RULING NUMBER COM SB 020/2014
COMMISSION HEARING TORONTO, ONTARIO – JULY 15, 2014
NOTICE OF DECISION
IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF THE APPEAL 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: July 15, 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
Decision:
The Panel ruled that the Immediate Suspension as it applies to Colin Johnson is vacated and the application for the Notice of Proposed Order is dismissed.
A transcript with the Panel’s oral Reasons for Decision is attached to this Notice.
DATED at Toronto this 18^th^ day of July 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, Vice Chairman Elmer Buchanan, 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 15th day of July, 2014.
Appearances: Jennifer Friedman, for the Ontario Racing Commission Administration Larry Todd, for the licensee Colin Johnson
Hearing continued ...
MR. CHAIRMAN: I'm just checking the time so I don't exceed.
MR. BUCHANAN: He has a commitment to his colleagues on time.
MR. CHAIRMAN: The ruling. This is the ruling in the matter of the Ontario Racing Commission and Colin Johnson. The Director of the Ontario Racing Commission (ORC) served a Notice of Proposed Order (NOP) upon Colin Johnson the appellant pursuant to the Racing Commission Act (RCA). The Director proposed two sanctions. The first, the licence suspension for two years; second, a fine of $15,000.00. The appellant exercised his right to a hearing under Section 22 of the RCA. The hearing was held at Toronto on the 3rd and 15th days of July of 2014 before a three member panel.
The background: The investigation unit of the ORC conducted a full investigation into complaints that Johnson continued his participation in racing in violation of his suspension. The Director issued two Notices against Johnson, the first, immediate suspension; second, proposed order. Johnson sought a stay of the immediate suspension. The stay was denied on 3, June, 2014. The panel was not satisfied that a stay was in the best interest of racing. The evidence on the stay application was contained in two books of documents filed by the Administration Exhibits 1A and B, pages 1 to 237 and pages 238 to 412 respectively.
The rules of engagement: under the Racing Commission Act the Commission has specific powers and duties. 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 to govern, direct, control and regulate horse racing in Ontario in any or all of its forms. Section 7, subsection (d), to licence trainers. Section 7, subsection (k) to hold hearings. Section (l) to impose penalties for contravention of this Act, the regulations or rules are a requirement of the Commission made under this Act.
The Notice of Proposed Order (NOP) claimed that Johnson breached rule 6.10.01 of the Rules of Standardbred Racing (Rules). The rule states in part whenever a suspension is prescribed it shall be construed to mean disqualification from any participation either directly or indirectly in racing. The NOP alleged that Johnson between the 20th of January and the 20th of March, 2014 while his licence was under suspension continued to participate in racing as a shadow or hidden trainer through Yves Tessier (Tessier).
The legal principles: 1) the burden of proof rests upon the proponent, the Administration of the Ontario Racing Commission. Number 2) the standard of proof is proof on a balance of probabilities. Number 3) the evidence must be clear, cogent and compelling. It is the cumulative effect of all of the evidence which must meet the standard of proof.
The rules: the NOP claimed that Johnson violated Standardbred Rule 6.10.01 which contains two parts, part 1, whenever a suspension is prescribed it should be construed to mean an unconditional exclusion from the grounds of all associations where a licence is required and part 2, disqualification from any participation either directly or indirectly in racing unless otherwise specifically limited when such suspension is imposed such as a suspension from driving. Johnson is alleged to have breached the second part of the rule, the participation in racing component. The suspension of Johnson which by agreement began on 20 January, 2014 was not subject to any limitations. The suspension of Johnson was a full suspension. Rule 26.16 of the Rules of Standardbred Racing provides eight mandatory considerations for the guidance of Judges in the determination of the identity of the actual trainer of a horse. The first seven considerations (a) to (g) inclusive are specific. The eighth and last consideration may be described as a basket clause. It reads in any other relevant matters.
The evidence, the case for the Administration. In the two day hearing of the NOP the Administration relied upon the material contained in the book of documents filed June 3rd, 2014 Exhibits 1A and B and the materials contained in further documents filed July the 3rd, 2014 Exhibits 8 to 13 and the testimony of seven witnesses. Number one, Eddie McCarvill, doctor of veterinary medicine; number two, Charles Beirnes, investigator Ontario Racing Commission; number three, Peter Gillies, standardbred judge Ontario Racing Commission; number four, Neil McCoag, standardbred judge Ontario Racing Commission; number five, Corey Johnson, standardbred trainer and son of Johnson; number six, Debbie Element, standardbred owner, wife of Johnson and mother of Corey; number seven, Yves Tessier, standardbred trainer.
