RULING NUMBER COM SB 001/2016

COMMISSION HEARING TORONTO, ONTARIO – JANUARY 20, 2016

NOTICE OF DECISION

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

AND IN THE MATTER OF THE APPEAL AND REQUEST FOR HEARING BY

CRAIG YATES, AGAINST SB RULING 3/2016 DENYING HIS REQUEST

FOR A STAY OF THE SUSPENSION OF HIS LICENCE

Date of Hearing: January 20, 2016

ORC Panel: Anthony Williams, Vice Chair

Representative for the Appellant: Self-represented

Counsel for the Administration: Aviva Harari

Decision: The Panel dismissed the appeal.

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

DATED at Toronto this 28th day of January 2016.

Jean Major

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 CRAIG YATES:

Held Before:

Anthony Williams Chair

These are an excerpt of the proceedings in the above mentioned matter held before The Ontario Racing Commission, Re: CRAIG YATES, taken before Toronto Court Reporters, Suite 1410, 65 Queen Street West, Toronto, Ontario, at 10 Carlson Court, Suite 400, Toronto, Ontario, on the 20th day of January, 2016.

Appearances:

Aviva Harari,

for the Ontario Racing Commission Administration

Hearing continued ...

MR. CHAIRMAN: Good afternoon. Please be seated. The ruling is as follows. This is an appeal by Craig Harrison Yates. The Yates appeal is against a ruling by the Deputy Director of the Ontario Racing Commission, Standardbred ruling 3 of 2016 made on January 4th, 2016. This ruling denied the request made by Yates for a stay of the suspension of his licence following a violation of the alcohol test rules at a racetrack. The background: Craig Yates is licensed as a trainer of Standardbred racehorses. Craig Yates has had a tragic struggle with alcohol over a period of many years. He has violated the Standardbred rules of racing involving alcohol on eight prior occasions, including one breach of a post violation agreement. As a trainer Yates holds a safety sensitive position. He is a skilled and experienced trainer with a .434 win, place, show average. He has the support of three owners in attendance at this hearing. On November 26th, 2015 Yates attended Flamboro Downs Racetrack. Yates had two horses under his care and programmed to race. As trainer of record he was in attendance in the paddock. As a designated licensee holding a safety sensitive position he was requested to submit to alcohol testing. The breathalyzer test report reveals two readings, the first at 18:35 hours 258.8 mgs. Of alcohol in 100 mls. Of blood, the second at 19:14 hours 254.3 mgs. Of alcohol in 100 mls. Of blood. An alcohol test result of 80 mgs. Blood alcohol content or higher is a violation of Standardbred ruling of racing 36.08(c)(i). The judges report reveals that the track judges scratched both horses in the best interests of racing and referred Mr. Yates to the Deputy Director. On November 30th four days later the Deputy Director issued Standardbred ruling 78/2015 against Yates. This ruling had four parts. Part 1, a fine of $500.00, Part 2, a suspension of 15 days backdated to November 26, 2015 to December 10, 2015 and seven conditions referred to by counsel for the Administration in argument as preconditions. The fourth component, Yates was barred from attendance at all licensed racetracks. Paragraph 1 of the preconditions required full cooperation by Mr. Yates with the substance abuse professional (SAP) assessment process. Yates complied as required. Paragraph 2 required “adherence to any recommended treatment, monitoring and aftercare program”. Paragraph 5 required additional conditions of licence for a period set out in a post violation agreement. On December 23rd, 2015 the substance abuse professional determined that Yates met the criteria for “a severe substance abuse disorder”. The report continued that Yates would benefit from in-patient treatment. Two in-patient facilities were recommended. In addition, out-patient support to follow. On December 27th, 2015 Yates appealed against the ruling of the Deputy Director from November 30, 2015. No date has yet been set for the full appeal. In combination with that appeal Yates also requested a stay of the suspension pending the hearing of the appeal, following the advice of a representative from a horseperson’s association. On December 29th he had spoken by telephone with the manager of racing for the Ontario Racing Commission, a gentleman by the name of Brent Stone. The report of Mr. Stone indicates in part in the bottom of the document he provided “FYI he …” referring to Mr. Yates …“… was extremely intoxicated first thing this morning”. On January 4, 2016 the Deputy Director denied the request by Mr. Yates for a stay in ruling SB 03/2016. It is this specific ruling that is the subject of the appeal. On January 11, 2016 an addictions assessment counsellor booked an appointment for Mr. Yates this next week on Monday, January 