RULING NUMBER COM SB 003/2014
COMMISSION HEARING TORONTO, ONTARIO – MARCH 19, 2014
NOTICE OF DECISION
IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF THE APPEALS OF GABRIELLA SASSO and RONALD ADAMS
Gabriella Sasso appealed against the track judges’ Ruling Number SB 46018 dated February 7, 2014.
Ronald Adams appealed against the track judges’ Ruling Number SB 46019, dated February 7, 2014.
ORC Panel Member: Anthony Williams, Vice Chair
Representative for the Appellants: Brian Tropea, General Manager Ontario Harness Horse Association
Counsel for the Administration: Jennifer Friedman
Decisions:
(i) Disclosure - the applications for further disclosure were denied as premature, without prejudice to subsequent applications based upon a change in circumstances;
(ii) Stay –the applications for stays of the Rulings were denied without prejudice to subsequent applications based upon a change in circumstances;
(iii) Appeal – the appeals against the hold of the purse monies were denied.
The Reasons for Decision is attached to this Notice.
DATED at Toronto this 27th day of March 2014.
_____________________________________
Steven Lehman
Executive Director
REASONS FOR DECISION
OVERVIEW
Gabriella Sasso (“Sasso”) is licensed by the Ontario Racing Commission (“ORC”) as an owner/trainer of standardbred (“SB”) race horses, licence # OA7129.
Ronald Adams (“Adams”) is licensed by the ORC as a trainer of SB race horses, licence # W8487.
On February 7, 2014, the track judges at Woodbine Racetrack, at Toronto, issued two SB Official Rulings pursuant to Rule 1.09 of the Rules of SB Racing:
(i) Sasso
“All purses earned by horses trained by Gabriella Sasso in the Province of Ontario are to be held pending the outcome of an investigation by the ORC, effective February 7, 2014 – indefinite.”
Sasso, Book of Documents, Ex. 2, Tab 6 at p 15.
(ii) Adams
“All purse money earned in the Province of Ontario from February 7, 2014 till the conclusion of the investigation by the Ontario Racing Commission to be held from trainer Ron Adams’ horses that he is racing.”
Adams, Book of Documents, Ex. 1, Tab 6, at p 14
On March 4, 2014, Sasso appealed against her Ruling.
On March 5, 2014, Adams appealed against his Ruling.
On March 10, 2014, Notices were issued for a Hearing to be held on Wednesday, March 19, 2014, at 8:30 a.m. at the ORC, at Toronto.
THE HEARING
On March 19, 2014, the appeals were heard by a panel of the ORC.
This was a hearing “de novo” or fresh hearing.
The proceedings were combined with the consent of the parties, pursuant to Rule 10.1 of the Rules of Procedure.
No witnesses were called.
Nine documents were filed as exhibits.
THE EVIDENCE
- (i) Sasso – Trainer Investigation Report
“Over the past year, the Investigations Unit has received information from numerous participants claiming that suspended trainer Chris Haskell is actively involved in the training of race horses using Ronald Adams and Gabriella Sasso as the listed trainers. An investigation into the matter was launched and the following pages outline what has been completed so far. ...
Document Request
On January 13, 2014, Investigator Moffatt served a document request (attached) to Sasso. The records were due on January 27, 2014 and two extensions were granted for the documents to be delivered on Sunday, February 2, 2014.
Summary
The totality of the information obtained this far gives reasonable evidence that Haskell is involved in the stables of both Adams and Sasso. The document request has not been fully complied with but documents that have been received to date have demonstrated a significant relationship between Sasso and Haskell. …”
Sasso, Trainer Investigation Report, January 20, 2014, Book of Documents, Ex. 2, Tab 4, at pp 1 and 4.
(ii) Adams – Trainer Investigation Report
“Over the past year the Investigations Unit has received information from numerous participants claiming that suspended trainer Chris Haskell is actively involved in the training of race horses using Ronald Adams and Gabriella Sasso as the listed trainers. An investigation into the matter was launched and the following pages outline what has been completed so far. …
Document Request
On January 13, 2014, Investigator Moffatt served a document request (attached) to Adams. The records were due on January 27, 2014 and two extensions were granted for the documents to be delivered on Sunday, February 2, 2014.