The evidence relied upon by the Administration to prove the participation of Johnson in racing includes a number of factors. Number one, the long established employer/employee relationship between Johnson and Tessier as trainer and groom. Number two, the use by Tessier of the stable that Johnson vacated. Number three, the head lease for the stable remained in Johnson's name. Number four, the unchanged appearance of the stable both exterior and interior. Number five, the bulk of the equipment used by Tessier belonged to Johnson. Number six, the green and yellow colours of the Johnson team and the name Colin Johnson Stable appeared on the equipment. Number seven, the office contained photographs of past victories and celebrations of the Colin Johnson Stable. Number eight, the letters found in the office which had been mailed to the training centre were addressed to Johnson, his wife and their son. Number nine, the absence of anything in the stable connected to Tessier except a single cheque, the cheque for the January lease and two cats. Number ten, the discovery during the barn search of medication for a horse previously trained by Johnson. Number eleven, use by Tessier of the same veterinarian that Johnson had used. Number twelve, the employment by Tessier of two former Johnson employees Linda Belanger and Jessica Turenne. Number thirteen, the presence of the Johnson equipment in the Tessier stable, including harness, bags, joggers, blankets and feed pails. Number fourteen, use by Tessier of both a Johnson jogger and race bike at the Rideau Carlton Raceway. Number 15, the many colour photographs of racehorses in the winner's circle at the raceway hooked up to the green and yellow Johnson race bike with the name Colin Johnson Stable visible in yellow on a green background. Number sixteen, the absence of any owner/trainer contracts between the horse owner and Tessier between January 20, 2014 and March 11, 2014. March 11 was the date of the barn search and the interview of Tessier by Investigator Charles Beirnes who has come to be known as Mr. Charlie. It would appear that the owner/trainer contracts were created and back dated soon after this visit. Number 17, use of cash by Tessier in virtually all of his financial transactions when he was a trainer and finally number eighteen, the frequent telephone contacts between the suspended trainer, his wife and their son with Tessier, in particular the timing of the calls, the apparent clusters of calls on race days.
The concern of the Administration expressed today was that there was no degree of separation between Johnson and Tessier. The Administration necessarily relies upon the cumulative effect of the evidence in support of its case against Johnson.
The case for the Administration, Yves Tessier. Mr. Tessier was a long time employee and friend of the Johnson family. Mr. Tessier's first language is French. He testified in English. He has known Corey, son of Johnson, since Corey was in "the push push". Corey is now 24 years of age. Tessier had been a trainer many years before up until 1990. "I had seven employees. I couldn't control them. I quit". Tessier testified that in 2011/2012 the Colin Johnson Stable had 75 to 80 horses. The stable began to downsize. In 2013 there were thirty horses. Mr. Johnson went to Toronto. Tessier decided in 2013 to become a "small trainer, Me and my wife". Tessier stated that he would return to train "from December, giving myself to June, July but I'm starting at the bottom. I didn't have no equipment at all. Johnson had lots of equipment over. Johnson had no room in the Stevenson Training Centre for his equipment. I didn't know whether he's ..." referring to Johnson, "... coming back." He, Johnson, always left a bike and the long shaft there at the Rideau Carlton Raceway. "Johnson's long shaft there ten to twelve years, why not use it." Other drivers used the bike, the race bike. Tessier stated: "Usually the driver, they have their own bike. If driver didn't have his own bike, it's good bike for the size of the ass of the horse. The driver used the Johnson race bike." There were a few harnesses left by Johnson. Tessier kept the best one to race. When asked about the owner/trainer contract his response: "In Quebec province you don't have that rule." Tessier created contracts, owner/trainer contracts, and back dated them after the 11, March, 2014 visit of Mr. Charlie to, in his words, "to be legal with you people".
The evidence of Tessier, if accepted by the panel, provides reasonable answers or explanations to sixteen of the eighteen factors relied upon by the Administration in its case against Johnson, including use of Johnson's equipment, joggers and race bike and the presence of the old medication and the retention of former employees. Factor seventeen, the use of cash by Tessier and virtually all his transactions in his role as trainer and factor eighteen, the frequent telephone contacts between the suspended trainer, his wife and his son with Tessier, their timing and the apparent cluster of calls on race days are explained, in part, by Tessier.
