Day At The Track

TODD SPEAKS OUT

01:18 AM 14 Sep 2007 NZST
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Larry Todd, former vice chair of the Ontario Racing Commission, in an open letter to John Blakney, responded to a notice put out Tuesday by the ORC regarding fairness, due process, and frivolous appeals.

Appeal "Chill" And Governance By Bureaucracy

The Ontario Racing Commission, on September 11th published its most recent of many "Notices to the Industry." This latest notice deals apparently with "fairness and due process."

However, any fair reading of the "Notice" would lead any reasonable reader to conclude that the industry regulator is really issuing a veiled threat to licensees regarding appeals and stays pending appeals.

Are we again back to the era of intimidation when licensees who have the audacity to file an appeal and exercise their rights given them by provincial legislation, received a letter from the Administration warning them that the commission staff were going to seek a "frivolous finding" and the $1,500.00 penalty?

The Racing Commission Act, 2000, and probably properly so, has for years contained a provision in section 11(8) that permits the imposition of a monetary penalty for what a panel of the Commission may after a judicial hearing find a "frivolous" appeal. However, this finding can be only made "after holding the hearing."

One might wonder if this most recent Notice from the Executive Director and not an appeal panel is an attempt to pre-judge and/or discourage appeals. One would hope such is not the case.

If the Administration is as concerned as they indicate about "wasting both valuable resources and time," perhaps there could be a better vetting and withdrawal of some of the many unsuccessful prosecutions they initiate and/or continue regularly. The industry all knows of a number of these.

The same "Notice to Industry" then additionally addresses the issue of stays and appears to add a regulatory gloss to the existing Rules of Standardbred Racing in Rule 24.06.

The above rule permits a stay to be granted at the discretion of the Executive Director.

However, this rule does not say, and has never been interpreted to require, "an extra-ordinary circumstance" to exist prior to a stay being granted while an appeal is heard. Again, is the Administration attempting to revise the rules of racing bureaucratically through this "Notice to the Industry"?

We all know there is a defined way to amend both the Rules of Standardbred Racing and the Rules of Thoroughbred Racing in a substantive fashion. There is a defined process to add or delete provisions to the rules of racing and "Notices to the Industry" is not the way.

Earlier this year, in mid-April, the same Administration that gave us General Directive No. 5/2007 which likewise set new terms and provisions for certain stays, again without the debate or discussion which would be part of the usual rule change process.

There was, and is, no imminent emergency that would have made it contrary to the public interest or the interest of ORC licensees to have the above-matters debated and dealt with under the recently revised rule change process.

The substance of General Directive No. 5, and the requirement for "an extra-ordinary circumstance" to obtain any stay pending an appeal, may or may not be warranted.

This is not the issue.

The concern is that the Administration's much-touted "due process" and "respectful" treatment of all racing licensees is being rapidly eroded by the administrative edict.

These attempts, albeit well-intentioned, are a usurpation by the bureaucracy of the rule making process and the statutory power of the Chair and six Commissioners who have the final say on propounding the Rules and provisions under which we all try to race our horses.

We should all be vigilant to ensure that it is the Commission itself that makes the rules for the conduct of horse racing and not the bureaucracy, which always has the propensity to keep itself beyond the accountability required of the Chair and the Commissioners themselves.

The September 11, 2007 Notice to the Industry goes so far as to indicate that even requests for a stay of the Executive Director can bear the "risks of being assessed costs."

I would respectfully suggest to the Administration and the Executive Director that there is absolutely no basis in the legislation or the Rules of Standardbred or Thoroughbred Racing for the imposition of a penalty of up to $1,500.00 against the licensee who requests a stay.

Again, the Administration has attempted to impose new rules without ever including them in either the legislation that governs racing, or the Rules of Standardbred Racing.

I sincerely believe that the commission itself, the industry and its licensees deserve far better.

Yours very truly,

Larry Todd

Courtesy Of Standardbred Canada

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