Gabriella Sasso and Ronald Adams v. Ontario Racing Commission, 2014 CanLII 38666

AMENDED RULING NUMBER COM SB 017/2014

COMMISSION HEARING TORONTO, ONTARIO – JUNE 6 & 9, 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 and Ronald Adams (“the Appellants”) appealed against the:

(i) Rulings which placed holds on purse monies made on February 7, 2014, by the Track Judges.

(ii) Orders of Immediate Suspension made on May 20, 2014, by the Director;

and the

(iii) Notices of Proposed Orders of Suspension made on May 20, 2014, by the Director

On June 6 and 9, 2014, the Appellants made Application for the following:

(i) Stays of the Orders of Immediate Suspension;

and

(ii) Stays of the holds on purse monies.

Dates of Hearing: June 6 and 9, 2014

ORC Panel: Anthony Williams, Vice Chair

Representatives for the Appellants: Donald Leschied, Counsel,

Brian Tropea, General Manager,

Ontario Harness Horse Association

Representative for the Administration

of the Ontario Racing Commission: Jennifer Friedman, Counsel

Decision:

(i) The Applications for stays of the Orders of Immediate Suspension were denied;

and

(ii) The Applications for stays of the holds on purse monies were denied.

The hearing of the Notices of Proposed Orders is set for July 21 and 22, 2014.

DATED at Toronto, this 17^th day of July 2014.

Steven Lehman

Executive Director

REASONS FOR INTERIM DECISION

OVERVIEW

1. Gabriella Sasso (“Sasso”) is licensed by the Ontario Racing Commission (“ORC”) as an owner and trainer of standardbred (“SB”) race horses, licence # OA7129.

2. Ronald Adams (“Adams”) is licensed by the ORC as a trainer of SB race horses, licence # W8487.

3. 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 as follows:

(i) Sasso – SB 46018

“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.”

and

(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 Adam’s (sic) horses that he is racing.”

4. On March 19, 2014, the appeals against the Rulings were heard by a panel of the ORC.

5. On March 27, 2014, the applications for stays of the Rulings were denied by the panel, without prejudice to subsequent applications based upon a change in circumstances, RULING NUMBER COM SB 003/2014.

6. On April 25, 2014, the Investigators provided their final report to the Deputy Director of the ORC.

7. On May 20, 2014, the Director of the ORC issued the following Notices:

(i) Notices of Orders of Immediate Suspension against Sasso and Adams;

and

(ii) Notices of Proposed Orders against Sasso and Adams.

8. On May 20, 2014, Sasso and Adams filed Notices of Appeal against these Orders.

9. A preliminary hearing was held on June 6 and 9, 2014, before a panel of the ORC.

10. The Appellants made three requests at the hearing:

(i) an opportunity to review all redactions in the disclosure materials;

(ii) a stay of the Rulings which held their purse monies; and

(iii) a stay of the Orders of Immediate Suspension.

11. Decisions on these three requests were reserved.

12. The first request, (an opportunity to review all redactions in the disclosure materials) was addressed in two Interim Rulings:

(i) Sasso and Adams v. ORC, RULING NUMBER COM SB 014/2014, issued June 19, 2014;

and

(ii) Sasso and Adams v. ORC, RULING NUMBER COM SB 016/2014, issued June 24, 2014:

and was allowed in part.

13. The second request, (a stay of the February 7, 2014 Rulings which held their purse monies) and the third request, a stay of the Orders of Immediate Suspension)’ were addressed in this Decision.

THE HEARING

14. This was a hearing “de novo”, or fresh hearing.

15. The proceedings were combined on the consent of the parties, pursuant to Rule 10.1 of the Rules of Procedure.

16. No witnesses were called.

17. Five documents were filed as exhibits:

Ex. 1 (a) Book of Documents, Ron Adams, Volume 1 of 2

prepared by the Administration, pp 1 to 281, Tabs 1 to 9;

Ex. 1 (b) Book of Documents, Ron Adams, Volume 2 of 2

prepared by the Administration, pp 282–531, Tabs 9 (E to H) to 22;

Ex. 2 Book of Documents, Gabriella Sasso

prepared by the Administration, pp 1 to 390, Tabs 1 to 20;

Ex. 3 Book of Authorities

prepared by the Administration, Tabs 1 to 11;

Ex. 4 Book of Documents and Book of Authorities

prepared by the Appellants, Tabs 1 to 23;

Ex. 5 Letter from counsel for the Appellants, dated June 12, 2014,

which enclosed two decisions In The Matter of Regina v. Ontario Racing Commission, Ex parte Taylor from:

(i) The Ontario High Court of Justice, dated February 9, 1970;

and

(ii) The Ontario Court of Appeal dated July 11, 1970.

