The appeal hearing took place on December 16th, 2014.
In its notice of decision, the Otario Racing Commission stated that its ‘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.'
Full details below;
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.
Date of Hearing: December 16, 2014
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
1. Englhieberth 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.
2. On January 6, 2012, his licence expired.
3. On 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”)
4. The 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”
5. On 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.”
6. Rose 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.
7. On 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’.”
8. On October 8, 2014, Brent Stone (“Stone”) telephoned Smith and told him that “he is misusing the guest pass situation.”
9. 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.”
10. On October 23, 2014, at 2:40 p.m., Rose Smith sent an e-mail to Steven Lehman, Executive Director of the ORC, which asked, inter alia, as to whether there was “a limit on paddock attendances as a guest, we would like to know and if it is in accordance with the Rules, we would be obliged to respect the said Rule.”
11. On October 23, 2014, the Judges issued Ruling SB 46609 against Smith which stated in part:
“Whereas Bert Smith is not currently licensed with the Ontario Racing Commission;
And Whereas Smith must contact the Deputy Director prior to being licensed;
And Whereas Smith is prohibited from entering the restricted area of an Association;
And Whereas Smith has been gaining access to the restricted area of an Association on numerous occasions by being signed in as the guest of a licensed individual;
And Whereas in the opinion of the Judges, the practice of Smith being signed in repeatedly as a guest to gain entry to the restricted area of an Association is an abuse of the guest pass privilege and not in the best interests of racing.
TAKE NOTICE that pursuant to Rules 1.09, 3.02, 3.07.02 (a), (b), 5.11, 32.02 (a) (b) Smith is hereby prohibited from entering the restricted area of an Association.”
12. On October 23, 2014, the SJR stated:
“Ruling Number SB 46609 issued to Bert Smith prohibiting him from entering the restricted area of an Association.
Copy given to WEG Management via Bill McLinchey.
A copy was also left with WEG Security for Mr. Smith as we have been informed that Mr. Smith plans to attend the races this evening.
A copy will be mailed to his wife’s address as his licence is expired and shows a different address.”
13. On October 24, 2014, the SJR stated:
“Received notification from Bert Smith to appeal SB Ruling 46609 …”
14. On October 30, 2014, Smith filed a Notice of Appeal.
15. On November 18, 2014, the ORC issued a Notice of Hearing.
16. 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?
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?
17. THE POSITIONS OF THE PARTIES
Issue (i) The Administration
• “Judges have the power and authority … to expel guests.”
Factum, Administration, at p. 2, p. 1
The Appellant
• Judges should not “expel and ban guests … without the guest violating any rule of racing or … being in contravention of any of the rules of racing.”
Factum, Appellant at p. 1
• “… Rule 3.07.02 (b) stipulates the guest pass situation.” Ibid, at p. 7, para 23
• “Rule 1.09 does not apply. Even if Rule 1.09 was capable of application there was no evidence that it was in ‘the best interests of racing’.”
Submissions, Appellant
Issue (ii) The Administration
The Ruling was “fair and reasonable in the circumstances.”
Factum, Administration, at p. 2, p. 2
The Appellant
The Ruling was “discriminatory and/or arbitrary.”
Factum, Appellant, at p. 1
18. THE RULES OF ENGAGEMENT
(i) The Racing Commission Act
5. “The objects of the Commission are to govern, direct, control and regulate horseracing in Ontario in any or all of its forms.”
6. The Commission shall exercise its powers and perform its duties in the public interest and in accordance with the principles of honesty, integrity, and social responsibility.”
7. “The Commission has power, …
(k) to hold hearings relating to the carrying out of its objects or powers.”
(ii) The Rules of Standardbred Racing
1.01.1 “The following rules have been enacted and declared to be the official rules of the Ontario Racing Commission … and these rules shall apply to all standardbred raceways and participants under the Commission jurisdiction.”
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. …
“Participant means any person, … participating directly in standardbred horseracing and who, under the rules, is required to be licensed by the Commission.”
“Restricted Areas are those areas of the racetrack property used for the purposes of conducting racing to which access is controlled, and includes, but is not limited to the paddock, stabling areas and the racetrack.”
