RULING NUMBER COM TB 005/2013

COMMISSION HEARING TORONTO, ONTARIO – APRIL 24, 2013

NOTICE OF DECISION

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

AND IN THE MATTER OF THE ROBERT R. BERTRAND APPEAL

Robert R. Bertrand appealed against Ruling Number TB ADMIN 5/2013

Date of Hearing: April 24, 2013

ORC Panel Members: Vice Chair Anthony Williams

Counsel for Appellant: Daniel McMahon

Counsel for the Administration: Jennifer Friedman

The Panel denied the appeal.

The Panel’s Reasons for Decision is attached to this Notice.

DATED at Toronto this 23rd day of May 2013.

Steven Lehman

Executive Director

REASONS FOR DECISION

Background

1. Robert R. Bertrand (“Bertrand”) was licensed by the Ontario Racing Commission (“ORC”), licence # 114494, for 49 years, in a variety of categories, including exercise boy (exercise person as of 1983); jockey valet; authorized agent; paddock judge; horse identifier and, more recently, clerk of the scales (“C of S”), during his employment with the Woodbine Entertainment Group (“WEG”), formerly the Ontario Jockey Club (“OJC”).

2. Bertrand was classified as a Racing “Official”, the C of S, pursuant to Rule 2.33 of the Rules of Thoroughbred Racing (“TB Rules”). His most recent licence was valid until March 1, 2013.

3. On October 6, 2012, Pamela Bray (“Bray”), Investigator, ORC, began an investigation in connection with “purported misconduct” by Bertrand. (Factum of the Administration of the ORC, (“Factum”), Ex. 2, Part 1: Brief Summary of Relevant Facts, page 1, para 2)

4. Bray interviewed Bertrand on four occasions:

October 6, 2012, October 24, 2012, November 8, 2012 and November 25, 2012.

5. Bray served Document Production Requests on WEG on both December 7, 2012 and December 19, 2012, pursuant to section 18 (4) of the Racing Commission Act (“RCA”) and Rules 15.29 and 15.30 of the TB Rules.

6. On February 13, 2013, Detective Constable Brian Arrand (“Arrand”), of the Ontario Provincial Police (“OPP”), was assigned to continue this investigation, by his supervisor, Jeremy Locke, Manager of Regulatory Investigations for the ORC.

7. On March 1, 2013, Bertrand’s 2012 licence expired.

8. On March 6, 2013, the Deputy Director (“DD”) of the ORC, issued a letter to Bertrand, which stated:

(i) “Should you make application for a licence as an Association Official, your licence will not be approved pending the outcome of an investigation into your official duties as the Clerk of the Scales.”

(ii) “The decision to refuse to approve your licence may be appealed pursuant to subsection 11 (7) of the Racing Commission Act, 2000.” (Book of Documents, Ex. 1, tab 8, page 134)

9. Bertrand did not appeal the March 6, 2013 decision.

10. On March 13, 2013, Arrand served three further Document Production Requests on WEG, the requested return date, March 23, 2013.

11. On March 20, 2013, Arrand met with both Bertrand and his counsel at the TB offices of WEG.

12. On advice of counsel, Bertrand refused to provide a statement to Arrand.

13. On April 10, 2013, the DD issued a Thoroughbred Ruling which stated:

“…AND WHEREAS Bertrand was contacted by an ORC investigator;

AND WHEREAS Bertrand refused to provide requested documents or a statement;

TAKE NOTICE that Bertrand is ineligible to be licensed as an Association Official until he responds to an ORC investigator, pursuant to subsection 18 (1) and 18 (4) of the Racing Commission Act.” (underlining added) (Ruling Number TB ADMIN 5/2013, Ex. 1, tab 10, page 11)

14. On April 11, 2013, Arrand served a reminder letter upon WEG in connection with the outstanding document requests.

15. On April 11, 2013, counsel for Bertrand advised of his intention to file a Notice of Appeal against the April 10, 2013 Ruling. (Book of Documents, Ex. 1, tab 10, page 192)

16. On April 13, WEG replied to the document requests.

17. On April 15, 2013, a Notice of Appeal was filed. (Book of Documents, Ex. 1, tab 10, pages 196-197)

18. On April 24, 2013, a panel of the ORC consisting of Vice Chair Anthony Williams (“Williams”) was convened to hear the Appeal.