THE RULES OF ENGAGEMENT

18. (i) The Racing Commission Act (“the Act”)

“Objects

5. The objects of the Commission are to govern, direct, control and regulate horse racing in Ontario in any or all of its forms.

Duties

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.

Powers

7. 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, 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;

(e) to prescribe the form of licences and the conditions under which they may be issued, continued or renewed;

(k) to hold hearings relating to the carrying out of its objects or powers, to establish the procedure for the hearings and to require, by a summons signed by the chair or by another member of the Commission, a person to give evidence on oath and to produce the documents and things that the Commission considers requisite in a hearing;”

19. The Rules of Standardbred Racing

1.02 “Standardbred racing shall be conducted in accordance with the rules, Commission directives, conditions of licences granted by the Director or the Commission, track rules approved by the Director, any other applicable laws and regulations. In case of a conflict the Rules of Standardbred Racing shall supersede the conditions of a horse race and the regulations of the Association.”

1.09 “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. Provided however, the Commission in its absolute discretion may waive the breach of any of the rules, which waiver or breach the Commission does not consider prejudicial to the best interests of racing.”

6.10.01 “Whenever a suspension is prescribed it shall be construed to mean an unconditional exclusion from the grounds of all associations where a licence is required and 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.”

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.”

26.16 “In determining the identity of the actual trainer of a horse the Judges shall consider the following:

(a) the identity of the person who is responsible for the business decisions of the training or racing stable including, but not limited to, business arrangements with and any payments to or from owners or other trainers, licensed or otherwise, veterinarians, feed companies, hiring and firing of employees, obtaining worker’s compensation or proof of adequate insurance coverage, payroll and horsemen’s bookkeeper;

(b) the identity of the person responsible for communicating with the racing secretary’s office, the stall manager, the Racing Association and the owners regarding racing schedules;

(c) the identity of the person responsible for the conditioning of a horse or horses;

(d) the identity of the person responsible for race day preparation including but not limited to accompanying the horses to the paddock, selection of equipment, authority to warm up horses before the public, and discussion of driving strategy;

(e) the total number of horses in the control of the training or racing stable;

(f) the number of active licensed trainers on the payroll of the training stable;

(g) the number of different stabling locations; and

(h) any other relevant matters.”

20. General Principles

(i) Licence a privilege

A licence is a privilege, not a right

Re: Manneke, Gerald [2009] O.R.C.D No. 29, August 20, 2009, at para. 26, RULING NUMBER COM SB 020/2009

(ii) Public Interest

The ORC, as a regulator, must perform its duties

(a) In the public interest: with the fundamental interest to protect the industry.

The public interest centres on the overall well-being of racing. The indispensable component is integrity.

Re: Chiaravalle, Antonio and Woodbine Entertainment Group [2008] O.R.C.D. No 18,

RULING NUMBER COM SB 027/2008;

(b) “Integrity is the fuel upon which horse racing rides. No integrity, no future for racing and the thousands of hardworking licensees who depend on it for their livelihood.

The Director serves as the gatekeeper in protecting both the industry and the horse …”

Re: Czupa, 2012 Can LII 92269 (ONRC); COM SB 010/2012; SB 44628, April 2, 2012, Ex. 3, Tab 5, at p. 6, paras. 26 and 28.

(iii) Standards of Conduct

(a) Participants in the industry must fulfil rigorous standards of conduct.

Re: Martino, Nick [2000] O.R.C.D. No. 20, June 23, 2000, at para. 30

Series No. SB 178, 2000.

(b) Vigilance

Protecting the public interest in lawful regulated gaming requires constant vigilance and the exclusion of those who might reasonably be expected to seek improper gain or in any way stray from the highest standards of honesty and integrity and thereby bring the industry into disrepute.

Re: Schickedanz, Bruno [2001] O.R.C.D. No. 25, July 10, 2001, at para 38,

Series No. COM TB 9/2001.

… “… 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 trading 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 24-14, para 25 and at p 24, para 64.

21. The Stay

(i) Policy re: Stays

“11. The Commission developed a no stay policy unless extraordinary circumstances were demonstrated via cogent and compelling evidence. The impetus for the policy, as put forth by the appellant, was to deal with medication issues. However, on implementation, it was the express intent of the Commission to apply the policy on a broad basis to protect both the good of racing and the public interest as needed. The Director has followed that policy as precedent cases aptly demonstrate.” …

(ii) Three tests

“17. There are three tests for a stay. They are as follows: (a) is there a serious mitigating factor? (b) where does the balance of convenience lie? and (c) where is the public interest?”