25 at 2:00 p.m. to determine whether he is appropriate for a 21 day in-patient program. Two days later January 13, 2016 Yates appealed the January 4th denial by the Deputy Director. January 15 the Notice of Hearing was issued. Exhibit 4 from today’s proceeding provided us with further information from the substance abuse professional that there would be a period between the assessment of Yates and the treatment admission date of between six to eight weeks and today January 20 of course is the day for the hearing of the appeal in relation to the denial of the stay. The rules of engagement: the safety sensitive position that is held by Mr. Yates under the section 2 of the definitions of the rules of Standardbred racing 2012 means a position in which individuals have a key and direct role in the handling of horses such as performance impacted by alcohol or other drug use could result in 1) an incident affecting the health or safety of employees, licensees, patrons, horses or the public or 2) an inadequate response or failure to respond to an emergency or operational situation. For Standardbred racing trainer is captured as one of the safety sensitive positions. The Director under the rules of Standardbred racing under 36.03 which reads: “designated licensees are prohibited from the following: a) reporting to work under the influence of alcohol from any source” and 36.09 the Director has the authority and discretion to indefinitely suspend any designated licensee who a) tests .02 b.a.c. or greater. Otherwise any licensee who tests 20 mgs. Of alcohol in 100 mls. Of blood or greater may be indefinitely suspended by the Director or agent. The Ontario Racing Commission has its duties and powers set out in the Racing Commission Act. Section 6 indicates that the Commission shall exercise its powers and perform its duties in the public interest in accordance with the principles of honesty, integrity and social responsibility. Under Section 7 the Commission has the power under (d) to licence trainers and to impose those terms upon a licence that the Commission considers expedient. Burden of proof, standard or proof and evidence. The appellant Craig Yates is what is described as the moving party on this stay application and as correctly stated by counsel for the Administration bears the onus or burden of proof to demonstrate that extraordinary circumstances exist. The standard of proof is on a balance of probabilities and the evidence must be clear, cogent and compelling. The three part test: there is what is referred to as a three part test which must be satisfied before a stay may be granted. The three parts are as follows: there must be a serious question to be tried, there must be irreparable harm and there must be a consideration of the balance of inconvenience. A preliminary assessment in relation to a serious question to be tried, number one, must be made as to the merits of the appeal to ensure that there is or are a serious question or questions to be tried. In this case based on the material before me in written and oral form through the witnesses there do not appear to be any triable issues set out by Mr. Yates in relation to the breach of the rules of racing regarding alcohol test results. Mr. Yates has launched his appeal in an attempt to defer the suspension until future in-patient treatment at a facility. A preliminary consideration of the merits of the case would lead me based on what is presently available to come to the conclusion that Mr. Yates has not presented any triable issue and has not met the first of the three tests. The second test is irreparable harm. The question put in the factum paragraph 5 of the Administration whether refusal to grant relief could so adversely affect Yates’ own interests that that harming could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory injunction. A short version of that would be would there irreparable harm if Yates was subsequently successful on his appeal on the merits and it appears again based on what is available to me that the appeal would likely be unsuccessful on the merits. Yates has shown through a very heartfelt open testimony an extremely tragic situation in relation to his long term struggle with alcohol and openness as to I know what I did was wrong, I’m an alcoholic. I am prepared to find that there will be substantial harm to Mr. Yates if his application is not successful but that that harm, although serious, is not irreparable and that Mr. Yates has failed on the second test as well. In relation to balance of inconvenience the decision must consider which of the parties would suffer greater harm from the granting or refusal of the remedy pending the decision and where the public interest lies. In the case that is part of the package Exhibit number 4, the decision of RJR- MacDonald Inc. versus Canada Attorney General at page 