RULING NUMBER COM TB 003/2013

COMMISSION HEARING TORONTO, ONTARIO – JANUARY 16, 2013

IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c. 20;

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

THOROUGHBRED LICENSEE KATHLEEN PATTON

On November 16, 2011, counsel on behalf of Kathleen Patton (licence #105507, “PATTON”) requested that the Director of the Ontario Racing Commission (“ORC”) suspend the licence of another ORC licensee for exhibiting financial irresponsibility.

On November 22, 2011, counsel on behalf of the Administration of the ORC notified counsel on behalf of PATTON that the Director of the ORC declined to invoke Rule 4.01.05.2 of the Rules of Thoroughbred Racing.

On November 26, 2011, PATTON submitted a Notice of Appeal.

On December 7, 2012, counsel on behalf of PATTON notified counsel on behalf of the Administration of the ORC that PATTON wished to withdraw her appeal.

On January 16, 2012, a Panel of the ORC, comprised of Commissioner John Macdonald, was convened for the purpose of hearing the withdrawal of the appeal.

PATTON was accompanied by her counsel, Reginald McLean. Jennifer Friedman appeared on behalf of the Administration of the ORC.

Upon hearing the submissions of counsel, the Panel ordered the following:

a) The withdrawal of the appeal is allowed;

b) In accordance with Policy Directive No. 3-2010, PATTON shall pay costs to the Administration of the ORC in the amount of $2,124.20.

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

DATED at Toronto, Ontario this 29th day of January 2013.

BY ORDER OF THE COMMISSION ____________________________

Steven Lehman

Executive Director

ONTARIO RACING COMMISSION

THOROUGHBRED HEARING

IN THE MATTER OF AN APPEAL AND REQUEST FOR HEARING OF KATHLEEN PATTON

Held Before:

John Macdonald, Chairman

These are an excerpt of the proceedings in the above mentioned matter held before The Ontario Racing Commission, Re: KATHLEEN PATTON, taken before Toronto Court Reporters, Suite 1410, 65 Queen Street West, Toronto, Ontario, at 10 Carlson Court, Suite 400, Toronto, Ontario, on the 16th day of January, 2013.

Appearances:

Jennifer Friedman,

for the Ontario Racing Commission Administration

R.M. McLean, for the appellant Kathleen Patton

Hearing continued ...

MR. CHAIRMAN: Counsel for the Administration had asked one question and the only from my view because this is not a matter to be determined by a panel of anyone else but the way I read the statute for frivolous appeal there is a cap that is put on there and the amount is $1,500.00 so I don't see, and I'm dealing with the policy directive 3-2010, that one relates to the other. In my mind there is no determinative item with respect to those two amounts. They stand separately. One is by statute and the other one relates to the policy directive.

The difficulty I have here is while I understand Mr. McLean's position that yes, there was an arguable case and there is a question of matters relating to delay and the reasonableness of wanting to await a determination of the Court of Appeal as far as a decision and that would affect whether or not they would want to proceed to take the matter further involving the decision of the Executive Director not to apply the enforceability rules and particularly the rules that we are talking about would be under Thoroughbred Rules 4.01, .05, .02 where a licensee can be suspended for financial irresponsibility but I agree with counsel that notwithstanding Mr. McLean's position that it is fairly clear here the way I read it that it has to be involved in a matter relating to thoroughbred racing and it goes on to say in any of its forms. It is a stretch when it is a matrimonial matter. This panel and the Commission does not want to deal with that aspect of the litigation. I understand Mr. McLean's argument that there was an arguable case relating to this because we factor in the person who is not here Mr. Casse is a well known trainer and it be considered that the responsibility may be stretched to that to enforce that because it relates to the industry generally. However, I still feel that the policy directive, while not mandatory, does give guidelines as to its effect and what the Commission's obligations are for cost recovery, the results of which I feel the $1,500.00 requested for costs is not unreasonable to which I would add the disbursements that were filed in Exhibit 3 of another $624.20.

MR. MCLEAN: I'd just point one thing out, sir, and that is that that bill also included the cost of a transcript. I'm not sure that it could --

MR. CHAIRMAN: Yes, it did include the cost of a transcript which is a necessary cost that had to be incurred by the Commission. So that was not just the copying expenses but it was the transcript and this happens every date that there is a hearing where the transcripts would be an added cost. I do hear the argument that this is not an unusual thing to have something challenged but it is somewhat novel in the sense that it had not, to my knowledge, been before the Commission in any other form. Counsel has indicated that the Executive Director had not had any other cases that were known to go to an appeal process from the denial to enforce the rules for financial responsibility. Thank you. I have nothing further to add. Do counsel have anything other?

MR. MCLEAN: No, sir.

MR. CHAIRMAN: Now I will finish by saying that while there may be some elements of a frivolous appeal here that I don't think this was in the circumstances a frivolous appeal and therefore I would not order any costs relating to that. Thank you.

MS. FRIEDMAN: Thank you.

MR. MCLEAN: Thank you, sir.

CERTIFIED CORRECT__________________________________

RAYMOND P. MACDONALD, B.A., CVR

Commissioner of Oaths