(iii) Onus on Appellant

“18. The onus was on the appellant to demonstrate via cogent, compelling reasons why the motion should be granted. No serious mitigating factor was put forward by the appellant with any cogent, compelling evidence. No extraordinary case was put forward as required. An alleged loss of income to the individual is not, in of itself, a compelling reason when balanced against the potential harm to racing in general, to other licensees and the health and safety of the horse or the public interest.”

Re: Czupa, Ex. 3, Tab 5, at pp 4-5, paras 11, 17 and 18

(iv) 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.

For clarification, the Ontario Racing Commission advises that the Director does not have the statutory authority to issue stays of Immediate Suspensions. Immediate Suspensions are used only in the most serious circumstances which the Director believes affects the integrity of racing. (emphasis added) The Racing Commission Act provides an Appeal of the Director’s decision to issue an Immediate Suspension to a Panel of the Ontario Racing Commission.

General Directive No. 7/2007 – Granting of Stays, ORC, October 30, 2007,

Ex. 3, Tab 3, at pp 1–2

22. Direct and Circumstantial Evidence

“Notes on Use

Many if not most criminal cases include both direct and circumstantial evidence. This final explains the difference between the two kinds of evidence and makes it clear that they deserve equivalent consideration.

The essential difference between direct and circumstantial evidence lies in the number of inferences required to reach a finding of fact from their introductions.

Direct evidence is evidence which, if believed, resolves a fact in issue. The only inference is that the witness is telling the truth.

Circumstantial or indirect evidence is any item of evidence, whether testimony or exhibit, other than the testimony of an eyewitness to a material fact. It is any item of evidence from the existence of which the trier of fact may infer the existence of a fact in issue. An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established at trial.

In cases that are largely circumstantial, it may be helpful to introduce the term “inference”, and to distinguish it from speculation. Jurors should also understand that it is the cumulative effect of all the evidence that must meet the standard of proof beyond a reasonable doubt, not each individual item of evidence”

Direct and Circumstantial Evidence,

Notes on Use, Watt’s Manual of Criminal Jury Instructions,

David Watt, 2005, Thomson & Carswell, at p. 156

23. Orders of Immediate Suspension

(i) An Order of Immediate Suspension is to be used “only in the most serious circumstances which the Director believes affect the integrity of racing.”

(ii) The issuance of an Order of Immediate Suspension, by the Director, does not automatically protect the Order from either variation or reversal.

(iii) A panel which hears a stay application must determine, before it considers the merits of the application,

1. Whether there is a reasonable prospect of conviction upon the charge;

2. Whether the prosecution is in the public interest.

3. The Rule in Hamather

“28.The stated justification underlying WEG’s rejection of entries is capsulized by Jamie Martin’s responses in evidence to the effect:

• “If one horse was treated with EPO, we (WEG) believe in all likelihood other horses were so treated.”

• There is a strong potential other horses could be treated with the same drug.”

• I believe if it was used on one it was used on many.”

29. WEG has done well in protecting racing but neither is it infallible. Nor in its zeal for deterrence to protect integrity or to rid the Robinson Connection should it sacrifice those not demonstrated to have done wrong.

30. There can be no public interest in permitting overzealous tactics in the war against illegal substances to ride roughshod over the rights of licensees who have done nothing wrong. That is too close to the trial of Jesus and Pontius Pilate’s declaration:

• “I find no wrong done by this man.”

• And and the crowd’s response:

• “Crucify him, Crucify Him.”

31. The WEG commitment to protect integrity and possibly to purge the Robinson Connection cannot ratify punitive measures based on suspicion.

32. WEG was suspicious of Elliott. So Elliott’s horses went into retention. No other sanction was imposed on Elliott, presumably because suspicion could not justify a penalty. That virtuous criterion was not extended to the applicants. Could the imposition of their penalty supported only by suspicion have the appearance of a double standard?

33. As was stated in Hudon:

“Offenders should be identified and dealt with according to the measure of the wrong doing but only in accordance with principles of honesty, integrity and social responsibility which are required of the Racing Commission.”

34. The public interest in racing includes:

• An industry viable and self-sustaining.

• Racing competitive but fair, free of any form of cheating.

• Opportunity by licensees to participate freely, openly and honestly within the rules.

• Open-handedly and fairly dealing with all licensee matters coming before the Regulator.

• Principles of due process and protection against imposition of penalty absent fault.”