19. Jennifer Friedman (“Friedman”) appeared as counsel for the ORC.

20. Daniel McMahon (“McMahon”) appeared as counsel for Bertrand.

The Statute

21. (i) Racing Commission Act, s.o. 2000, c. 20

Section 6

“The Commission shall exercise its powers and perform its duties in the public interest and in accordance with the principles of honesty and integrity, and social responsibility.”

Section 7

“The Commission has power:

(a) to govern, direct, control and regulate horse racing in Ontario in any or all of its forms;

(b) to govern, control and regulate the operation of race tracks in Ontario at which any form of horse racing is carried on;...

(d) to license owners, trainers, drivers, jockeys, apprentice jockeys, grooms, jockeys’ agents, jockeys’ valets, exercise riders, tradespersons and those other persons in or about race tracks, at which horse racing in any of its forms is carried on, and to impose those terms on a licence that the Commission considers expedient;”

“(h) to require approval by the Commission for the appointment of race track officials and employees whose duties relate to the actual running of horse races and to compel the discharge for cause of any of those officials and employees;….”

Section 17

An application for a licence or the renewal of a licence must be made to the Director and must be in the form and contain the information, including information relating to personal identification, that the Director determines or the regulations or the rules prescribe.

Section 18(1)

The Director may make those inquiries and conduct those investigations into the character, financial history and competence of an applicant for a licence or the renewal of a licence that are necessary to determine whether the applicant meets the requirements of this Act and the regulations.

Section 18(4)

The Director may require information or material from any person who is the subject of the inquiries or investigations and may request information or material from any person who the Director has reason to believe can provide information or material relevant to the inquiries or investigations.” (underlining added) (ORC Factum, Ex. 1, pages 4-5)

The Rules

22. (ii) Rules of Thoroughbred Racing

“Rule 1.01.01.1

These rules apply to all thoroughbred tracks under the Commission jurisdiction.

Rule 1.05

Ignorance of the Rules will not be accepted as an excuse for their violation.

Chapter 2, Definitions

Officials The following categories shall be considered Racing Officials:

4. Clerk of the Scales

5. Assistant Clerk of the Scales” (ORC Factum, Ex. 1, page 6)

“Safety Sensitive Position means a position in which individuals have a key and direct role in the handling of horse such that performance impacted by alcohol or other drug use could result in:

(1) An incident affecting the health or safety of employees, licensees, patrons, horses, or the public, or

(2) An inadequate response or failure to respond to an emergency or operational situation.” (TB Rules, page 6)

“Rule 3.11

Before entering upon their duties, all racing officials of an Association shall be approved in writing by the Commission.

Rule 15.28

In any investigation or case, whether or not an oath is administered, if the participant knowingly withholds information or misleads the investigators or the Stewards, it shall constitute a violation.

Rule 15.29

The Director is responsible for the supervision of Thoroughbred Racing in the Province of Ontario and its duties shall include but not be limited to the following:

(a) The interviewing of any licensee with respect to any alleged criminal offence or alleged violation of the Rules. The Director may require a licensee to make a statutory declaration or a statement in writing or by video or audio recording and/or to produce documents, evidence, of any agreements or transactions, financial or otherwise, relating to any alleged criminal offence or alleged violation of the rules or to any matter which in the opinion of the Director is not in the best interest of racing.” (underlining added) ORC Factum, page 6)

23. (iii) The Criminal Code of Canada

“Judge To Be Satisfied

186. (1) An authorization under this section may be given if the judge to whom the application is made is satisfied:

(a) that it would be in the best interests of the administration of justice to do so; and

(b) that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.” (underlining added) Martin’s Annual Criminal Code, Part VI, Invasion of Privacy, Section 186 (1) (1) (b), page 370

The Law

24. Public Interest

i. “The Ontario Racing Commission has a statutory mandate ‘to govern, control and regulate horse racing in Ontario in any of all of its forms’ (Act, s.5). It has a broad array of powers set out in s.7 of the Act, and in exercising those powers and performing its duties, it must act in the public interest and ‘in accordance with the principles of honesty, integrity and social responsibility’.” (s. 6) (underlining added) (Ontario Racing Commission and Patrick Hudon, December 19, 2008, Ontario Divisional Court, ORC Factum, Ex. 2, tab 14, pages 1-2, para 2)

25. Investigative Powers

ii (a) “…the principle …, that requires that investigative powers be interpreted in a manner that ensures that investigators will have sufficiently effective measures at their disposal to gather all information relevant to determining whether a complaint should be lodged …” (underlining added) (GORE v. College of Physicians and Surgeons of Ontario, July 7, 2009, 2009 ONCA 546), (ORC Factum, Ex. 2, tab 15, page 10, para 29)