3.02 “A person shall not participate in the affairs of an association … nor shall any person participate in racing unless such person has applied for and been issued a Commission licence. …”
3.03.01 “ … Every person licensed by the Commission is deemed to have agreed to abide by the conditions set out in the application for the licence, the licence itself, the Act, the rules and regulations thereunder.
3.07.02 “The Association shall ensure that no individual enters or is permitted to enter the restricted area of the Association unless that individual:
(b) is a guest of a licensee who has in his or her possession a valid licence issued to that licensee and the guest is signed-in by that licensee and the Association has issued to the guest a “guest pass” which the guest is obliged to have in his or her possession while in the restricted area of the Association and to produce to an authorized representative of the Association, a racing official or the Director….”
3.07.03 “Any person who fails or refuses to produce upon request by an authorized representative of the Association, a racing official or a representative or member of the Commission his … guest pass issued to him … pursuant to Rule 3.07.2 may be subject to … removal from the premises by the Association in the case of a guest. The licensee shall be responsible for the conduct of their guest(s).
5.11 “The Judges have the power, and it is their duty, to regulate and govern the conduct of all racing, and all participants. …
5.13 “In the performance of their duties, the Judges shall have reasonable control over and unrestricted access to all … places within the grounds of any association.”
6.01 “The Judges may impose any or all of the following penalties for conduct prejudicial to the best interests of racing, or for violation of the rules:
(a) refuse an offender admission to the grounds of an association;
(b) expel an offender from the grounds of an association;
(d) impose conditions on a licence.”
6.17 “A person, at any time or place, shall not against any official or participant:
…
(c) use insulting, offensive or improper language; or
(d) be guilty of any improper conduct.”
24.01 “An appeal is a request to review any decisions or rulings of the Judges … An appeal may deal with … interpretations of the rules, or other questions dealing with the conduct of racing. … ”
32.01 “The paddock judge shall:
(a) under the direction and supervision of the Judges, have complete charge of all paddock activities;
(i) see that only properly authorized persons are permitted in the paddock;
(o) supervise the conduct of all participants in the paddock and report any rule violations or abuses to the Judges; … “
32.02 “… The persons entitled to admission to the paddock area are:
…
(c) other persons authorized by the Judges or the Commission.”
32.07 “The paddock is a secure area for the period beginning two hours before post time and ending one hour after the last race.”
(iii) Precedents
(a) “A licence is a privilege not a right.”
Re: Manneke, Gerald [2009] O.R.C.D. No. 29, August 30, 2009 at para 26
RULING NUMER COM SB 020/2009
(b) “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,
Supreme Court of Canada
(c) “‘Basket’ provisions are not unusual, for example, in the regulation of self-governing professional bodies.” (SB Rule 1.09)
Kelly Lester and Robert Zubkoff v. The Ontario Racing Commission, (Superior Court of Justice, Divisional Court) September 26, 2008, 2008, CanLii 48813 (SCDC)
(iv) Legal Principles
1. The burden of proof is on the Administration.
2. The standard of proof is proof on a balance of probabilities.
3. The evidence must be clear, cogent and compelling.
4. It is the cumulative effect of all the evidence which must meet the standard of proof.
19. THE HEARING
On December 16, 2014, this matter was heard by a Panel of the ORC.
The Administration called three witnesses:
(i) Craig Walker, Senior Standardbred Judge, ORC;
(ii) Brent Stone, Manager of Racing, ORC;
(iii) Lorra Deasy, Detective Constable, Ontario Provincial Police, Investigations Unit, ORC.
The Appellant called one witness:
(i) Smith, the Appellant.
Six exhibits were entered into evidence:
Ex. 1 Factum, Administration;
Ex. 2 Book of Documents, Administration;
Ex. 3 Notes of Stone, Administration;
Ex.4. Factum, Appellant;
Ex. 5 Book of Documents and Authorities, Appellant;
and
Ex. 6 Standardbred Canada Printout for Smith, Administration.