The document request was not fulfilled in its entirety and is missing numerous records for a full analysis to be completed. …”
Adams, Trainer Investigation Report, January 30, 2013, Book of Documents, Ex. 1, Tab 4 at pp 1 and 4.
- The Impact
(i) Sasso
(a) “My purse monies being held affect (sic) my livelihood, therefore I appeal this ruling by the judges.”
Gabriella Sasso, Notice of Appeal, Book of Documents, Ex. 2, Tab 7, at p 16;
(b) The amount of purse monies held as of March 19, 2013 was $4,175.
(ii) Adams
(a) “This ruling affects my livelyhood (sic) and is my source of income.”;
(b) The amount of purse monies held as of March 19, 2013 was $1,600;
(c) One owner has withdrawn his horse from training.
- The Update
(i) Sasso
(a) The Documents
All thirteen categories of documents required have been now provided to the investigators.
Requirement to Provide Documents January 30, 2014, Book of Documents, Ex. 2, Tab 3, at p 7.
(b) The Interview
The interview by the investigators is scheduled for March 22, 2014.
Rules 6.28 and 6.29 of the Rules of SB Racing
(ii) Adams
(a) The Documents
The fifteen categories of documents required have been provided to the investigators with the exception of part of one category (telephone records which Adams has already requested from the company which holds them).
Requirement to provide Documents – January 30, 2014 Book of Documents, Ex. 2, Tab 3, at p 7.
(b) The Interview
The interview by the investigators is scheduled for March 22, 2014.
Rules 6.28 and 6.29 of the SB Rules of Racing.
- The Disclosure Request
On March 17, 2014, Brian Tropea requested the following materials:
“the complete, unredacted document book;
the preliminary package of the investigation regarding Sasso, Adams and Haskell that the Investigators provided to Judges Brown and Hughes who made the order under appeal; and
any other exculpatory statements, (this request was extended at the hearing to include inculpatory statements) records, documents seized or received from these three licence holders;
search warrants;
intercepted communications;
searches, etc. by Investigators of the ORC and/or the Ontario Provincial Police acting in this investigation.”
Untitled Book of Documents, Ex. 5, Tab 1.
THE RULES OF ENGAGEMENT
- (i) The Racing Commission Act
Objects
- “The objects of the Commission are to govern, direct, control and regulate horse racing in Ontario in any or all of its forms.”
Duty
- “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.”
Powers
- The Commission has power,
(a) “to govern, direct, control and regulate horse racing in Ontario in any or all of its forms;”
(d) “to license owners, trainers, … and to impose those terms on a licence that the Commission considers expedient;”
(e) “to prescribe the form of licences and the conditions under which they may be issued, continued or renewed;”
(ii) The Rules of Standardbred Racing
Rule 1.09
(a) “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 interests of racing. …”
(b) Rule 26.15
“The trainer of record of a horse shall be a licensed trainer who has the day-to-day care and or custody and or control of the horse and is responsible for the training, allocation or direction of training duties at the stable.”
Rule 26.15 of the Rules of Standardbred Racing 2012, effective July 31, 2012.
(iii)The Legal Precedents
(a) “… the public has a legitimate expectation that the commission will discharge the regulatory duties entrusted to it, by effectively investigating those activities from which the … public require protection, and by exercising its regulatory powers so as to ensure that the purpose of the legislation, namely, the protection of the public is achieved.
On the other hand, the individual who is the object of such an investigation has from the outset known that he or she is participating in a highly regulated and controlled activity, ….
To apply to be licensed, which is a prerequisite to such participation, is to accept the expectation of constant and vigilant supervision.”
“… in a highly regulated industry … the individual is aware, and accepts, justifiable state intrusions.”
British Columbia Securities Commission v Branch 1995 CanLII 142 (SCC), [1995] 2 S.C.R. 3, Factum of the Administration, Ex. 3, Tab C at pp 13-14, para 25 and at p 24, para 64.
(b) Rule 1.09
“ “basket” provisions are not unusual, for example in the regulation of self-governing professional bodies.”
Kelly Lester & Robert Zubkoff v The Ontario Racing Commission, Superior Court of Justice, Ontario, (Divisional Court) September 26, 2008 at p 2, para 10.