(b) “The Court of Appeal has held, with respect to a professional self-regulating body, that ‘it would take clear words’ from the legislature to deprive an investigator of the powers necessary to carry out an investigation:

[In Pharmascience v. Binet the Supreme Court] emphasized the onerous obligation placed on self-regulating bodies to protect the public …

It would take clear words to deprive the investigator of powers necessary to carry out this important public interest.” (underlining added) (Wise v. the Law Society of Upper Canada, May 4, 2010, 2010 ONSC 1937, (Ontario Divisional Court), ORC Factum, Ex. 2, tab 16, pages 4-5, para 16)

26. Flexible Interpretation

(c) “The Act, (Pharmaceutical Profession Act of Alberta) however, neither sets out specific directions about how to conduct a preliminary investigation nor provides time frames for completion. In our view, a restrictive interpretation would be inappropriate. The Supreme Court of Canada has stressed the need for a flexible interpretation of the supervising powers of self-regulated professions in order to enable them to discharge their public protection duty:” (underlining added), (Pharmascience Inc. v. Binet, 2006, (SCC), page 48 at paras 36-38), (Farooq v Alberta College of Pharmacists, October 20, 2010, 2010 A.J. No. 1548, Alta. C.A.), (ORC Factum, tab 17, page 10, para 48)

The Grounds of the Appeal

27. “1. Robert Bertrand was advised by the ORC Investigator on March 20th 2013, that he was not obliged in any way to answer any more questions or provide any documentation because he was unlicensed and the investigation was more or less complete.

28. Robert Bertrand on approximately 4 separate occasions met at length with an ORC investigator, namely on or about October 6th 2012, October 24th 2012, October 25th 2012 and November 8th 2012 and answered all questions and provided all information and documentation as required.

29. Robert Bertrand was effectively unable to be licensed according to the Deputy Directors letter dated March 6th 2013 notwithstanding that Robert Bertrand had cooperated fully with the ORC investigator up until that point.

30. The ORC investigator on March 20th 2013:

a) refused to allow Robert Bertrand to review or get copies of the lengthy statements that he had already provided, and

b) was unwilling to set–out what other questions or information was being sought taking into account that Robert Bertrand had met on approximately four separate occasions with an ORC investigator referred to in paragraph 2 above and answered all questions.” (Notice of Appeal of Bertrand, Book of Documents, Ex. 2, tab 10, page 197)

The Issues

28. Question (i) Does the Director of the ORC have the authority to order that a person is ineligible to be licensed, if that person refuses the request of an investigator, to provide information or material relevant to an inquiry or investigation?

29. If the answer to question (i) is yes,

30. Question (ii) must be addressed: Does the Director of the ORC have the authority, in this matter, to make such an order in view of the special circumstances said to be engaged in the refusal by Bertrand, to provide information or material relevant to an inquiry or investigation?

The Evidence

The Investigation by Bray

31. Bray interviewed Bertrand four times. Bertrand was open and cooperative on each occasion.

Date

Place

Participants

Topic(s)

Duration

Record keeping

October 6, 2012

Jocks’ Room, WEG

Bray, Bertrand

October 6, 2012 Breach of Alcohol and Drug Policy.

17 minutes start 4:22 p.m. end 4:39 p.m.

Audiotape

October 24, 2012

Jocks’ Room, WEG

Bray, Charles Beirnes (“Beirnes”), ORC Investigator, Bertrand

Breach of Alcohol and Drug Policy involving jockeys S. and M.

40 minutes start 4:40 p.m. end 5:20 p.m.

Audiotape

November 8, 2012

ORC

Bray, Bertrand, Steve Koch, VP-Racing Operations, WEG, as representative. for Bertrand

Breach of positive test sample procedures by Bertrand in June 2012.

39 minutes start 11:02 a.m. end 11:41 a.m.

Audiotape

November 25, 2012

Jocks’Room, WEG

Bray, Bertrand Steve Lym, Director of Racing WEG, as representative for Bertrand

November 21, 2012 self testing of breathalyzer involving jockey M.

17 minutes start 10:23 a.m. end 10:40 a.m.