In the Matter of the Appeal of Standardbred Licensees Robert Hamather, Lloyd Nicholson, Gary Smith and Geoffrey Mound and Woodbine Entertainment Group

RULING NUMBER COM SB 017/2008, paras 28–34 of the Ontario Racing Commission, June 18, 2018, Ex. 4, Tab 19

25. The Person Who Hears Must Decide

(i) The Law

(a) …It is basic that persons entrusted to judge or determine the rights of others must, for reasons arrived at independently, make that decision whether it or the reasons be right or wrong. It was wrong for the Commission, who were the judges, to privately involve either party in the Commission’s function once the case began and certainly after the case was left to them for ultimate disposition. To do so must amount to a denial of natural justice because it would not unreasonably raise a suspicion of bias in others, including the appellant, who were not present and later learned what had transpired. In the circumstances justice does not appear to have been done and the decision cannot stand. I refer to The King v. Sussex Justices, [1924] IK.B. 256, and R.W. Salford Assessment Committee, [1937] 2 All E.R. 90 at p 103

… justice cannot appear to have been done when the determination of how a case was decided depends, not upon the reasons over the real author, but rather upon the affidavit of a person who actually wrote the reasons and who now must explain how his thought were accepted after the decision of the tribunal.”

Sawyer and Ontario Racing Commission [1979] O.J. No. 4236 (O.C.A.) May 28, 21079 at paras 8 and 12, Ex. 4, Tab 17 at p 4

(b) The procedural provisions … are simply designed to give effect to the principle audi alteram partem – the right to notice and hearing before a statutory tribunal which has the function of making a “decision” as to “guilt” which is an integral part of the final decision …”

Emerson and Law Society of Upper Canada [1983] O.J. No. 3287, at para 34, Henry J., Ontario, High Court of Justice, January 25, 1984, Ex. 4, Tab 8

26. The Right to a Hearing

The Law

“… The procedural provisions … are … designed to give effect to the principle audi alteram partem, … the right to notice and hearing before a statutory tribunal which has the function of making a ‘decision’ as to ‘guilt’ …”Emerson and Law Society of Upper Canada [1983] O.J. No. 3287 at para 341, Ontario High Court of Justice, January25, 1984, Ex. 4, Tab 18.

THE EVIDENCE

27. No witnesses were called upon the stay application.

28. The evidence was submitted in documentary form, through five exhibits.

29. The case for the Administration included the following:

(i) Investigative Reports;

(ii) Notebook entries of Investigators;

(iii) Senior Judges Report and Rulings;

(iv) Racelines of the Appellants

(v) Interviews of the Appellants;

(vi) Audio interviews of five drivers and one owner;

(vii) Business records of the Appellants including cellular telephone records and banking records;

(viii) Analysis of telephone records;

30. The evidence was both direct (owner) and circumstantial. The vast majority of the evidence was circumstantial.

31. The Interim Applications required decisions as to whether documentary evidence is sufficient to demonstrate that there is:

(i) a reasonable prospect of conviction;

(ii) that it is in the public interest to proceed;

(iii) that a stay of the suspension is appropriate;

(iv) that a stay of the hold on the purse monies is appropriate.

32. Rule 6.10.01 requires that a suspension “shall be construed to mean an unconditional exclusion from the grounds of all associations where a licence is required and disqualification from any participation, either directly or indirectly, in racing …”

33. SB Rule 26.16 sets out seven mandatory considerations and one “basket clause” for the determination of “the identity of the actual trainer of a horse”.

26.16 In determining the identity of the actual trainer of a horse the Judges shall consider the following:

(a) the identity of the person who is responsible for the business decisions of the training or racing stable including, …;

(b) the identity of the person responsible for communicating with the racing secretary’s office, …;

(c) the identity of the person responsible for the conditioning of a horse or horses;

(d) discussion of driving strategy;

(h) any other relevant matters.” (emphases added)

34. The analysis of the telephone records reveals patterns of behavior for both Appellants from which inferences may be drawn, there being no evidence to the contrary. The factors of interest include the following:

(i) the number of calls

(ii) the time of day

(iii) the duration

(iv) the frequency

(v) the sequence

(vi) the cluster, and

(vii) the juxtaposition of calls, to or from the suspended trainer to significant events involving “participation in racing”:

• calls to different tracks to enter horses in races;

• contact with Standardbred Canada (claiming of a horse);

• contact with the ORC (following a barn search);

• contact with an owner following the races in which the owner’s horse participated; and

• calls on race dates when horses trained by the Appellants were scheduled to race.

