AMENDED RULING NUMBER COM SB 013/2014

COMMISSION HEARING TORONTO, ONTARIO – JUNE 3, 2014

NOTICE OF DECISION

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

AND IN THE MATTER OF THE REQUEST FOR A HEARING BY COLIN JOHNSON

Colin Johnson, licence # R56508, requested a Hearing against two decisions made by the Executive Director, on May 29, 2014, pursuant to sections 22 and 23 of the Racing Commission Act:

i) Notice of Immediate Suspension;

and

ii) Notice of Proposed Order of Suspension.

Date of Hearing: June 3, 2014

ORC Panel Members: Elmer Buchanan, Chair Anthony Williams, Vice Chair John W. Macdonald, Commissioner

Counsel for Appellant: Larry Todd

Counsel for the Administration: Jennifer Friedman

Decisions:

(i) Stay – The application for a stay of the Immediate Suspension was denied, without prejudice to subsequent applications based upon a change in circumstances;

and

(ii) Hearing –This matter is to be heard on Thursday, July 3, 2014 at 10:00 a.m., and if necessary, will continue on Friday, July 4, 2014, at 10:00 a.m.;

(iii) Disclosure – No mandatory time requirements limits were imposed on disclosure.

A transcript with the Panel’s oral Reasons for Decision is attached to this Notice.

DATED at Toronto this 6th day of June 2014.

Steven Lehman

Executive Director

ONTARIO RACING COMMISSION

STANDARDBRED HEARING

IN THE MATTER OF THE RACING COMMISSION ACT, 2000, S.O. C.20 AND THE RULES OF STANDARDBRED RACING:

AND IN THE MATTER OF AN APPEAL AND REQUEST FOR HEARING OF COLIN JOHNSON:

Held Before:

Anthony Williams Commission Vice Chairman

Elmer Buchanan Commission Chairman

John Macdonald Commissioner

These are an excerpt of the proceedings in the above mentioned matter held before The Ontario Racing Commission, Re: COLIN JOHNSON, taken before Toronto Court Reporters, Suite 1410, 65 Queen Street West, Toronto, Ontario, at 10 Carlson Court, Suite 400, Toronto, Ontario, on the 3rd day of June, 2014.

Appearances:

Jennifer Friedman, for the Ontario Racing Commission Administration

Larry Todd for the appellant Colin Johnson

Hearing continued ...

MR. MACDONALD: All rise.

MR. CHAIRMAN: Thanks very much. Please be seated. I will now seek to provide the ruling to the parties in relation to the matter of Colin Johnson licensee appellant against the Ontario Racing Commission. Today was scheduled Tuesday, June 3rd, 2014 at 10:00 in the forenoon for the hearing of an appeal by the appellant against a suspension of his licence. Recent developments not surprisingly derailed the anticipated proceedings this morning. Larry Todd, counsel for Colin Johnson licensee and appellant, made three applications this morning. The first that the Ontario Racing Commission provide an opportunity for the hearing of the recent applications by the Racing Commission under Sections 22 and 23 of the Racing Commission Act, respectively the Notice of Immediate Suspension and the Notice of Proposed Order within a period of 60 days. The second request that there be a stay of the immediate suspension of recent vintage and the third that there be a requirement that if there is further disclosure to be provided by the Administration to Mr. Johnson that it be provided to counsel at a minimum of twenty days in advance.

Issue number three was addressed earlier today that there would be no fixed time frames applied to the disclosure travelling in either direction, that counsel it was expected would act in the professional and courteous fashion as is their respective customs in providing the materials to the opposite side at as brisk a pace as is realistic. In relation to application number one the opportunity for a hearing within sixty days the panel embraces that proposal. The panel in view of the circumstances of the licensee appellant and the type of allegation that has been made would certainly encourage, again if realistic, that the actual hearing of the proceedings in relation to the two sections of the Racing Commission Act be within thirty days. The panel is aware of other commitments of counsel. If there were to be changes in circumstances earlier dates would appear to be available. In relation to the core application, stay of immediate suspension, the panel has reached the conclusion that a freeze or stay of the Order of Immediate Suspension is not appropriate in all of the circumstances. The panel is satisfied that the public perception in relation to the very serious hidden trainer allegation and the available evidence presently marshalled in support is sufficient to decline the application for stay. The panel has considered the package of materials in Exhibit number 2, including tab 4 the case of Miroslav Czupa at paragraph 32 where the quotation is in relation to that particular appellant that there was "not demonstrated an extraordinary reason via cogent and compelling evidence” sufficient to justify a freeze. There are a number of legitimate concerns raised by counsel on behalf of Mr. Johnson in relation to the pace of the investigative procedures. There may be challenges in relation to the quality of evidence and strength of case. It appears that the evidence in part includes reliance upon a series of photographs revealing joggers and/or race bikes owned by Mr. Johnson, a number of types of equipment and medication utilized by the alleged public trainer, property of alleged hidden trainer and the utilization of phone calls to create a case adverse the appellant licensee. The application for the stay of the immediate suspension is today denied without prejudice to subsequent application or applications for stay based upon a change of circumstances in the situation of this matter. So that would be the ruling of your panel. I thank both counsel for their assistance today.