20. THE EVIDENCE
Four Witnesses
(1) Craig Walker (“Walker”)
• Senior Judge, ORC
• “The paddock is where the business of horseracing takes place.”
• “Restricted areas are necessary for both the safety and integrity of horseracing.”
• Only persons who are “licensees” or persons with “proper guest passes” are allowed entry.
• “We must know who and why to ensure the integrity of racing.”
On July 28, “The Judges did notice Smith in the paddock, following the races.”
“Jeff Minler went into the data base … contacted Mohawk security and had the matter dealt with. (Smith) was not allowed to be signed in as a guest. I agreed with him telling security.”
“There was a flag which could possibly prevent him from obtaining a license.”
“The Deputy Director does not tell the Judges why …”
The Panel asked Walker:
Q. “What was the flag about?
A. I did not know.
Q. Did you ask?
A. I did not ask.”
“At no time did I believe that he was suspended … could be a potential problem with re-licensing.”
Walker had never met Smith.
Walker had “no information as to the breach of any rule” by Smith
Walker spoke to Smith twice in October by telephone.
On October 2, Smith “told me that he had been in the paddock fifteen times in the last ten months.”
On October 16, Smith wanted something in writing to appeal.”
(2) Brent Stone (“Stone”)
• Manager of Racing, ORC
• responsible for field staff, racing operations, Judges and Stewards
• the paddock is “a place of business … there to race horses”
• “safety” and the “presentation of a professional atmosphere” are necessary
• “guest passes permit friends and business associates to occasionally come to the races… groups who come to the races for the first time”
• “a guest is not normally there … a guest does not do business there”
• Stone telephoned Smith on the request of the Deputy Director
• the October 8 call lasted five minutes
• Stone believed Smith was “misusing the guest pass situation”
• Smith said he “will guarantee that he will be in the paddock at least one night a week going forward.”
• Smith used language that was insulting and offensive
The Panel asked Stone:
Q. “What was the flag about?
A. Failure to disclose some criminal convictions on an application for a licence.”
(3) Lorra Deasy (“Deasy”)
• Detective Constable, Ontario Provincial Police
• seconded to the Investigation Unit, ORC
• assigned a “due diligence” investigation in February 2014 of Rose Smith
• other duties prevented attention to this assignment until October 30
• interviews traditionally conducted at racetrack
• interview held at office of licensee at her request
• the Appellant was present and repeatedly interrupted the interview and made unsupported allegations
• she felt that the Smiths “were not taking the interview seriously” … that she was “being stonewalled”
• she ended the interview, before completion of her prepared questions
• she later received from the licensee both the information and documents that she required to complete her assignment
(4) Bert Smith (“Smith”)
• licensed as an Owner of standardbred racehorses from 1997 to 2012
• had four thousand entries and six hundred winners
• none of his racehorses ever had a positive test
• winner of the O’Brien Award as the Canadian Harness Racing Owner of the year seven consecutive times
• disillusioned by the treatment he received from some other participants
• believed the ORC had “shirked its responsibilities” in addressing his complaints
• allowed his licence to expire on January 6, 2012
• did not wish to renew licence
• sometime later, a “mutual friend convinced Rose to buy two cheap horses”
• the horses won three hundred thousand dollars in purses in 2014
• Smith said that he and his wife enjoy attending racetracks together
• “We date, we go to all the little tracks, we get signed in; we have signed in at every track in the last two years.”
• without notice, Smith was refused entry to the Mohawk paddock on October 2
• Smith telephoned Walker
• Walker recommended that Smith call the Deputy Director
• “I called repeatedly.”
• Stone returned the call on October 8
• “In his (Stone’s) opinion, I abused it.” (the guest pass)
On October 30, Smith said, “in the heat of being pissed off,” he told Deasy that she “works for a criminal organization.” He said that “It was the only way I could get back at whoever is …” Smith did not complete this sentence.
21. THE FLAG
Q. “What was the flag about?
A. Failure to disclose some criminal convictions on an application for a licence.”
All participants in horseracing must be licensed.
A fresh application must be made each year.