Sasso (i) Phone record and analysis of Ron Adams (SC # W8487) and Gabriella Sasso (OA712), dated April 25, 2014, Book of Documents, Ex. 2, Tab 13, at pp. 335-346 and (ii) Trainer Investigation Gabriella Sasso #OA71, dated April 25, 2014 (Final Report Ex. 2, Tab 14, at 350-351. Adams (i) Phone record and analysis of Ron Adams (SC # W8487) and Gabriella Sasso, dated April 25, 2014, Ex. 1 (b), Tab 15 at pp. 474-485 (ii) Trainer Investigation – Ronald Adams #8487, dated April 25, 2014 (Final Report) Ex. 1 (b), Tab 16, at pp. 490-491

35. Conditioning of horses (SB Rule 26.16 (c) “on a number of occasions” at the training centre, Adams requested that the suspended trainer do a “fast mile” with racehorses, which were racing at the time and for which Adams was the trainer of record.

36. Discussion of Driving Strategy SB Rule 26.16 (d). The suspended trainer was identified as discussing “driving strategy” with the drivers of the horses of both Sasso and Adams. No apparent discussion of driving strategy was discussed by the drivers with either Sasso or Adams, the trainers of record.

37. Other relevant matters, SB Rule (26.16 (h))

• Both Appellants were long-time acquaintances of the suspended driver;

• Both Appellants had their stables in the same shed row as the suspended driver (relevant only to opportunity, not to guilt by association);

• The suspended trainer was very involved in that end of the barn;

• The suspended trainer was involved “a lot” with the stable of Sasso;

• The appellants always shipped together; Sasso stated that she goes to the track with Ron (Adams) “90% of the time”, and that she “paddocks” the horses and he (Adams) warms them up.”

38. Integrity

The Owner

“I think the sport needs integrity, without integrity, we have nothing.

One of the issues that plagues harness racing is people under suspension not serving their suspensions.”

Interview of Owner, Sasso, Ex. 2, Tab 10, Audio of Owner/Driver Interviews; Adams, Ex. 1 (b), Tab 14, Audio of Owner/Driver

THE ISSUES

DECISIONS ON ISSUES 1 to 16 to follow

39. ISSUE 1

Reasonable Prospect of Conviction

Q. Is there a reasonable prospect of conviction, based on admissible evidence, that the Appellants aided, abetted or facilitated the “participation, either directly or indirectly, in racing” of a suspended trainer, in violation of SB Rule 6.10.01?

A. Yes.

40. ISSUE 2

Public Interest

Q Is it in the public interest to proceed with these Notices?

A Yes.

The protection of the public interest in ensuring the integrity of horse racing requires a hearing of these Notices on their merits.

41. ISSUE 3

Stay of Immediate Suspension Order

Q Is a stay of the Orders of Immediate Suspension appropriate?

A No.

(i) An Order of Immediate Suspension is to be used:

(a) “only in the most serious circumstances

(b) which the Director believes affects the integrity of racing.”

(ii) The issuance of an Order of Immediate Suspension, by the Director, does not automatically protect the Order from either variation or reversal;

(iii) A panel which hears a stay application, must determine, before it considers the merits of the application,

(a) whether there is a reasonable prospect of conviction upon the charge;

and, in addition,

(b) whether the prosecution is in the public interest.

42. If the panel decides that both of these conditions precedent have been met, the panel must then decide the stay application on its merits.

43. There is a reasonable prospect of conviction upon the NOPs.

44. The prosecution of the NOPs is in the public interest.

45. The Appellants have not demonstrated that there are exceptional circumstances which would justify a stay of the Orders of Immediate Suspension.

46. The Applicants have not presented “clear, cogent and compelling” evidence on this issue.

47. The Immediate Suspensions remain appropriate pending completion of the hearings for the NOPs, set to commence on July 21, 2014, subject to the discretion of the hearing panel, based on a change of circumstances.

48. ISSUE 4

Stay of Hold on Purse Monies

Q. Is a stay of the Rulings holding the purse monies appropriate?

A. No.

The Administration has met the burden of proof upon it, to demonstrate that the holds placed upon the purse monies, to which the Appellants would ordinarily be entitled, was an appropriate use of Rule 1.09 of the Rules of SB. Racing, in the public interest, and remains appropriate pending the completion of the hearings for the Notices of Proposed Orders, set for July 21 and 22, 2014.

49. ISSUE 5

Impact of Appeal

(i) “Appeal operates as stay, exception

25.1 An appeal from a decision of a tribunal to a court or other appellate body operates as a stay in the matter unless,

(a) another Act or regulation that applies to the proceeding expressly provides to the contrary; or

(b) the tribunal or the court or other appellate body orders otherwise.”