MS. FRIEDMAN: Thank you.

MR. CHAIRMAN: Are there any questions of either counsel in relation to the ruling?

MS. FRIEDMAN: Are we in a position now to schedule a date for the hearing or should we give that ‑‑

MR. CHAIRMAN: If that's of assistance we are prepared to assist wherever we can.

MR. TODD: I think I can get it arranged but I would need to make some phone calls to see when people can be here and Ms. Friedman indicated that this morning too. So I will have to make some phone calls.

MR. CHAIRMAN: We were expecting to be here into the evening in any event so we will be generous.

MR. TODD: My only question was, gentlemen, it would save a lot of time and effort if you gentlemen were available or at least part of the panel was to be available so we didn't have to reinvent the wheel when we do this thing on the merits. Is that a reasonable request, Mr. Chairman of the Commission?

MR. BUCHANAN: It would be our hope and we have had that discussion among the three of us as to what availability and we are as much available as you would expect or more. So we have got several dates where we know we are available within the thirty day time frame.

MR. TODD: Okay.

MS. FRIEDMAN: Can you advise of the dates and then following the hearing Mr. Todd and I can hopefully settle on one of the dates that the panel is available?

MR. CHAIRMAN: How about so it will be a little less unseemly than it might otherwise be if we disappear for eight minutes and we will return with a batch of dates for your consideration.

MR. TODD: Great. Thank you.

SHORT RECESS

Upon Resuming...

MR. CHAIRMAN: Thank you. Please be seated. Since Mr. Todd has kindly advised of other previous commitment well in advance this is not an attempt to undermine his position at all just I'm going to go through in chronological order. If other commitments were to collapse these dates in the month of June and very early July are available to the three members of your panel and again 16, 18 and 19 of June, 23, 25 and 27 of June and June 30th and the remnant of that week 2, 3, 4 of July are all available dates to the panel. I don't know about our reporter from the north.

MR. BUCHANAN: He waived his rights.

MR. CHAIRMAN: He waived something. I'm not sure what it was. Those may not be attractive to the participants and you may not be in a position to say. We could go deeper into July if you wished.

MR. TODD: Mr. Chairman, could I ask if the panel would be available on 9, 10 and 11 because that one works for me and my calendar ‑‑

MS. FRIEDMAN: June?

MR. TODD: No, in July 9, 10 or 11.

MS. FRIEDMAN: I'm not here 9, 10 and 11. I'm here 9, 10 or 11 of June.

MR. TODD: Sorry?

MS. FRIEDMAN: I'm here 9, 10 or 11 of June but not of July but 23, 25, 27, 30 and July 2, 3, 4 works for the Administration.

MR. CHAIRMAN: Sorry, 23, 25, 27?

MS. FRIEDMAN: 30 and July 2, 3, 4.

MR. CHAIRMAN: August 2, 3, 4?

MS. FRIEDMAN: July 2, 3, 4.

MR. CHAIRMAN: Sorry.

MS. FRIEDMAN: Are we contemplating a one day or two day hearing?

MR. CHAIRMAN: Since your panel has now consumed, different degrees of digestion, the 23 tab packages in Exhibits 1A and 1B and we have heard submissions; we were chatting about this earlier, that we were of the opinion that we likely, depending on what evidence were to unfold, would be in a position to hear it within a day.

MS. FRIEDMAN: Yes, that's the perspective of the Administration as well.

MR. TODD: I think it might go longer, sir but I can do July 3 and 4; those dates I've got, as suggested. I can move something around there.

MR. BUCHANAN: Can we start the 3rd, yes.

MR. TODD: The 3rd and then if we have to go to the 4th we go to the 4th. Does that work?

MR. CHAIRMAN: Yes.

MS. FRIEDMAN: Yes.

MR. CHAIRMAN: Thank you and would 10:00 in the forenoon be attractive?

MR. TODD: It would be, sir.

MS. FRIEDMAN: Yes.

MR. CHAIRMAN: So we would then be adjourning anticipated hearing of the appeals by Mr. Johnson against the Section 22 and 23 Orders of Immediate Suspension as well as Notice of Proposed Order seeking two year suspension sanction and $15,000 monetary sanction. Are there any other matters that we should canvas before we depart? If it turns out that a witness or witnesses may not be available on the return date there may be - both counsel are very inventive and energized and there may be alternative approaches for receiving evidence from statement to Skype.

MS. FRIEDMAN: Some panels are not keen on electronic evidence. Is this panel agreeable to electronic, telephone or Skype, evidence if necessary?

MR. BUCHANAN: If we have to.

MR. CHAIRMAN: I think the collective opinion would be that it would not be the first choice but yes, the answer is yes. There is not a complete prohibition as there may have been in some past panels. As long as you don't expect me to have any role in any operation of any of the equipment then you will do just fine.

MS. FRIEDMAN: Thank you.

MR. CHAIRMAN: Excellent. Then we will seek to adjourn this matter for a period of one month to the 3rd day of July at 10:00 in the forenoon. Thank you all.

CERTIFIED CORRECT:_______________________________

RAYMOND P. MACDONALD, B.A., CVR

Commissioner of Oaths