Audiotape

32. On November 28, 2012, Bray set out the following six “Items for Consideration” at the conclusion of her eleven page report to the DD:

“The following actions outline the specific areas that contributed to the need for this investigation. Consideration regarding these specifics may minimize and prevent future incidents of this nature. The following actions may include but are not limited to:

1. BERTRAND failed to report readings in excess of the allowable limits to the Stewards after immediate receipt on October 6, 2012 and on various dates from June 2012 to present as outlined in the downloaded history.

2. BERTRAND failed to maintain accurate Thoroughbred Daily Test Records on twenty (20) separate occasions as outlined in the downloaded history.

3. BERTRAND failed to maintain direct observation of a participant who provided a sample in excess of the allowable limit while waiting to provide a second sample.

4. BERTRAND repeatedly states in all interviews he obtains breath samples in all areas of the Jock’s Room and not in the Clerk of the Scales Office as required, by established procedures.

5. BERTRAND failed to report initial sample readings; citing he knew the readings would come down and did not feel it necessary to bother the Stewards, knowing it was required by the protocol he is trained to follow.

6. BERTAND accepted full responsibility for his actions on October 6, 2012 and expressed remorse.” (Report by Bray to DD, November 28, 2012, File Number 12-694, Book of Documents, Ex. 2, tab 4, page 82)

7. On February 15, 2013, Bray set out the following four further “Items for Consideration” at the conclusion of her six-page report to the DD.

“1. M. admits to having consumed some alcohol on that date, and on the previous day.

2. M. admits to considering providing his own sample but stops, knowing he was wrong to consider it and did not actually follow through. That GUCE misunderstood his actions and sarcasm.

3. M. stated that he understands that his conduct was inappropriate.

4. M. did not provide proof of Provincial Court; however, during this investigation it was confirmed M. did in fact have a first appearance in Provincial Court on the day in question and was subsequently charged the following day for the same infraction, incarcerated and held for a bail hearing.” (Report by Bray to DD, February 15, 2013, File Number 12-802, Book of Documents, Ex. 2, tab 4, page 118)

THE INVESTIGATION BY ARRAND

34. On February 13, 2012, Arrand was assigned to the continuing investigation involving Bertrand.

o Arrand read reports 12-694, 12-801 and 12-802 prepared by Bray.

o Arrand conducted preliminary background checks on February 25, 2013.

o Arrand interviewed first Russell Fernandes (“Fernandes”), Assistant Manager of Racing, ORC.

o On February 26, 2013, Arrand interviewed TB Steward Fenton Platts (“Platts”).

o On February 28, 2013, Arrand sought further information on a Criminal Code violation (impaired operation of a motor vehicle) alleged against a jockey who had raced at Woodbine one hour before his arrest by police.

o On March 11 and 12, 2013, Arrand attempted to contact Bertrand.

o On March 12, 2013, Arrand sought an expert opinion from a toxicologist re the impaired occurrence.

o On March 13, 2013, Arrand attended WEG to serve a Document Production Request.

o On March 13, 2013, Arrand spoke by telephone with Bertrand to arrange a meeting.

o On March 20, 2013, Arrand met with Bertrand and his counsel, McMahon, at Woodbine.

o On March 20. 2013, Bertrand refused to provide a statement to Arrand on the advice of counsel.

Further investigation followed:

o On March 27, 2013, Arrand spoke further with Fernandes.

o On March 27, 2013, Arrand obtained an audio statement from Platts.

o On March 27, 2013, Arrand obtained an audio statement from TB Steward Gunnar Lindberg.

o On March 28, 2013, Arrand obtained an audio statement from TB Steward William McMahon (no relation to counsel for Bertrand).

o On March 28, 2013, Arrand obtained an audio statement from TB Steward Richard Grubb.

o On April 8, 2013, Arrand received the toxicology report he had requested on March 12, 2013.

o On April 11, 2013, Arrand served a further Documents Production Request on WEG.

o On April 12, 2013, Arrand received further information from Fernandes.

o On April 12, 2013, Arrand received a reply from WEG in relation to The Document Production Requests.

The Interview of Bertrand

35. On March 20, 2013, Arrand told Bertrand that:

(i) he was not under arrest that:

(ii) he was under no obligation to speak with Arrand; (since he was no longer a TB licensee, his licence having expired March 1, 2013);

(iii) he was free to leave the interview at any time;

(iv) he would remain unlicensed pending the outcome of the investigation, (as set out in the March 6, 2013 letter from the DD); and

(v) an interview would be required before he was relicensed by the ORC.

