Ontario

Racing

Commission

RULING NUMBER COM SB 029/2012

COMMISSION HEARING TORONTO, ONTARIO – JULY 23, 2012

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 DOUGLAS MCNAIR

On March 28, 2012, the Administration of the Ontario Racing Commission issued Standardbred Official Ruling SB 33/2012 wherein Doug McNair (McNair) was given the penalty of a 10-day driving suspension with 3 days stayed and two years probation for failing to attend a hearing on February 22, 2012, pursuant to a Summons to a Witness and Rule 24.03 of the Rules of Standardbred Racing.

On March 26, 2012, McNair filed a Notice of Appeal, pursuant to Rule 24.01(b) of the Rules of Standardbred Racing.

On July 23, 2012, a Panel of the Ontario Racing Commission (ORC), comprised of Commissioner John Macdonald, convened for the purpose of hearing this matter.

Neil McCoag appeared on behalf of the Administration of the ORC. McNair attended the Hearing and was represented by Evan Weber.

After reviewing the evidence, hearing the testimony of Deputy Director Rob McKinney, driver Anthony Macdonald and McNair, and upon considering the closing submissions, the Panel denied the appeal but modified the penalty to a $500 fine, 8 days driving suspension (with 3 days stayed) and two years probation from August 3, 2012 to August 3, 2014. McNair will serve his days from July 29 to August 02, 2012 inclusive.

Take notice that should McNair fail to attend a hearing in accordance with a “Summons to Witness” while on probation, the stay shall immediately expire and he shall be immediately suspended from driving for 3 days and referred to the Director.

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

DATED at Toronto this 31^st day of July 2012.

BY ORDER OF THE COMMISSION

John L. Blakney

Executive Director

ONTARIO RACING COMMISSION

STANDARDBRED HEARING

IN THE MATTER THE APPEAL AND REQUEST FOR HEARING OF

DOUG MCNAIR

Held Before:

John Macdonald, Commissioner

These are an excerpt of the proceedings in the above mentioned matter held before The Ontario Racing Commission, Re: DOUG MCNAIR, taken before Toronto Court Reporters, Suite 1410, 65 Queen Street West, Toronto, Ontario, at 10 Carlson Court, Suite 400, Toronto, Ontario, on the 23rd day of July, 2012.

Appearances:

Neil McCoag agent for the Ontario Racing Commission Administration

Evan Weber. for the licensee Doug McNair

Hearing continued ...

MR. CHAIRMAN: Thank you gentlemen. The first offence was three days and a thousand dollar fine and that's sort of been the pattern that has been established. Obviously it has been enough of a deterrent that the Deputy Director hasn't had any hearings for a second offence and we would like to keep it that way. Counsel referred to the Criminal Code Section 7.18 and it talks about fundamental purposes and though that's the Criminal Code but sentencing refers to contributing along with obviously crime prevention. With respect to Criminal law and we are just paraphrasing here, just, peaceful and safe society and imposes specific sanctions. In our situation, the efforts have been made here to make sure that hearings are conducted with all available evidence and in the particular hearing where Mr. McNair didn't show was one where he was summonsed as a witness. He acknowledges the receipt of the summons and obviously the Administration considered his evidence was something that was required for that hearing. I'm concerned that Mr. McNair made no effort to advise the Commission prior to the hearing that he may have had another conflict. It could easily have been explained to him that he would just have to, as you just indicated, counsel, he would have to prioritize which comes first. Mr. MacDonald was able to arrange his affairs such that he was able to attend the hearing, the meeting of the IM group and still make it to the rally. Everyone in the industry knows about the rally and there were a number of people there and a number of other drivers were there. So no offence to Mr. McNair but others could have been found and some to do sort of the same thing he did. The penalty proposed by the Deputy Director was 10 days and a thousand dollar fine. Now counsel indicated that 10 days is serious and it is but the Deputy Director stayed three of those days. It was basically a 7 day suspension. Now, yes, if probation is violated in the next two years those 3 days would kick in there then as well as any other penalty that would go along with a third offence, which we would hope would never happen. I'm concerned, and the Deputy Director gave his opinion based on the apparent casual treatment of the applicant through other offenses but that's not what we are here for. All drivers, with respect, will make mistakes and in their own interest and they may decide depending on who the owner and trainer is at a certain track and they may get another opportunity and they jump. The fine is not large not favouring the B track to go to the show. It is unfair to the fans, the owners and the trainers, including drivers, if you are down to drive and book somewhere else. That is a different problem and we are not here to deal with that. This is a failure to reply to a summons. My concern here is that there was no attempt before or after by the applicant to provide some valid reason, and I'm not saying that the rally is not important but in the scheme of things it should have been second place and we already have one witness here today who did manage to make the hearing that day and still make it to the rally and there were a lot of people at the rally. We couldn't get everybody there but anyway, I do understand how important that is but I have to also look at the return factor in having counsel, having the Deputy Director indicate the different levels of deterrents. That's a difficult decision and I find it difficult as well. Since we don't expect to happen again it is the first one I'm concerned with in trying to come to a balance is what the industry will see and what the reaction might be. So I am going to help the applicant to the extent that I will vary the suspension days. I won't change the fine and I won't change ‑‑

MR. MCCOAG: Excuse me, sir, there was no fine.

MR. CHAIRMAN: I thought there was a thousand dollar fine.

MR. MCCOAG: No, that was on the first offence. There was no fine on this second one.

MR. CHAIRMAN: Okay, I misunderstood that. All right, thank you. In that case I will change slightly what I was starting to say. The fine obviously the first time either didn't sink in or whatever but I will change the suspension to 8 days instead of the 10. I'm going to throw in a $500.00 fine and I'm going to continue having the original two year probation and on top of that the Deputy Director did stay 3 of those days. So continuing with the stay of those three days that effectively means we have a 5 day suspension with probation. Any questions?

MR. MCCOAG: So as I understand it, it's an 8 day suspension with 3 days stayed and a $500.00 fine and two year probation?

MR. CHAIRMAN: Correct.

MR. MCCOAG: Do you wish us to establish the days here now?

MR. CHAIRMAN: Well, that would be useful and save time.

MR. MCCOAG: When do you come in next?

MR. MCNAIR: Well, I guess next Sunday to Thursday.

MR. MCCOAG: Starting next Sunday.

MR. CHAIRMAN: We can continue without the court reporter.

(DISCUSSION OFF THE RECORD)

MR. MCCOAG: So we would be starting July 29th to August 7th. Thank you, sir.

CERTIFIED CORRECT________________________________

RAYMOND P. MACDONALD, B.A., CVR

Commissioner of Oaths