22 of 26, paragraph 71 there is a quotation that is also repeated in the factum of counsel for the Administration that states as follows: “in the case of a public authority the onus of demonstrating irreparable harm to the public interest is less than that of a private applicant. This is partly a function of the nature of the public authority and partly a function of the action sought to be enjoined. The test will nearly always be satisfied simply upon proof that the authority is charged with the duty of promoting or protecting the public interest and upon some indication that the impugned legislation, regulation or activity was undertaken pursuant to that responsibility. Once these minimal requirements have been met the court should, in most cases, assume that irreparable harm to the public interest would result from this restraint of that action.” There is a further quotation from the fourth case that has been referred to Czupa from April 11, 2012, page 5 of 6, paragraph 29. In that case involving animal cruelty the decision was in part “the balance of convenience clearly supports the denial of the motion for a stay. The potential harm to racing in allowing the appellant to continue his privilege is far outweighed by the potential damage to the sport. Licensees need to be assured that such alleged acts will not be tolerated and that there is a meaningful deterrent at play. The public also needs to know that the regulator is fulfilling its mandate in terms of protecting the health and welfare of the horse. To allow the appellant the privilege of his licence before his hearing would not be in the best interests of racing.” Unfortunately for the position of Mr. Yates I find myself in the similar position as the author of paragraph 29 in the Czupa case in relation to balance of inconvenience. As a designated licensee holding a safety sensitive position you have a number of tasks. There are four troubling factors in this particular case that lead me to the opinion that it is not in the public interest to grant a stay. It is the accumulative impact of the four factors. The first factor relates to the fact unfortunately of your eight prior violations of the rules involving alcohol and your one prior breach of your post violation agreement. The second factor relates to your extremely high blood alcohol content on November 26, 2015. As you know 36.08 has (a), (b) and (c) provisions and (a) captures readings between 20 and 39, (b) captures readings between 40 and 79 and (c) captures readings of 80 and above. Under the Criminal Code of Canada for operation or care and control of a motor vehicle there is a provision that creates a criminal offence if there is an excess of blood alcohol of 80 mgs. Of alcohol in 100 mls. Of blood or more. In the Criminal Code of Canada under section 255.1 for sentencing purposes any person who has a blood alcohol content of 160 or more is treated as an aggravating circumstance for sentencing purposes and your readings unfortunately in this matter were 258 and 254. You have given an explanation about how you attained those on the afternoon unfortunately following and during the card game and the type of alcoholic beverage you consumed. You were very open about it but the extreme level is obviously a troubling factor. The third component of the troubling factors is the fact that the substance abuse professional described you as having a serious substance abuse disorder which you did not deny and indeed are very open about and that may bode well for the future in relation to potential impulse against this foe and the fourth is the concern from the material provided by the manager of racing that you were extremely intoxicated first thing in the morning. I realize you have been struggling for a long time with use and abuse of alcoholic beverage and that you were struggling subsequent to November 26th and your openness is to be commended. The Director is required to act in the public interest, to protect the integrity of the sport of racing and provide a safe environment for all and in this matter because you have not met the test, the three part test, the granting of the stay must be found not in the best interest of racing and that it would impact negatively upon the public perception of racing. The appeal by Mr. Yates against the denial of the application for the stay of suspension pending completion of precondition number 2 is dismissed. There is no order as to costs. I am hopeful that the gentlemen who are here in support of you today will continue their support and best wishes in your future. I know this is a difficult time. Thank you for your participation.

MS. HARARI: Thank You.

MR. CHAIRMAN: Are there any questions or any other positions to be advanced? Thank you.

CERTIFIED CORRECT:_________________________________

RAYMOND P. MACDONALD, B.A., CVR

Commissioner of Oaths