RULING NUMBER COM SB 008/2015
COMMISSION HEARING TORONTO, ONTARIO – APRIL 23, 2015
NOTICE OF DECISION
IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF THE APPEAL BY COLIN JOHNSON
On March 2, 2015, the horse racing Judges at Woodbine, denied trainer transfer applications for six racehorses. Colin Johnson appealed against this decision.
ORC Panel: Elmer Buchanan, Chair
Anthony Williams, Vice Chair
Counsel for the Appellant: Larry Todd
Counsel for the Administration: Catalin Tripon
The Issue:
Q. (i) Did the horse racing Judges have the power and authority to deny the trainer transfer applications pursuant to Rule 26.08 of the Rules of Standardbred Racing, in these circumstances?
A. (i) No, not in these circumstances.
(a) The power and authority of the Judges to deny a trainer transfer application is found in Rule 26.08 of the Rules of Standardbred Racing.
(b) Two conditions precedent must co-exist before the Judges may employ this Rule:
the “trainer” must be “suspended”; and
the “horse” must be “trained by him” or “under his care”.
(c) The Judges were not empowered to use this Rule because both of these essential requirements were not in existence at the same time.
Decision:
(i) The Appeal is allowed;
(ii) The denials of the trainer transfer applications are set aside; and
(iii) The trainer transfer applications, if requested by the Appellant, are approved for the following six horses:
1MO MOLLY BLUE CHIP, 4K941;
2AINSLEY NOELLE, 1KM99;
3CAPTIVE AUDIENCE, 3H828;
4FREDDIE, 6KM18;
5ILL STAY HERE, 9KM65;
6MOONWRITER, 0KN14.
The Reasons for Decision of the Panel is attached to this Notice.
Dated at Toronto this 20th day of May 2015.
______________________________
Steven Lehman
Executive Director
REASONS FOR DECISION
Overview
Colin Johnson appeals Ruling SB 46344, dated March 2, 2015, at Woodbine, by which the Judges allowed trainer transfers to him of four horses, but denied trainer transfers to him of six other racehorses.
The Trainer Transfer Guidelines require that the Judges “provide in the Ruling the reasons for approving or denying the transfer.”
The reasons were as follows:
“In accordance with ORC Rule 26.08 … the Judges have denied the trainer transfer from Corey Johnson to Colin Johnson for the horses
MO MOLLY BLUE CHIP, 4K941;
AINSLEY NOELLE, 1KM99;
CAPTIVE AUDIENCE, 3H828;
FREDDIE, 6KM18;
ILL STAY HERE, 9KM65;
MOONWRITER, 0KN14;
as the Ontario Racing Commission Judges were notified of a Class III positive from the Meadowlands, for trainer Corey Johnson, on July 19, 2014, and these horses were still racing in the care and control of Corey Johnson.”
The New Jersey Racing Commission, on July 7, 2014, ordered that Corey Johnson, the trainer of record for the horse that had the positive test, must serve a fifteen day suspension.
The suspension was to begin on July 25, 2014.
On July 14, 2014, the suspension was stayed before is began, by their Commission, “pending a final determination” and a “de novo hearing.”
On July 19, 2014, the Judges at Mohawk, Ontario, upon notification of the positive test from New Jersey, ordered that the horse was ineligible to race in Ontario, for a period of ninety days, pursuant to SB Rule 11.10.02.3.
On March 2, 2015, the Judges at Woodbine used July 19, 2014, as the “trigger date” in their decision to approve or deny the trainer transfer applications.
The four “approved horses” were in the care of Colin Johnson since the summer of 2014 (June to August).
The six “disapproved horses” ceased racing in the early fall of 2014 (September to October) and were thereafter laid up for the fall and winter seasons.
On November 17, 2014, the Judges at Woodbine ordered that Corey Johnson, the trainer of record for a horse that had a positive TCO2 test, from Woodbine, would be required to serve an indefinite suspension “until such time as a hearing into the matter has been completed,” pursuant to SB Rule 1.09, 9.08.01 (b) (ii) and Policy Directive 3-2008.
On January 19, 2015, the Judges at Woodbine, ordered, inter alia, that Corey Johnson serve a suspension until December 16, 2015, pursuant to SB Rules 22.38 (b), 22.38.06, 26.02.01, 26.02.02 and 26.02.03 (d).
THE ISSUE
Q. Did the horseracing Judges have the power and authority to deny the trainer transfer applications, pursuant to Rule 26.08 of the Rules of Standardbred Racing, in these circumstances?
THE POSITIONS OF THE PARTIES
The Administration
“When rendering the Ruling SB 46344 on March 2, 2015, the reasoning of the Judges was clear and correct, because prior to July 19, 2014, neither Corey nor Colin Johnson was suspended, Corey Johnson could freely transfer the horses trained by him or his father. The SB Rule 26.08 and the Policy Directive 2- 2008 were not applicable.”
