RULING NUMBER COM TB 007/2013

COMMISSION HEARING TORONTO, ONTARIO – JUNE 4, 2013

NOTICE OF DECISION

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

AND IN THE MATTER OF THE BRIAN LYNCH APPEAL

Brian Lynch appealed against Ruling Number TB 16/2013.

Date of Hearing: June 4, 2013

ORC Panel Members: Chair Rod Seiling

Counsel for Appellant: David Burke

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 10^th^ day of June 2013.

Steven Lehman

Executive Director

REASONS FOR DECISION

Overview

1. Thoroughbred licensee, Brian Lynch, requested an expedited hearing in regards to TB Ruling Number 16/2013, wherein his licence was suspended pending the outcome of an Ontario Racing Commission (ORC) investigation pursuant to subsection 18(4) of the Racing Commission Act and Rule 15.09.01 of the Rules of Thoroughbred Racing. The purpose of the hearing was to be a request for the issuance of a stay from the Ruling.

2. The Panel ruled at the conclusion of the hearing that “It will not issue, in the best interest of racing, a stay at this time. Mr. Lynch should first deal with his criminal matter and at the very least await the report of the regulatory investigation. It may then be appropriate for him to re-submit to the Director a request for a stay.”

3. Written reasons were to follow. These are those reasons.

Background

4. On May 29, 2013, the ORC issued TB Ruling Number 16/2013 suspending trainer Brian Lynch “pending the outcome of an ORC investigation, pursuant to subsection 18(4) of the Racing Commission Act and Rule 15.09.01 of the Rules of Thoroughbred Racing.”

5. On May 28, 2013, the Commission received a faxed letter (Ex. 1, tab 4) from Harvey Swartz on behalf of Mr. Lynch stating that Russ Fernandes had advised him that Mr. Lynch was being suspended pending an investigation and requested an “immediate” hearing. Mr. Fernandes is the Assistant Manager of Racing for the ORC.

6. A hearing was held on June 4, 2013. Jennifer Friedman represented the ORC as legal counsel with David Burke representing the appellant as legal counsel and Harvey Swartz assisting.

7. Ms. Friedman raised a preliminary matter as to whether the hearing should proceed asking if it would be better to await the outcome of the criminal proceedings in which Mr. Lynch is currently involved and for the ORC investigation to conclude.

8. Mr. Lynch is currently under a court issued order. That order invokes the following restrictions:

ñ he is not permitted within 500 meters of Woodbine Racetrack;

ñ he is not permitted to be within 500 meters of Anantram (Sunny) Singh;

ñ he is not permitted to communicate directly or indirectly with Mr. Singh.

9. Normal due process for licensees in similar matters is for a hearing to be held once the Commission investigation is complete. Mr. Lynch’s representative submitted that if the ORC would restore his licence it might help him with his issues with the police and the restraining order currently in effect that is a financial burden on him.

10. Mr. Lynch’s representative was asked on what basis, given the ORC's mandate to protect the public interest and the interests (safety) of other licensees, should the Panel put his interests ahead of that mandate.

11. The response was that Mr. Lynch has always been an outstanding individual; that the suspension is damaging to him financially, that certain facts would soon be known that would show where the matter is headed and that Mr. Singh was available to testify that he was not in fear of his personal safety.

12. In regard to the latter point, Ms. Friedman responded that this was a criminal matter and that the proper place for Mr. Singh to communicate such information is the police.

13. The ORC has a stated policy that it will only grant a stay for extraordinary circumstances. The burden of proof rests with the appellant to provide clear and cogent reasons why such a request for a stay should be granted. Financial reasons in and of themselves do not meet the requirements. As well, Ms. Friedman submitted, the ORC must also be aware of the responsibility to protect the interests (safety) of other licensees in addition to the public interest.

Issue

14. Are there extraordinary reasons why a stay should be granted to the appellant given that the ORC's due diligence process into the matter is incomplete in addition to the criminal matters facing the appellant being unresolved?

Reasons for Decision

15. Counsel for Mr. Lynch did not provide any cogent, compelling reasons that it would be appropriate for a stay to be granted in advance of due process being completed in the matters facing him. The allegations are serious in nature and resulted in the court order against him that is still in effect.

16. Due process is fundamental within the administrative law system. The ORC strives to follow its tenets in its entirety to ensure the rights of all parties are protected and preserved.

17. The ORC also is mandated to protect the public interest. Included, the ORC's mandate is to protect the health and safety of licensees.

18. An integral part of the ORC's due process is a regulatory investigative report in matters such as this. Without that report and a resolution of the appellant's criminal proceedings, a decision on the stay request would not be in the public interest. A Panel requires this information to be brought forward so that it can give it the appropriate weight in its decision making process.

19. Vice Chair Williams in the Bertrand decision, COM TB 005/2013, makes reference to the importance of the investigative process at para 46. It reads, “The full investigation of safety concerns is essential in TB horse racing where the symbiotic relationship of equine partners and human athletes demands a blend of skill, strength, endurance and courage in close quarters, at amazing speeds.” In this case, we have a threat allegedly made by one licensee against another. If circumstances have changed, the proper place to “resolve” them is with the police and the ORC investigators, as Ms. Friedman so correctly noted.

20. No compelling, cogent reasons were provided as to why it would be reasonable for the Panel to move forward to consider a stay. Financial hardship, as has been stated many times by different Panels, in and of itself is not a reason to meet the “extraordinary circumstances”. The balance of convenience, in this instance, at this time, must fall to the good of racing.

21. Mr. Lynch's own legal representative went on the record in saying that in a few days it would be known where his criminal proceedings are heading. It is preferable to await this information before coming before a Panel with the request. Therefore a hearing to consider a stay is premature.

22. SB Ruling Number COM SB 040/2011 (Companion and Higgs) lays out the ORC’s policy on the granting of stays. It reads at para 17, “The bar is rightly set high to protect the integrity of the sport as well as the public interest. Too often in the past, licensees utilized due process by way of obtaining a stay to continue to participate in racing all the while earning monies they were possibly not entitled to earn....” In that same Ruling at para 18, that Panel went on to confirm that “Financial hardship, in and of itself, is not a reason for the granting of a stay.”

DATED this 10^th^ day of June 2013.

Rod Seiling

Chair