All applicants must answer the same four questions:
Q. 1 “Have you ever been found guilty or convicted of an offence in any jurisdiction?
(this includes offences where a conditional or absolute discharge has been granted)
Q. 2 Do you have charges pending in any jurisdiction?
Q. 3 Have you ever had a licence or a registration certificate of any kind refused, denied, suspended or revoked in any jurisdiction?
Q. 4 If your answer is yes, to any of the questions above, is it recorded on file with the ORC? If no, give details of each conviction and/or ruling.”
• The existence of a criminal record, or outstanding charges, may, depending on the circumstances, result in the refusal of a licence or the revocation of a licence.
• The existence of a criminal record, or outstanding charges, may, depending on the circumstances result in the refusal of a guest pass or the revocation of a guest pass.
• The failure, by a former licensee, to disclose criminal convictions on a past application for a licence, may, depending on the circumstances, result in either the refusal of a guest pass or the revocation of a guest pass.
• There was no evidence that the Judges knew the reason for the flag.
22. FREQUENCY OF VISITS
(i) Paper Trail
“A record shall be maintained indicating the names and times of entry and departure of all persons admitted to the paddock.” SB Rule 32.01
• There was no record of visits between the expiration of his licence on January 6, 2012, and the Deputy Director’s Ruling on May 3, 2012.
• There was no record of any visits for the rest of 2012.
• There was no record of any visits in 2013.
• There were records of seven visits in 2014.
• Rose Smith was the sponsor on all visits.
• The paper trail was complete for “names”.
• The paper trail was incomplete for “times of entry” and for “times of departure.”
• There was no evidence of the duration of any visits except for April 28, when both the time of entry and time of departure were written as 1830 hours.
Book of Documents, Administration, Tabs 2-7 at pp. 2-11
• There was no evidence of any failure by Smith or his sponsor to comply with the request of any official, under SB Rule 3.07.03.
• There was no evidence as to when the paper trail was obtained.
• There was no evidence that the Judges knew of the paper trail.
(ii) Other Evidence
“The Judges did notice Bert Smith in the paddock.”
Book of Documents, Administration, Ex. 2, Tab 8, at p. 2
“I had seen him earlier in the summer in the paddock.”
Administration, Ex. 6
“He had been in the racetracks and paddock with me on the few occasions that I have attended … A couple of times when I could not attend, I asked him, to drop off an envelope to my trainer or assistant where they would have signed him in as a guest.”
Book of Documents, Administration, Ex. 2, Tab 11, at p. 15
“… the Administration was only able to provide evidence of the Appellant attending the restricted areas seven times in the last two years.”
Factum, Appellant, at para 17
“During 2014, records indicate that Smith entered restricted area seven times as a guest…”
Book of Documents, Administration, Ex. 2, Tabs 2-7, at pp. 2-11
“The Appellant then explained to him, that he might be in the paddock once or twice a month.”
Factum, Appellant, at para 8
“He told me that he had been in the paddock fifteen times in the last ten months.”
Walker, Evidence, December 16
“My wife has been licensed at the ORC for at least two years now … I have attended at the paddock with her approximately twenty times in these two years.”
Notice of Appeal, Book of Documents, Administration, Ex. 2, Tab 16, at p. 23
“Even if the Appellant attended the restricted areas of the different racetracks in the Province twenty times, the average attendance to the restricted areas by the Appellant is less than once a month.”
Factum, Appellant, Ex. 3, para 4
23. FLAG TO PROHIBITION
(i) The May 3, 2012 Ruling stated:
“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.”
• Smith was required to contact the Deputy Director only if he wished to apply for a licence.
• Smith did not wish to apply for a licence.
• Smith did not contact the Deputy Director.
• The Ruling did not suspend his licence.
(ii) The May 3, 2012 Standardbred Canada Printout stated:
“Suspension Ruling”
• If this practice was necessary to conform with data entry requirements, it was dangerous.
• The Ruling did not suspend the licence of Smith, although the printout read as if it had.
(iii) July 28, 2014
“Following the races on Saturday evening, the Judges did notice Bert Smith in the paddock.”
(iv) “Upon review of the status of his licence, …”
The reason for the review was not disclosed.