Statutory Powers Procedures Act, R.S.O. 1990, Chapter 22, section 25.1 (a) and (b)

(ii) The ORC Directive no. 7 for 2007

“expressly provides to the contrary” to the general rule that an appeal operates as a stay.

“…For clarification, the Ontario Racing Commission advises that the Director does not (emphasis added) have the statutory authority to issue stays of Immediate Suspensions. Immediate Suspensions are used only in the most serious circumstances which the Director believes affects the integrity of racing. The Racing Commission Act provides an Appeal of the Director’s decision to issue an Immediate Suspension to a Panel of the Ontario Racing Commission.”

General Directive No. 7/2007, Granting of Stays, October 30, 2007, Ex. 3, Tab 3, at p 2

50. The filing of the appeals did not stay the Immediate Suspensions.

51. ISSUE 6

The Charging Document – Validity

(iii) The Charging Documents for each Appellant follow the same format. Each faces:

(i) “A. Order of Immediate Suspension” supported by “B. Reasons for Immediate Suspension Order (a), (b), (c), (d)”. Other than the names of the licensees, the documents are identical.

(ii) In addition, each Appellant faces “C. Notice of Proposed Order to Suspend the Licence “the NOP”), supported by “D. Reasons for Proposed Order (a), (b), (c), (d)”. Other than the names of the licensees, the documents are identical.

(iii) What raises the charging documents from the general, to the particular, is, for Sasso, “Part E. Particulars”, at Ex. 2, Tab 15, pp 360–65 inclusive, paras 1–7, and for Adams, “Part E. Particulars”, at Ex. 1(b), Tab 17, pp 500–506, paras 1–38 inclusive.

52. The generic wording in parts of the charging documents does not affect their validity.

53. ISSUE 7

Hybrid Notice

Each Appellant faces two Notices in a single charging document:

(i) a Notice of Immediate Suspension;

and

(ii) a Notice of Proposed Order.

54. There is a nexus in each set of Notices between time, place and type of impugned conduct alleged against each Appellant.

55. The hybrid Notices in a single charging document is proper.

56. ISSUE 8

Joinder of Hearings

“Combined hearing

(5) If the Director makes an order under this section (Immediate Suspension section 23) with respect to a licensee before a hearing is held under section 22 (Director’s proposed order) with respect to a notice of proposed order that the Director has served on the licensee, the panel may hold only one hearing to deal with both the order made and the proposed order.”

Racing Commission Act, s. 23 (5)

57. This Ruling has already decided the Notices of Immediate Suspension are not appropriate for stays, pending the hearing of the NOPs. The two Notices for each Appellant (Immediate Suspension and Proposed Order) will not be heard separately from one another, although not so required by the Act. No issue remains as to different onuses at the July 21 and 22, 2014 hearing.

58. ISSUE 9

The Bank Visit

(i) On February 13, 2014, the investigators obtained banking records for Adams at Windsor Ontario.

The SB Rules provide for the production of both

(a) “documentary evidence, SB Rule 6.28,

and

(b) “documentary disclosure”, SB Rule 6.29, by “licensees” and “participants”.

(ii) The February 18, 2013 Application for Standardbred Licence Renewal, by Adams, contained the following Declaration:

DECLARATION

I hereby agree to abide by the Rules of Racing of the Ontario Racing Commission (the “Commission”) and to accept and abide by the rulings and decisions of the Commission, the Judges and Racing Officials, as the case may be, and I consent to the publication of such decisions and rulings to the press and to the public. And I further agree upon the request of the Commission or the Judges, to be fingerprinted by the duly authorized official of the Commission or the Judges and that my fingerprints may be used and transmitted for identification, investigative and record purposes by the Commission and custodians of fingerprint records. I do fully understand that further investigation may be conducted by the Commission and that the Commission reserves the right to revoke any licence issued on notice.

Notice and Consent - as required by the Freedom of Information and Protection of Privacy Act

In conformity with the Racing Commission Act, in order to complete or verify the information provided on this form and to determine eligibility for licensing, it may be necessary for the Ontario Racing Commission (the “Commission”) to collect and receive additional information from some or all of the following domestic and foreign sources: federal, provincial, state or municipal licensing bodies and police services, other law enforcement agencies, sheriff’s offices, the Registrar of Bankruptcy, credit bureau, trust companies, banks, (emphasis added) professional and industry associations, former and current employers, and any government Ministry or Agency. The Commission is required under the Freedom of Information and Protection of Privacy Act to protect the confidentiality of such information in its possession and control and to use the information only for purposes for which it is collected or for consistent purposes. A public official who can answer questions about the collection and disclosure of information is the Director of the Commission, at the address above.

