AMENDED RULING NUMBER COM SB 030/2014
COMMISSION HEARING TORONTO, ONTARIO – DECEMBER 16, 2014
NOTICE OF DECISION
IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF THE APPEAL BY BERT SMITH
The Judges prohibited Bert Smith from entering the restricted area of an Association. Bert Smith appealed against this decision.
ORC Panel: Elmer Buchanan, Chair Anthony Williams, Vice Chair Sandra Meyrick, Commissioner
Representatives for the Appellant: Bert Smith (self represented) and Rose Smith (closing submissions only)
Counsel for the Administration: Angela Holland
The Issues:
Q. (i) Do horseracing judges have the power and authority to expel guests found in restricted areas, if such guests are properly signed in by participant licensees?
A. Yes.
(a) The power and authority of the judges to expel such guests is found in the combined operation of Rules 3.07.02(b), 3.07.03, 5.13, 6.01(a) and (b), 6.17(c) and (d), 32.01(a) and (i) and 32.02(c) of the Rules of Standardbred Racing.
(b) If the combined operation of these Rules is found not to apply, the power and authority of the judges to expel such guests is found in Rule 1.09 of the Rules of Standardbred Racing.
Q. (ii) Was the issuance of Ruling Number SB 46609 on October 23, 2014, prohibiting Bert Smith from entering the restricted areas of an Association, fair and reasonable in the circumstances?
A. No.
The Administration bore the burden of proof on a balance of probabilities to demonstrate that the Ruling was fair and reasonable in the circumstances, by evidence that was clear, cogent and compelling.
The cumulative impact of all of the evidence did not meet this standard of proof.
Decision:
The Appeal was allowed.
The Reasons for Decision of the Panel is attached to this Notice.
DATED at Toronto this 26th day of February 2015.
______________________________
Steven Lehman
Executive Director
REASONS FOR DECISION
OVERVIEW
1Englhieberth Smith, known as Bert Smith (“Smith”), was licensed from 1997 to 2012 by the Ontario Racing Commission (“ORC”), as an Owner and Authorized Agent of standardbred racehorses, licence number Y00532.
2On January 6, 2012, his licence expired.
3On May 3, 2012, Rob McKinney, Deputy Director of the ORC, issued Ruling Number SB 50/2012 which stated as follows:
“TAKE NOTICE that prior to Smith being licensed he must contact the Deputy Director pursuant to Rule 3.02 of the Rules of Standardbred Racing.” (“the Rules”)
4The Standardbred Canada printout for Smith included the following entry:
“OUTSTANDING FINES/SUSPENSIONS
ORC – MUST CONTACT DEPUTY DIRECTOR PRIOR TO BEING LICENSED
Commission Rule Number: 3.02
Date Issued: 3-May-2012 Suspension Ruling Number: 50”
5On July 28, 2014, the Senior Judges Report (“SJR”) stated:
“Following the races on Saturday evening, the judges did notice Bert Smith in the paddock. …
Upon review of the status of his licence, he is suspended, and ‘must contact Deputy Director’.
Judges spoke with security this evening, and informed them that Mr. Smith is unable to be signed into the paddock due to his suspension.”
6Rose Noel, now Rose Smith, wife of Smith, has been licensed from 2012 to 2014 by the ORC, as an Owner of standardbred racehorses, licence number 8A0425.
7On October 2, 2014, Rose Smith attempted, unsuccessfully, to sign her husband in as a guest at Mohawk Racetrack.
“The security guard stopped him and told us that he was not allowed to be signed in as a guest and he had his picture with a note at the bottom stating ‘must contact the Deputy Director, Rob McKinney’.”
8On October 8, 2014, Brent Stone (“Stone”) telephoned Smith and told him that “he is misusing the guest pass situation.”
- On October 16, 2014, the SJR stated:
“Received a call from Bert Smith. He is seeking something in writing in regards to him not being allowed in the paddock. We will consult with Legal Counsel at Head Office and the Deputy Director before proceeding.”
- On October 23, 2