(iv) The Stay
“The Director will only grant a stay upon receipt of a written application with supporting materials and upon being satisfied that granting a stay is in the best interest of racing.”
ORC General Directive No, 7/2007.
“This hearing came forward as a request for a stay. The panel takes this opportunity to give notice to the industry. The panel recognizes its responsibilities under the Racing Commission Act of 2000 as it relates to both to govern, direct and control and regulate horse racing in Ontario in any and all of its forms and to protect the public interest… .
The Commission in developing the policy and stays recognizes that direction, responsibility and discretion it was providing the Director that it was no stay unless for extraordinary circumstances.”
In the matter of the Appeal of Standardbred Licensee Michael Porter, Factum of the Administration, Ex. 3, Tab A, Ruling Number COM SB 029/2007.
THE THREE ISSUES
ISSUE I THE REQUEST FOR FURTHER DISCLOSURE
Is an order requiring the ORC to provide further disclosure appropriate?
ISSUE II THE STAY APPLICATION
Is an order staying the Ruling appropriate?
ISSUE III THE APPEAL
Is an order allowing the Appeal appropriate?
ISSUE I THE REQUEST FOR FURTHER DISCLOSURE
- (a) Discussion
The discussion which follows relates to THE THREE ISSUES
I accept the law as set out by the appellants as it relates to:
(i) the principles governing disclosure; and
(ii) the right of the appellants to make full answer and defence.
Untitled Book of Documents of the Appellants, Ex. 5, Tab 2, at pp 4-9, paras 1-20.
There are multiple competing interests at play.
The appellants have the right to full and timely disclosure and the right to make full answer and defence.
The public has the right to expect full, timely and thorough investigations into allegations of serious misconduct by participants within the racing industry.
The investigation is drawing to a close. The interviews of the appellants were scheduled for March 22, 2014.
All requested documents have been provided by Sasso. All requested documents (with a partial exception) have been provided by Adams.
The investigation completion date was March 26, 2014.
The decision as to charges, if any, was expected by mid-April 2014 (in three weeks).
The appellants have not been charged with any breach of the SB Rules.
Their purse monies have been frozen, not forfeited. If no charges are laid, the purse monies must be returned. In the interim, the appellants are entitled to pursue the full spectrum of racing activities for which they are licensed. If charges are laid, the appellants are entitled to have disclosed to them, “all information relevant to the conduct of the case, … in a timely manner, unless it is privileged as a matter of law.”
Daniel Waxman and Vandalay Racing v O.R.C. Ontario Superior Court of Justice (Divisional Court) 2006 CanLII 35617 (ON SCDC), [2006] O.J. No. 4226, Untitled Book of Documents of Appellants Ex. 5, Tab 3, para 9.
The materials I have reviewed have been heavily redacted for the protection of both source information and the integrity of the investigation.
Full disclosure now may compromise the investigation. I find:
(i) that there is a proper foundation for the investigation of the allegations;
(ii) that the investigation is timely;
(iii) that the investigation has been conducted in good faith.
(b) Decision
I find that the applications for further disclosure are premature at this stage of the investigation. The applications are denied without prejudice to subsequent applications based upon a change of circumstances.
ISSUE II THE STAY APPLICATION
- (a) Discussion
I find that the protective hold over the purse funds is a justifiable remedy pending the completion of the “hidden trainer” investigation.
I do not find “extraordinary circumstances” in the case of either Sasso or Adams to warrant a stay of the freeze.
(b) Decision
The applications for stays are denied without prejudice to subsequent applications based upon a change of circumstance.
ISSUE III THE APPEAL
- (a) Discussion
I am satisfied, on a balance of probabilities that the Administration has met the burden of proof upon it, to demonstrate that the hold placed upon the purse monies to which the appellants would have been ordinarily entitled, was an appropriate use of Rule 1.09 of the Rules of SB Racing, in the public interest, pending the completion of the investigation, to protect the integrity of racing. The seizures were justifiable intrusions by the state.
(b) Decision
The appeals against the hold of the purse monies are denied.
DATED at Toronto, Ontario, this 27th day of March 2014.
_______________________________
Anthony Williams
Vice Chair