CITATION: Sheppard v. Ontario Racing Commission, 2011 ONSC 1932
DIVISIONAL COURT FILE NO.: 335/10
DATE: 20110325
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
FERRIER, LEDERER AND LAUWERS JJ.
BETWEEN:
JONATHON SHEPPARD and JUDDMONTE FARMS INC.
Applicants
– and –
ONTARIO RACING COMMISSION and ROBERT EVANS
Respondents
Harvey A. Swartz, for the Applicants
Brendan VanNiejenhuis and Andrea Gonsalves, for the Respondent, Ontario Racing Commission
Peter F. C. Howard, for Robert Evans
HEARD at Toronto: March 25, 2011
LEDERER J. (orally)
[1] On September 20, 2009, following a race at Woodbine, a jockey lodged a complaint that his horse had been interfered with. The Stewards at the track agreed and made a decision which adjusted the order in which the horses finished. There was an appeal to the Ontario Racing Commission (“ORC”). There was a full hearing on May 26, 2010. The ORC rendered its decision on June 10, 2010 at which time it reinstated the original results of the race.
[2] This is a judicial review of the decision of the ORC. Three substantive submissions were made by the applicants.
Notice
[3] Juddmonte Farms Inc., the owner of the horse which, by the decisions of the Stewards, would have finished in third place, but which as a result of the finding of the ORC, finished in fourth place, submitted that it did not receive notice of the hearing. There was evidence consistent with the rules of the ORC that both Juddmonte Farms Inc. and the jockey had been notified by letter sent by regular mail to the addresses that they had each provided to the ORC for this purpose.
[4] Counsel for Juddmonte Farms Inc. submitted that there was no proof that, in fact, these letters were sent. During cross-examination, the legal administrator with the ORC, the official responsible for mailing out notices, indicated that she had no specific recollection of putting a notice of the hearing in an envelope and sending it to Juddmonte Farms Inc. A reading of the transcript indicates that the practice of the ORC was to deliver notices to those listed on the document. There is nothing in the evidence to suggest that anything other than that the normal practice was followed.
[5] In the circumstances, there was actual notice. The Chief Administrative Officer of Juddmonte Farms Inc. deposed that she was aware that the decision of the Stewards was being appealed. Further, the jockey who had been on the owner’s horse for the race in question was telephoned the day before the hearing. None of those who were advised of the appeal or the hearing made any effort to communicate with the ORC to inquire as to its purpose or to advise of their interest in participating.
[6] Moreover, it is apparent that even if Juddmonte Farms Inc. had been notified, there is no reason to believe that its participation would have had any impact on the results of the hearing. Juddmonte Farms Inc.’s jockey initiated the complaint but could not provide evidence as to what happened. He was unable to identify which horse had interfered with his. The administration of the ORC and the trainer of the horse which the Stewards placed first took positions that represented and were aligned with the interest of Juddmonte Farms Inc.
[7] The parties present called experts to support this view and there is no reason to believe that the addition of witnesses would have added information or a perspective, not before ORC at the time of the hearing. Furthermore, there was no evidence on this application describing the evidence that Juddmonte Farms Inc. would have adduced at the ORC hearing (see Canadian Transit Co. v. Canada (Public Services Staff Relations Board), 1989 9429 (FCA), [1989] 3 FC 611 and Telecommunications Workers Union v. Canada (Radio-television and Telecommunications Commission), 1995 102 (SCC), [1995] 2 S.C.R. 781)
[8] The application for judicial review of Juddmonte Farms Inc. is dismissed.
Bias
[9] Jonathon Sheppard, the owner of the horse, which by the decision of the Stewards would have finished in first place, but which as a result of the finding of the ORC, finished in second place, submitted that there was a reasonable apprehension of bias in the ORC.
[10] One of the Stewards had telephoned Jonathon Sheppard to advise him of the ORC hearing. As a result, he appeared at the hearing with counsel. Despite the lateness of his participation, the ORC allowed him standing and permitted him to call an expert witness.
[11] In its reasons, the ORC commented that, while it found no fault that the actions of the Steward, in the future communications of parties interested in an appeal, should occur through the legal department of the ORC. In its factum, counsel for Jonathon Sheppard submitted that this demonstrated bias in that it suggested that the ORC was critical of how he came to participate in the proceedings.
[12] There is simply no evidence that suggests any circumstance in which an informed person viewing the matter realistically and practically and having thought the matter through would conclude that a reasonable apprehension of bias was present.
The Evidence
[13] It is acknowledged by all the parties that the appropriate standard of review is reasonableness. The decision of the Stewards was based on their finding that a horse moving from the eighth path to the second path interfered with another. The ORC is authorized to and conducted a de novo hearing. It determined that there had been no interference. The horse that moved had simply occupied open and available space.
[14] The applicants seek to have this Court overturn the findings of the ORC and replace them with those of the Stewards. These are findings of fact. In this case, the ORC conducted a comprehensive hearing. It heard, accounted for and weighed evidence from a variety of witnesses as well as a DVD and photographic evidence of the race. There was no palpable or overriding error. The fact that the applicants are unhappy with the result is not a reason for us to interfere.
[15] The application for judicial review of Jonathon Sheppard is dismissed.
[16] To be complete, even if we had been inclined to grant either of these applications for judicial review, we would have had difficulty ordering the remedy requested. The jockey of the horse found by the Stewards to have interfered was a necessary party. The decision of the Stewards caused him to be suspended for three racing days. This is a significant penalty. As a result of the decision of the ORC, the finding of misconduct was overruled. It would have been inappropriate for the Court to overturn the decision of the ORC making the jockey vulnerable to a penalty without having heard from him.
FERRIER J.
[17] Costs to the ORC, including disbursements and HST, fixed at $8,000.00. Costs to Evans fixed at $7,000.00 including disbursements and HST. Sheppard and Juddmonte to be jointly and severally liable for the costs. Costs are directed to be paid out of purse monies held by Woodbine Entertainment Group to the credit of Sheppard and Juddmonte.
FERRIER J.
LEDERER J.
LAUWERS J.
Date of Reasons for Judgment: March 25, 2011
Date of Release: April 15, 2011
CITATION: Sheppard v. Ontario Racing Commission, 2011 ONSC 1932
DIVISIONAL COURT FILE NO.: 335/10
DATE: 20110325
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
FERRIER, LEDERER AND LAUWERS JJ.
BETWEEN:
JONATHON SHEPPARD and JUDDMONTE FARMS INC.
Applicants
– and –
ONTARIO RACING COMMISSION and ROBERT EVANS
Respondents
ORAL REASONS FOR JUDGMENT
LEDERER J.
Date of Reasons for Judgment: March 25, 2011
Date of Release: April 15, 2011