Other considerations in the evidence of the Administration; there was no evidence of the physical presence of Johnson at the stable during the time frame of the complaint 20, January to 20 March, 2014. There was no evidence of the presence of Johnson at the stable after mid August, 2013. There was no evidence of the presence of Johnson in the province of Quebec after mid August, 2013. There was no evidence that Johnson was involved in jogging, conditioning, warming up or racing any of the racehorses of the Tessier stable. There was no direct evidence of Johnson being involved in the discussion of driving strategy for the horses trained by Tessier. There was no direct evidence tendered which demonstrated that Johnson was involved through Tessier in participation in racing. There were no admissions against interest or confessions by Johnson in relation to the complaint against him made by the Director.
The case for the Administration and rule 26.16. Factor three in the case for the Administration, the head lease remained in Johnson's name, may be considered as evidence of "a business arrangement" within the meaning of section 26.16(a), a business arrangement in which there was no benefit to Colin Johnson of a financial nature but a benefit perhaps in relation to compassion and generosity to a long time employee and good friend. Factors one and two and factors four to eighteen, inclusive, may be considered as evidence within the meaning of section 26.16(h), the basket clause any other relevant matter. There is no evidence in support of the case for the Administration that may be considered in relation to six of the seven mandatory considerations of section 26.16 being subsections (b) to (g) inclusive.
The case for Johnson; on 3, June, 2014 at the hearing of the stay application the evidence presented by the Administration was untested, uncontradicted and unchallenged. On 3, July, 2014 the appellant filed the factum Exhibit 6 and the book of documents Exhibit 7. The panel has accepted as fact in this hearing many of the excerpts from the factum of the appellant, Exhibit 6. In particular, substantial excerpts from Exhibit 6 part 2 entitled relevant facts at paragraphs 9 to 23 inclusive, 25 to 32 inclusive, 34 to 39 inclusive and paragraph 44. These paragraphs include the following: paragraph 19, and I quote "Colin Johnson did not own any of the five horses racing from the Yves Tessier stable and racing under Mr. Tessier's name in the winter and spring of 2014." Paragraph 20, Mr. Tessier during the period of Colin Johnson' expunged suspension January 20, 2014 to March 20, 2014 raced only six horses on 22 separate occasions. These horses were POWER OFF, POWER SHOT, AARON'S MATTJESTY, PEENIE, MEMUMSNOTNICE and MARGARITA MAN. Paragraph 21, POWER OFF and AARON'S MATTJESTY in the subject period and prior were owned by Francois Morin. Paragraph 22, MARGARITA MAN and POWER SHOT in the subject period and prior were owned by Mike Surgi. Paragraph 23, in the subject period and prior Debbie Element owned one half of PEENIE and all of MEMUMSNOTNICE under the registered stable name of Furious Farms. Paragraph 25, Colin Johnson was never the trainer of record for five of the six horses Yves Tessier raced in 2014 at Rideau Carlton. One horse, PEENIE, was trained by Colin Johnson for two starts in September, 2013. After September 2013 PEENIE had thirteen starts with another trainer before the appellant's January 2014 suspension. Paragraph 26, of all the remaining horses in the barn of Yves Tessier being CITY LOFT, GOODGABANDUGLY N, BARE NECESSITY, SUNSET ART, MR. GENESIS and WARRAWEE PROTON were not raced by Yves Tessier and were not "participating in racing" under the name or direction of Yves Tessier or anyone else for the period of January 20, 2014 to March 20, 2014. Paragraph 27, all of these six horses were in a rehabilitation stall rest program after suffering 2013 or earlier racing injuries. Paragraph 28, Colin Johnson was not the trainer of record or prior trainer of any of the subject eleven horses as of the date of his January 2014 suspension. Paragraph 29, Colin Johnson in August, 2013 left Repentigny in Quebec and moved to 87 Skinner Road, Waterdown, Ontario. The appellant began training unraced yearlings and unraced two year olds at the Stevenson Training Centre next to Flamboro Downs in the period of August, 2013 to the present. Paragraph 30, both Yves Tessier and his wife Carol Brown, who we understand the name is Karen, were and have been employed by the appellant for a period in excess of twelve years. After the appellant moved to Ontario in August, 2013 Yves Tessier was left in Quebec with the six "laid off horses" listed in paragraph 26 herein for rehabilitation purposes. Before leaving Repentigny, Quebec to come to Ontario in August 2013 Colin Johnson had rented stall space in three