36. Counsel made three requests of Arrand:

(i) that he not audiotape their March 20, 2013 discussions;

(ii) that he provide a preview of all questions that he intended to ask of Bertrand; and

(iii) that he provide to counsel copies of all ORC reports involving Bertrand.

37. Request (i), no audiotape:

Arrand agreed.

38. Request (ii) preview of questions:

Arrand did provide limited information on “areas of concern” for proposed questions including:

(i) the November 4, 2012 impaired driving occurrence by M.;

(ii) the alleged improper use of breath-testing equipment (ALERT J5); and

(iii) the allegations of improper equipment having been used at pre-race weigh-ins by jockeys.

Counsel took the position that these “details re: proposed questions were vague and unclear.”

(Factum of Bertrand, Ex. 3, page 3, para 11)

39. Request (iii) to “review or get copies” of statements of Bertrand:

Arrand declined this request.

Arrand did tell counsel that the requested materials may be obtained:

(i) if a Notice of Proposed Order was issued against Bertrand; or

(ii) if Bertrand made a Freedom of Information Act request to the ORC.

REASONS

40. The panel heard the live evidence and submissions of both counsel and read the five exhibits including the two-hundred and thirty-nine pages of material in the Book of Documents and the seventeen precedents in the ORC Factum.

41. The panel makes the following findings:

(i) Investigation - Foundation

42. The appellant expressed concern as to the number and frequency of the interviews and the topics canvassed by the investigators.

43. The interviews of Bertrand spanned five and one-half months.

44. Arrand was asked:

“Q What precipitated your investigation?”

A (i) the six “Items for Consideration”, in the November 28, 2012 report by Bray;

(ii) the continuing concerns surrounding the Standard Operating Procedures of the ALERT J5 (breath-testing device for alcohol)

(iii) further follow-up surrounding:

(a) breaches of protocol for failed breath-testing on October 6, 2012;

(b) impaired driving occurrence on November 4, 2012, involving jockey M. who had raced one hour before his arrest;

(iv) weigh-in issues; and

(v) concerns re: alleged off-track association between jockeys and Bertrand.

45. Upon consideration of the entire investigative process, including the interviews (their frequency, duration, location and participants), the investigative reports, the fresh interviews of others and in particular, the evolving safety concerns, there was ample foundation for the continued inquiries and investigations of Bertrand.

46. The full investigation of safety concerns is essential in TB horse racing where the symbiotic relationship of equine and human athletes demands a blend of skill, strength, endurance and courage, in close quarters, at amazing speeds.

(ii) Immunity

47. Bertrand, as the C of S, for more than twenty years, has performed the many tasks required for the safe and successful conduct of live TB race days.

48. Arrand said that Bertrand was the “eyes and ears of the stewards” at “one of the biggest tracks in North America.”

49. Richard Dos Ramos, a jockey for thirty years, who has ridden in 18,000 races, won two-thousand one-hundred and fifty-one horse races” and in excess of sixty million dollars of purse money, was called as a witness by counsel for Bertrand.

50. Dos Ramos has known Bertrand for many years. McMahon asked Dos Ramos:

Q “Have you ever seen him (Bertrand) do anything improper in any way, shape or form?”

A “No.”

51. However, it must be understood, that no participant in the horse racing world, in Ontario, including Bertrand, irrespective of prior pristine conduct, multiple skill sets, experience, longevity or popularity within the jockey colony, is immune from investigation. There are no untouchables.

(iii) Witch Hunt

52. There was no foundation, in the evidence, for the belief that Bertrand was the target of a “witch hunt”, a colourful expression used in the March 20, 2013 interview.

(iv) Oppressive Conduct

53. The expression “hot lights”, in closing submissions, a rhetorical flourish, was without foundation in the evidence.

54. There was no evidence of any oppressive conduct by the investigators towards Bertrand. There was no atmosphere of compulsion. There was no breach of the rules of procedural fairness.

55. There was no foundation in the evidence for any conclusion other than that the continuing investigations were conducted in a professional, thorough manner, in the “public interest” and “in accordance with the principles of honesty and integrity, and social responsibility” (s.6 RCA).

(v) Requests By Counsel

56. The March 20, 2013 requests by counsel to Arrand were proper. However, investigators are not automatically obliged to comply with the requests of counsel.

57. It is expected that requests by counsel will be treated with courtesy and consideration. However, when assessing the response of investigators to requests by counsel, it must be remembered that there is a “need for a flexible interpretation of the supervising powers of a self-regulated profession to enable them to discharge their public duty.” (Pharmascience Inc. v Binet)

58. In the context of this investigation, it was not necessary for Arrand to respond more fully to requests (ii) and (iii).