59. The acquisition of the banking records by the investigators was reasonable in the circumstances.

60. ISSUE 10

The Interview at Lasalle

(i) On March 22, 2014, counsel was in attendance at the Lasalle police station for Sasso’s interview by the investigators.

(ii) The recollections of the participants would appear to differ as to:

(a) the contents of a computer screen; and,

(b) the conversation that followed the view of the screen

61. The resolution of these differences must await the hearing of evidence and the submissions of counsel.

62. ISSUE 11

The Suspension

(i) On December 21, 2010, Christopher Haskell (“Haskell”), trainer, was suspended by the Deputy Director of the ORC “pending the outcome of criminal charges and investigation by the Ontario Racing Commission.” RULING NUMBER COM SB 21/2010.

(ii) SB Rule 6.10.01 states as follows:

“Whenever a suspension is prescribed it shall be construed to mean an unconditional exclusion from the grounds of all associations where a licence is required and 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.”

(iii) SB Rule 6.13.01 states as follows:

“A horse shall not be eligible to be entered to, or start in any race, if owned or controlled in whole or in part, by a suspended, disqualified, unlicensed or ineligible person.”

(iv) In the proceedings against Sasso and Adams, the Administration alleged that Haskell continued training activities, which were prohibited by virtue of his suspension and that these activities were facilitated by the Appellants.

(v) (a) Counsel for the Appellants provided a transcript of the Reasons for Judgment In The Matter Of Her Majesty The Queen v. Derek Riesberry (“Riesberry”), a decision by Mr. Justice Rogin, of the Superior Court of Justice, for the Province of Ontario, at the City of Windsor, in the County of Essex.

(b) Riesberry was found not guilty of the criminal charges against him.

(c) However, Riesberry was found to have engaged in serious, unsavoury conduct involving racehorses, at the Windsor Racetrack.

(d) Counsel advised:

(i) that the criminal allegations against Haskell are similar to those against Riesberry; and

(ii) that the Riesberry judgment will have “grave implications” for the criminal case against Haskell, which has yet to be heard.

(iii) Counsel advised that the Crown Law Office of the Ministry of the Attorney General for the Province of Ontario has appealed against the acquittal of Riesberry.

The foundation for the Haskell suspension was in effect through the 2013-2014 time frame of the proceedings against Sasso and Adams.

The foundation for the Haskell suspension remains in effect.

The judgment in Riesberry does not operate as a barrier to these proceedings.

63. ISSUE 12

The Rule in Hamather (Guilt by Association)

The Appellants submitted that:

(i) “when (the ORC) added suspicion to rumour … (the result is an) immediate suspension”; and,

(ii) the investigators and the Director violated “the ‘rule’ of Hamather” (a prohibition against imposing sanctions based on mere suspicion);

and

(iii) the investigators and the Director relied only upon “guilt by association” with a suspended trainer, to sanction the Appellants.

64. Unlike Hamather, the NOPs are not based upon mere suspicions.

65. There is a foundation in the evidence for the Notices.

66. There is a reasonable prospect of conviction based upon the evidence.

67. This submission fails.

68. ISSUE 13

The Person Who Hears Must Decide

“The Decider”

(i) On May 20, 2014, the Director for the ORC issued two Notices against each Appellant. The Appellants submit that the “Director did not make his own decision. The Director was entitled to seek legal advice from counsel before a decision was made as to whether charges were appropriate against either Sasso and Adams or both. Unlike the Sawyer matter, the case

(a) had not begun before a panel;

(b) nor had the case been left to the panel for ultimate decision.

(ii) There is no evidence that counsel for the ORC usurped the decision making powers of the Director.

(iii) There is no evidence to support breach of a procedural right of the Appellants.

69. This submission fails.

70. ISSUE 14

The Right to a Hearing

(i) The Law

“… The procedural provisions … are … designed to give effect to the principle audi alteram partem, … the right to notice and hearing before a statutory tribunal which has the function of making a ‘decision’ as to ‘guilt’ …”Emerson and Law Society of Upper Canada [1983] O.J. No. 3287 at para 341, Ontario High Court of Justice, January25, 1984, Ex. 4, Tab 18.

(ii) The decision by the Director to issue Notices of Immediate Suspension and Notices of Proposed Orders are not decisions as to guilt as in Emerson and the Law Society of Upper Canada.