separate barns. The appellant also purchased all the necessary training and racing equipment for an 85 racehorse stable that he had previously operated for a number of years. Much of this equipment, joggers, race bike, trunks, harness bags and other ancillary equipment for a large racing stable was left in three large barns. Colin Johnson had leased three barns, a long term lease, from the training centre owners. Yves Tessier since August 2013 subleased stalls and equipment from Colin Johnson for a monthly rental per horse of approximately $416.00 in barn number three. Paragraph 32, with respect to the six horses Yves Tessier raced at Rideau Carlton in 2014 during the subject relevant period of the appellant's suspension (a) Yves Tessier hired an independent trucker to take his racing stable to Rideau Carlton, as required; (b) Yves Tessier billed and was paid for his training work directly by the owners of the six racing horses; (d) Mr. Tessier during all the relevant periods employed and paid his own blacksmith; (e) Mr. Tessier retained and paid Dr. Eddie McCarvill for the required veterinary work on racing horses in his stable for the January to March 2014 relevant races; (f) the appellant has his own separate blacksmith to affect all the necessary farrier work on the six laid off horses being "being rehabed" by his employee Yves Tessier; (g) Corey Johnson was the trainer of record of PEENIE and MEMUMSNOTNICE at the start of the relevant period. He rendered and was paid monthly training accounts to Furious Farms, his mother, and another unrelated owner for both PEENIE and MEMUMSNOTNICE for October, November, December 2013, January and part of February 2014; (h) Yves Tessier rendered training accounts and was paid by the respective owners of PEENIE and MEMUMSNOTNICE for a portion of the February 2014 and a portion of March 2014 when these two horses were sent to Mr. Tessier from Corey Johnson's stable for four race starts; (i) when both PEENIE and MEMUMSNOTNICE were racing in the Ontario based Corey Johnson stable from October 2013 to mid February 2014 all blacksmith and vet work for their horses was invoiced to and paid by their trainer Corey Johnson; (j) with respect to any dealings with the race office and entries for the six horses racing out of Yves Tessier's stable Mr. Tessier made all such decisions regarding classification. He thereafter made his own entries and calls to the race office. Paragraph 34, the appellant had leased three barns being barns 3, 4 and 5 for many years. Barns 4 and 5 were occupied by Yves Tessier or his horses, had since August 2013 the following characteristics (a) "Johnson harness bags hanging in front of stalls"; (b) "Johnson tack boxes in front of stalls occupied by horses"; (c) "Johnson joggers, blankets and feed pails situate within the barn". Paragraph 35, with respect to the labelled bronchial dilater medication located in Mr. Tessier's barn in the ORC search and out of competition testing on March 11, 2014, see paragraph 12 of the complaint, this medication was prescribed by Dr. McCarvill to Colin Johnson for the horse WARRAWEE PROTON. Given that Colin Johnson was paying Mr. Tessier a salary both before and after the rescinded suspension to care for and rehabilitate WARRAWEE PROTON. Paragraph 36, the yellow Colin Johnson race bike shown in winner's circle photographs in both the Administration's book of documents, see tab 7 sub 3, and the appellant's book of documents, see tab 12, had been left by the appellant at the Rideau Carlton paddock for many years from the days when the appellant raced his 85 horse stable at numerous and various tracks. Many trainers and drivers utilized this race bike, along with Colin Johnson's jogger, again left for many years by the appellant in the Rideau Carlton paddock area. Paragraph 37, with respect to the phone records of the appellant Colin Johnson in the relevant period and even earlier made no calls to the Rideau Carlton race office while Yves Tessier had 33 calls to the race office. Paragraph 38, Yves Tessier apparently made 24 calls to Colin Johnson between September 29, 2013 and February 8, 2014. The appellant was paying Mr. Tessier a salary for the care of six laid off horses. Additionally, Colin Johnson made twelve telephone calls to Yves Tessier in the six months from September 2013 to March 2014. Paragraph 39, the appellant was never in the Yves Tessier barn from the date of his expunged O-desmethylvenlafaxine suspension until its revocation. Paragraph 44, with respect to all of the six race horses being raced by Mr. Tessier at Rideau Carlton during the period of the appellant's suspension the following is the documented evidence with respect to the criteria of rule 26.16. (a) Yves Tessier hired and paid for Dr. McCarvill's veterinary services for the racing horses. Yves Tessier hired and paid