“However, once in July 19, 2014 Corey was suspended in New Jersey, any horse trained by Corey Johnson after that date could have been transferred only with the approval of the Judges. The approval of the Judges was granted subject to the “arm’s length” rule provided in Policy Directive 2 – 2008. Horses that were no longer managed by Corey Johnson after July 19, 2014, were accepted to be transferred to Colin Johnson.”
(Factum, Administration, Ex. 1 at paras 21 and 22)
The Appellant
“Corey Johnson was not a suspended trainer at the time of the September and October dates that the Disapproved Horses left the racing stable of Corey Johnson for their fall and winter lay-up with the Appellant.”
“Corey Johnson had a full stay from New Jersey and raced horses in Ontario, New York and New Jersey in the spring, summer and fall of 2014, through and inclusive of November 17, 2014. Additionally, Corey Johnson has not and will not be suspended for the Meadowlands equine positive, referenced by their Judges in their subject Ruling until December 2015.” (now January 1, 2016 to January 15, 2016, inclusive)
“Accordingly, the purported reason provided by the Judges for their disapproval ‘a Class III positive from the Meadowlands’ cannot be a sustainable rationale to deny the transfer of the Disapproved Horses.”
(Appellant’s Compendium, at pp 8 and 9, paras 23 and 24)
“There was no factual or juridical reason for the denials of the applications.”
“The ‘unwritten policy’, claimed by the Administration, cannot be relied upon to justify trainer transfer denials.”
(Submissions on behalf of the Appellant, April 23, 2015)
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.”
Powers
- “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.”
(ii) The Rules of Standardbred Racing
SB Rule 26.08
“Whenever a trainer is suspended under any provisions of the rules, any horse trained by him … or under his care …, may, with the consent of the Judges at that meeting, be released to the care of another licensed trainer and may race.”
(iii) Trainer Transfer Guidelines
Policy Directive No. 2 – 2008 dated January 23, 2008.
(iv) Precedents
(a) Michael Capton, Standardbred Licensee v. Ontario Racing Commission
RULING NUMBER COM SB 030/2008, DATED November 5, 2008
“To understand the purpose of Rule 26.08 is to understand its proper interpretation. Integrity considerations require a total disconnect between the suspended trainer and the horses which he had been training. Necessarily implicit is that the duration of the disconnect must coincide with the duration of the suspension.”
(Capton v. ORC at p. 4, para 18)
(v) Legal Principles
The burden of proof is on the Administration.
The standard of proof is proof on a balance of probabilities.
The evidence must be “clear, cogent and compelling”.
It is the cumulative effect of all the evidence which must meet the standard of proof.
THE HEARING
- On April 23, 2015, this matter was heard by a Panel of the ORC.
The Administration called two witnesses:
(i) Jeff Minler, Senior Standardbred Judge, ORC
(ii) Stuart Lee Woodman, Compliance Officer, ORC
Counsel for the Appellant called one witness:
(iii) Colin Johnson, the Appellant
Seven exhibits were entered into evidence:
Ex. 1 Factum of the Administration;
Ex. 2 Appellant’s Compendium;
Ex. 3 Joint Book of Documents;
Ex. 4 Supplementary Book of Documents of the Administration;
Ex. 5 Trenton Ruling dated April 7, 2015, for Corey Johnson;
Ex. 6 Standardbred Canada Racelines for R AY HALL, racehorse;
Ex. 7 Standardbred Canada Racelines for ANOTHER AMARETTO, racehorse.
THE REASONS
The Judges at Woodbine decided that Corey Johnson “could not have his horses leave his stable” without their approval, if the departure occurred after July 19, 2014.
The Judges, in their Ruling, and in this Appeal, relied upon SB Rule 26.08.
Two conditions precedent must co-exist before the Judges may employ this Rule to deny trainer transfers:
(i) the “trainer” must be “suspended”;
(ii) the “horse” must be either “trained by him” or “under his care”.
The Judges are empowered to use this Rule, in their discretion, only if both essential requirements are in existence at the same time.
Corey Johnson was not under suspension on July 19, 2014. SB Rule 26.08 was not available to the Judges to justify denial of the trainer transfer applications while the six horses were either “trained by” Corey Johnson or “under his care” because his trainer’s licence was not yet under suspension. No further authority or precedent was provided.
RESULT
(i) The Appeal is allowed;
(ii) The denials of the trainer transfer applications are set aside; and
(iii) The trainer transfer applications, if requested by the Appellant, are approved for the following six racehorses:
MO MOLLY BLUE CHIP, 4K941;
AINSLEY NOELLE, 1KM99;
CAPTIVE AUDIENCE, 3H828;
FREDDIE, 6KM18;
ILL STAY HERE, 9KM65;
MOONWRITER, 0KN14.
DATED this 20th day of May, 2015.
____________________________ ________________________________
Elmer Buchanan Anthony Williams
Chair Vice Chair