(iii) The decisions have the potential to have a serious negative impact upon a licensee.

(iv) The letter of counsel.

No further interviews were sought nor charges brought. The continued seizure of purse accounts of both seriously prejudices their livelihood, as does the welfare of their horses and the ongoing training on behalf of their owners.

I look forward to the release of the suspended purse accounts to both licensees and confirmation that with your consent, this appeal will be allowed and their files closed” (emphasis added)

Friday, April 25, 2014, From Defence to Administration, Ex. 4, Tab 2 (a)

(v) The e-mail exchanges

(a) “I acknowledge receipt of your correspondence, which I just reviewed following a full-day Hearing today. I understand that the investigative reports are almost completed, and that a decision as to next steps will be communicated to you on or before Thursday, May 1, 2014.” Friday, April 25, 2014, 7:31 p.m., from Administration to Defence, Ex. 7

(b) The reason I sought to reach Mr. Leschied yesterday was to inform him:

(a) that there was an investigations meeting yesterday. The investigation has yielded considerable concerns. I have to comprehensively review the investigative materials, which were furnished upon me yesterday, and meet with the Executive Director to discuss the appropriate mechanism. A decision will be made (and expressed in writing) within the week, and in any event, by no later than next Thursday.

Thursday, May 1, 2014, 2:45 p.m., from Administration to Defence, Ex. 4, Tab 2 (b)

(c) I acknowledge your email of May 1, 2014. I was hoping the ORC would close its file this week as we all believed the deadline to do so had passed. Before a final decision is made by the Executive Director, do I have an opportunity to make submissions as to where charge should be brought or not?

Friday, May 2, 2014, 3:19 p.m., from Defence to Administration, Ex. 4, Tab 2 (c)

(d) You are welcome to make written submissions on behalf of your clients. When should I expect to receive them?

Friday, May 2, 2014, 9:24 p.m., from Administration to Defence, Ex. 4, Tab 2 (d)”

(vi) The Request

The Appellants made, what the Administration described as a “unique request, after the investigation was completed and before a decision was made by the Director,” as to charges.

The Administration advised that they were welcome to make written submissions.

On May 13, 2014, counsel for the Appellants provided a letter to the Director which stated that there was “no evidence … that would warrant any serious substantive evidence other than anecdotal hearsay and rumour that would support any charges … Lastly, my full and complete written submissions cannot be delivered without the documentary disclosure.”

(vii) The Rights of the Appellants

The Appellants have the right:

(a) to challenge the Order of Immediate Suspension;

(b) to seek a stay of the Orders;

(c) to full and timely disclosure;

(d) to make full answer and defence;

and

(e) to require the Administration to bear the ultimate burden of proof on a balance of possibilities, upon evidence that is clear, cogent and compelling on the complaints against them in the NOPs.

71. Pre-charge

The Appellants do not have the right to a hearing before the Director prior to a decision as to whether charges are appropriate.

72. ISSUE 15

Illusory Invitation

(i) Counsel for the Appellants described the” opportunity to make written submissions” as an “illusory invitation” and “a sham”.

(ii) There is no evidence in support of this claim.

(iii) It is clear that the full disclosure provided to the Appellants on May 23, 2014 was not available to their counsel on May 13, 2014, ten days earlier, when written submissions were made by counsel to the Director, prior to the decision to charge.

(iv) The Law

The decisions in:

(i) Regina v. Ontario Racing Commission, Ex parte Taylor [1970] 2 O.R. 509-520 [Ontario High Court of Justice], Osler, J., February 9, 1979;

and

(ii) Regina v. Ontario Racing Commission, Ex parte Taylor [1979] O.J. No. 1664 (O.C.A.), July 11, 1970 “establish beyond peradventure that whether a notice given in any particular case is sufficient depends entirely upon the circumstances of the case.”

73. The Taylor decisions are based upon inadequacies in the notice of the hearing, not deficiencies in the pre-charge phase and do not apply to this matter.

74. ISSUE 16

Future Proceedings

(i) the Appellants have the right to a hearing on the Notice of Proposed Order under Section 22 (2) and (5) of the RCA (scheduled to begin on July 21, 2014);

(ii) the burden of proof is on the proponent, the Administration of the ORC;

(iii) the standard of proof is on a balance of probabilities;

(iv) the evidence must be “clear, cogent and compelling”;

(v) it is the cumulative effect of all the evidence which must meet the standard of proof on a balance of probabilities, before an adverse finding may be made against either or both of the Appellants.

DATED this 17^th day of July 2014.

Anthony Williams

Vice Chair