(vi) Other Investigative Procedures

59. Quite unlike the extraordinary procedure necessary for a “wiretap” authorization, Arrand as an ORC investigator did not have to demonstrate:

”(i) that other investigative procedures have been tried and have failed,

nor

(ii) why it appears that they are unlikely to succeed.

nor

(iii) that the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.” (underlining added)

60. In any event, other investigative procedures had indeed been tried by Arrand, both before and after the March 20, 2013 refusals.

(vii) Precedent – The Eleven Propositions

61. The ORC Factum stated:

“o) Precedent includes the following propositions:

i) A regulator shall act in the public interest.

ii) The ORC, as a regulator, must perform its duties in the public interest.

iii) A licence is a privilege, not a right.

iv) There is a lower expectation of privacy in regulated industries, such as the racing industry.

v) Horse racing is a highly regulated industry.

vi) The ORC has a broad array of powers.

vii) Participants shall cooperate with their governing body or regulator.

viii) Current ORC licensees or those seeking licensure shall cooperate with investigators.

ix) There exists an obligation to provide information during the course of an investigation.

x) Failure to provide statements and/or produce documents may constitute obstructing an investigation.

xi) A continuing investigation, involving multiple visits, assessments or interviews, is not unreasonable.” ORC Factum, Brief Summary of the Relevant Facts, Part 1, Ex 2, page 3, para 16(o), (i) to (xi) inclusive

62. The eleven propositions are accepted as accurate statements.

63. However, an addition to proposition eleven is necessary in the context of this Appeal.

64. Proposition eleven, as presently framed, reads:

“(xi) A continuing investigation, involving multiple visits, assessments or interviews, is not unreasonable.”

The necessary addition is as follows:

(a) “if conducted in accordance with the rules of procedural fairness;

(b) and/or not for an inappropriate motive.” (underlining added)

(viii) Power To Request Statements/Documents

65. The Director is authorized to require information and material from any person, including those unlicensed by the ORC, pursuant to section 18 (4) of the RCA.

66. This section expressly provides for two distinct powers of the Director:

(i) ”may require information or material from any person who is the subject of inquiries or investigations;

and

(ii) may request information or material from any person who the Director has reason to believe can provide information or material relevant to the inquiries or investigations.” (underlining added)

(ix) The Choice

67. “Where to elect there is but one, ‘Tis Hobson’s choice – take that, or none.”

(“England’s Reformation”, 1688, a poem by Thomas Ward,

from the Spectator, October 14, 1712,

[after Thomas Hobson (1544-1631) of Cambridge, England]) (owner of a horse stable).

68. Bertrand was entitled to refrain from cooperation with the investigator.

69. Bertrand refused to provided:

(iii) statements

and

(iv) documents as requested.

70. These refusals rendered him ineligible to be licensed.

71. If Bertrand no longer “wishes to be licensed he need not cooperate further and the investigation would conclude on the basis the statements are not being provided. However, if he is seeking a renewal of the licence … in order to complete the investigation which remains outstanding, it is reasonable for (the Administration) to require responses to outstanding questions.”

Bertrand v. ORC, April 24, 2013, Submissions of the respondent Transcript excerpt, pages 3-4, lines 23-24 and lines 1-8

The Issues

72. Question (i) Does the Director of the ORC have the authority to order that a person is ineligible to be licensed, if that person refuses the request of an investigator, to provide information or material relevant to an inquiry or investigation?

73. The answer to question (i) is “yes”.

74. Question (ii) Does the Director of the ORC have the authority, in this matter, to make such an order in view of the special circumstances said to be engaged in the refusal by Bertrand, to provide information or material relevant to an inquiry or investigation?

75. The answer to question (ii) is “yes”.

Decision

76. This Appeal by Bertrand is denied.

Result

77. “Robert Bertrand is ineligible to be licensed as an Association Official until he responds to an ORC Investigator, pursuant to subsections 18 (1) and 18 (4) of the Racing Commission Act” This Ruling dated April 10, 2013, remains in effect. (Thoroughbred Ruling, Robert Bertrand Ruling Number TB ADMIN 5/2013 by Deputy Director, dated April 10, 2013, Book of Documents, Ex. 2, tab 10, page 198)

DATED this 23rd day of May 2013.

Anthony Williams

Vice Chair