needs to be both seen and perceived as “above board”. It is the lifeblood of racing. Participants should not think that they do not have an integral role in the integrity of their sport and business. It is the job of every licensee notwithstanding, Mr. Downey’s response.

20. Information related to the hearsay evidence of horses being allowed to race that had not paid their respective starting fee according to SB No. 16.11 is irrelevant. In each case, the respective track assumed the liability for the respective starting fee. Again, in each case, had the Judges been notified, they would have been compelled to act according to SB Rule No. 16.11.

21. One must also take into account SB Rule No. 1.09 that reads, “If any case occurs which is not or which is alleged not to be provided for by the rules, it shall be determined by the Judges or the Commission as the case may be, in such manner as they think is in the best interest of racing. Provided however, the Commission in its absolute discretion may waive the breach of any of the rules, which waiver or breach the Commission does not consider prejudicial to the best interests of racing.” In this case it is reasonable to conclude that once the race went it is in the public interest to allow the race to stand. Therefore with no Rule infractions of any kind, it was a fair race and the mutuel pay outs were based on that result. While one should not have an issue solely resolved on the “public interest” we should not forget that without the public there is no business.

DATED this 27^th day of September 2011.

Rod Seiling

Chair

ONTARIO RACING COMMISSION

STANDARDBRED HEARING

IN THE MATTER OF THE APPEAL AND REQUEST FOR HEARING OF CHRISTOPHER BEAVER

Held Before:

Rod Seiling, Chairman

These are an excerpt of the proceedings in the above mentioned matter held before The Ontario Racing Commission, Re: CHRISTOPHER BEAVER, taken before Toronto Court Reporters, Suite 1410, 65 Queen Street West, Toronto, Ontario, at 10 Carlson Court, Suite 400, Toronto, Ontario, on the 20th day of September, 2011.

Appearances:

Jennifer Friedman,

for the Ontario Racing Commission Administration

Hearing continued ...

MR. CHAIRMAN: All rise. Please be seated. After carefully listening to the testimony and reviewing the submissions and documents filed the appeal is upheld. HONEY THORN is restored to her original order of finish on September 2, 2011 restoring the following horses to their original order of finish. Mr. Lang is hereby ordered to pay to the Commission $139.25 for costs incurred. Written reasons will follow.

MR. BEAVER: Thank you.

CERTIFIED CORRECT_________________________________

RAYMOND P. MACDONALD, B.A., CVR

Commissioner of Oaths