(v) The Judges concluded that “… he is suspended”
• The Judges did not have access to the wording of the Ruling.
• The Judges did have access to the printout.
• The printout was misleading.
(vi) “Judges spoke with security this evening, and informed them that Mr. Smith is unable to be signed into the paddock due to his suspension.”
• Smith was not under “suspension” until this direction.
(vii) October 2
“The security guard stopped him and told him he was not allowed to be signed in as a guest …” He “had his picture with a note at the bottom stating ‘must contact the Deputy Director, Rob McKinney’.”
• The exclusion of Smith by security followed the direction of the Judges, not the Ruling.
(viii) October 2
Smith asked two questions in a voice mail message for the Deputy Director.
1. “Why am I not allowed in the paddock?” and
2. “Is there some flag on my licence?”
(ix) October 16
The Judges “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.”
(x) October 23
“Whereas” when used in an introductory statement to formal document means “since it is true that”.
The preamble stated:
“… WHEREAS Smith is prohibited from entering the restricted area of an Association …”
The preamble accepted that “Smith is prohibited.” The Ruling which followed, confirmed, in writing, the pre-existing status: “Smith is hereby prohibited.”
(xi) The progression from flag to prohibition was now complete.
DECISION
24. ISSUE (I)
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 (b) 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.
• No person is permitted access to the restricted areas of an Association unless that person is either:
(i) in possession of a valid licence, SB Rule 3.07.02(a);
or
(ii) a guest of a licensee, SB Rule 3.07.02(b).
• The paddock is a restricted area, SB Rules, Chapter 2.
• A person who wishes to enter the paddock as a guest must meet the requirements of SB Rule 3.07.02(b).
• Qualification as a guest does not provide immunity from the operation of the other SB Rules.
• Qualification of a person as a guest does not trump the power and authority of the Judges to “regulate and govern the conduct of all racing”, including control of access to all restricted areas.
SB Rule 5.11, 5.13, 6.01(a) and (b), 6.17(a) and (d), 32.01(a) and (i), and 32.02(c)
• 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. “If any case occurs which is … not provided for by the Rules … it shall be determined by the Judges … in such manner as they think is in the best interests of racing.”
25. ISSUE II
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. (ii) 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.
On July 28
The evidence was:
(i) “a flag which could prevent him from obtaining a licence”;
(ii) a “suspension ruling” in the printout;
and
(iii) the sighting in the paddock May 3, 2012.
There was no other evidence.
On October 23
The further evidence was:
(i) exclusion from the paddock;
(ii) the statement, after his exclusion, that he had been in the paddock “fifteen times in the last ten months.”
There was no other evidence.
The SB Rules do not restrict the number of visits that a guest may make to the paddock.
The frequency of visits by a guest, depending upon the circumstances, may justify the prohibition of a guest from the paddock.
There was no evidence, other than the number of visits, standing alone, to support the conclusion that Smith engaged in either:
(i) an “abuse of the guest pass privilege”;
or that
(ii) his attendance in the paddock was not “in the best interests of racing.”
Other Evidence
There was relevant, material evidence, either not used or not available to the Judges: This evidence included:
• the use of insulting, offensive language;
• the “guarantee that he will be in the paddock at least one night a week going forward”;
• the “failure to disclose some criminal convictions on an application for a licence”;
• the unbecoming behavior in the interview which put his sponsor in jeopardy of violation of SB Rules 6.27 and 6.28.
“The die had been cast”. Smith’s fate as a guest was decided on July 28. He was barred from the paddock two and one-half months before it was put “in writing”.
In this case, the retrospective validation of the October 23 Ruling by the other evidence is not appropriate.
The Panel found that the cumulative effect of the admissible evidence did not prove on a balance of probabilities that the Ruling “prohibiting Bert Smith from entering the restricted areas of an Association” was reasonable in the circumstances.
26. RESULT
The Appeal by Smith against Standardbred Official Ruling SB 46609, dated October 23, 2014 is allowed.
The “prohibition” against Smith “from entering the restricted area of an Association” is set aside.
DATED this 26th day of February, 2015.