for his own trucking of the racing horses to Rideau Carlton. Yves Tessier billed the owners in his own name and was paid by them. Yves Tessier leased training centre stalls and feed and paid Colin Johnson as the head lessee of barn 3 and other barns at the training centre. Yves Tessier did all the communication with the race secretary at Rideau Carlton and Colin Johnson had no such communications. (c) Yves Tessier had day to day care of all the racing horses at the training centre. Colin Johnson was training nine yearlings at the Stevenson Training Centre in Ontario some 600 plus kilometres distance from Yves Tessier's operation. (d) Yves Tessier did all his own race day preparation and accompanies his horses to the track. Neither Linda Belanger nor Jessica Turenne were employees of Colin Johnson at any date in 2014. Ms. Belanger and Ms. Turenne did freelance cash paddock services for Mr. Tessier. (g) Yves Tessier had one training centre venue in Quebec. The appellant did not travel the 600 plus kilometres from his operation next door to the Flamboro Downs during the period of his now rescinded suspension and finally, to the relief of all, paragraph 34(d) a lot of Colin Johnson's racing and training equipment that he didn't take to Ontario in August 2013 because there was no room left for it so he left it there.
Today we received information in relation to the entry box at Rideau Carlton Raceway for Sunday racing. The entry box closed on the preceding Thursday at 10:00 a.m. We learned as well that Colin Johnson subscribed to two services which permitted him to view races throughout North America on HPI Racing Network which has had service for ten years and access to the Rideau Carlton races on Sundays through Bell Express Vu and Racing Day Network which he has had for five to six years assists in placing into perspective the analysis of the telephone calls on Sunday evenings after races at Rideau Carlton Raceway. We had the benefit of telephone record analyses on a number of the race days where Yves Tessier raced multiple horses at Rideau Carlton Raceway on Sundays. There are no calls between Colin Johnson and Yves Tessier on the entry day, the Thursday preceding. Other calls made on either entry day or race day have been explained in the evidence.
Assessment of evidence, credibility and reliability. The panel accepts the testimony of Charles Beirnes, investigator, as credible and reliable. The panel does not share the substantial opinion evidence of the gentleman who is now come to be known as Mr. Charlie. The panel accepts the evidence of Yves Tessier, trainer, as credible and trustworthy. The panel accepts the evidence of Colin Johnson as credible and trustworthy. These three gentlemen were the three witnesses and all testified from our perspective in full and fair fashion but from rather markedly different perspectives.
The issue, the question, did the Administration prove on a balance of probabilities that Colin Johnson, while his licence was under suspension, participated in racing as a shadow or hidden trainer through Yves Tessier and thus violated rule 6.10.01 of the Rules of Standardbred Racing. The answer, and the answer is no.
The decision, the burden of proof is on the Administration. The burden of proof is on a balance of probabilities. The evidence relied upon must be clear, cogent and compelling. The evidence is clear and cogent. The evidence in relation to the case for the Administration is not compelling. The Administration has not met the burden of proof upon it. The immediate suspension as it applies to Colin Johnson is vacated and the application for the notice of proposed order is dismissed and that is the ruling and I violated the curfew only by four minutes. Are there any questions from counsel?
MR. TODD: Mr. Chairman, I just make one further request and I mention it in passing. Mr. Johnson's birthday passed. He is not licensed now and it would be of great assistance if someone at the Administration would phone the licensing office at Mohawk and advise him that Mr. Johnson is entitled to apply for a licence this evening or as soon as he can get there because of the import of your reasons won't be out for two or three days through the actual de facto licensing people. If you could just direct that, that's all that is required. Somebody could make a phone call.
MR. CHAIRMAN: Is there anyone still within the building who can communicate a decision of that nature?
MR. TODD: Mr. Beirnes, if he would undertake a thirty second phone call could do the job for us.
MR. CHAIRMAN: Mr. Charlie is an honourable gentleman and very reliable individual and if it can be done I would expect he would assist.
MS. FRIEDMAN: It will be done.
MR. TODD: Thank you very much.
CERTIFIED CORRECT __________________________________
RAYMOND P. MACDONALD, B.A., CVR Commissioner of Oaths