Schickedanz v. Ontario Racing Commission, 2011 ONSC 4271

CITATION: Schickedanz v. Ontario Racing Commission, 2011 ONSC 4271

DIVISIONAL COURT FILE NO.: 42/11

DATE: 20110707

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CUMMING, LAX AND SWINTON JJ.

BETWEEN:

BRUNO SCHICKEDANZ and TOMMASO MARINO

Applicants

– and –

ONTARIO RACING COMMISSION and WOODBINE ENTERTAINMENT GROUP

Respondents

Peter A. Simm, for the Applicants

Brendan Van Niejenhuis and Owen M. Rees, for the Respondent, Ontario Racing Commission

David McCutcheon and Kathleen Burke, for the Respondent, Woodbine Entertainment Group

HEARD at Toronto: July 7, 2011

LAX J. (orally)

1This application for judicial review arises out of proceedings before the Ontario Racing Commission (“the Commission”) commenced by the applicant, Bruno Schickedanz. He sought to have the Commission overturn the decision of Woodbine Entertainment Group (“WEG”) prohibiting his horses from participating in racing at the Woodbine Racetrack and indefinitely suspending his stabling and racing privileges. WEG’s decision followed the death of thoroughbred horse Wake at Noon at WEG’s training track on June 29, 2010.

2WEG is a private corporation that owns and operates Woodbine Racetrack in Toronto. The applicant, Bruno Schickedanz, is an owner of thoroughbred racehorses, is licensed by the Commission and was the owner of Wake at Noon. The applicant, Tommaso Marino, is a trainer of thoroughbred horses, also licensed by the Commission, and was the trainer of Wake at Noon on the day of the horse’s death.

3On June 29, 2010, Wake at Noon was a 13 year old, twice- retired thoroughbred horse who had last raced on November 18, 2007. The horse began a training run at Woodbine’s training track under Marino’s supervision. Marino had not previously trained this horse and had no prior information regarding his fitness to train apart from a conversation with the exercise rider on the day of the run. During this run, Wake at Noon went down, catastrophically injuring his front leg. A veterinarian determined that the only humane treatment was euthanization.

4The following day, June 30, WEG issued a trespass notice against Marino and required him to remove all horses for which he was the trainer of record from Woodbine’s grounds or to transfer them to other trainers. Subsequently, on July 2, 2010, WEG issued a letter notice to Schickedanz suspending his horseracing and stabling privileges at Woodbine Racetrack.

5Shickedanz appealed WEG’s letter notice to the Commission, requesting that it intervene in the dispute with a view to restoring his racing and stabling privileges at that track. A hearing was held on August 17 and 26, 2010. Marino did not seek a review of his suspension or any status before the Commission. His only involvement was as a witness called by Schickedanz.

6The Commission released written reasons for decision on October 6, 2010 finding that it had jurisdiction to hear and determine the matter insofar as it related to the good of horseracing generally and involved a public interest component. The Commission denied the appeal. It concluded that Schickedanz had not made out a basis for the Commission to intervene in WEG’s decision but added the caveat that “at some stage, review of the continuing indefinite element of the suspension may be appropriate.”

7Schickedanz and Marino seek judicial review of this decision. However, the trespass notice against Marino was subsequently rescinded and he is currently working as an assistant trainer at Woodbine. WEG submits that the portion of the judicial review attributable to Marino as against WEG is therefore moot. We agree.

8The remaining applicant challenges the decision of the Commission on the grounds of jurisdiction and procedural unfairness. He also submits that the decision is unreasonable. The parties agree that within the Commission’s jurisdiction, a decision as to whether to exercise its discretion to intervene in the rights of a private racetrack is reviewable on a standard of reasonableness. This Court has held that this is the appropriate standard of review: Friedman v. Ontario Racing Commission).

Jurisdiction

9The applicant argues that WEG’s rules give WEG sole and absolute discretion to determine issues of conduct and that the jurisdiction to find a violation of its rules rests solely on WEG. Thus, he submits, the Commission had no jurisdiction to find a violation of those rules.

10This submission misunderstands the relationship among the applicant, WEG and the Commission in the appeal hearing before the Commission. WEG is a private property owner. Its decision to exclude the applicant from its premises is an exercise of private property and contractual rights. The Racing Commission Act, 2000, S.O. 2000, c.20, ss. 5-7 provide the Commission with broad jurisdiction to “govern, direct, control and regulate” horseracing in Ontario. Its jurisdiction to interfere with WEG’s private property and contractual rights is limited and derives from the Sudbury Down’s decision of Ontario Court of Appeal in Ontario Harness Horse Association. v. Ontario (Racing Commission). There, the Court held that the Commission may hold a hearing and interfere with a racetrack owner’s private property rights if the matter relates to the “good of horseracing generally” and it is in the public interest to do so: Sudbury Downs at para. 51. Conversely, the Commission may determine that it is in the public interest not to interfere with the private property rights of a racetrack owner.

11The task of the Commission was to determine whether the public interest required it to intervene and to exercise the power to overturn WEG’s exercise of its private property and contractual rights. In considering this, it was open to the Commission to find that Schickedanz had breached WEG’s rules. Indeed, Schickendanz himself put this in issue in his notice requesting review and again in submissions. He claimed that there was no fault in sending Wake at Noon to Woodbine for training and that he breached no rule of WEG in so doing. In effect, he invited the Commission to make a finding as to whether or not he had breached WEG’s rules. The Commission committed no jurisdictional error in concluding that Schichedanz had breached WEG Rules 1.1(a) and 3.6.

Procedural Unfairness

12The applicant advances complaints about procedural fairness and “hearing by ambush”. These complaints are misplaced. The Commission was not in an adversarial relationship with the applicant, but acting as a neutral arbiter in the dispute between Schickedanz and WEG. Schickedanz bore the onus on the appeal before the Commission. He had or must be taken to have had reasonable notice of the potential negative findings made by the Commission because he himself put these in issue and WEG joined issue with them. This is amply demonstrated by the applicant’s grounds for review as summarized by his counsel in opening submissions and WEG’s response: see paragraphs 23 and 24 of the Responding Factum of the Ontario Racing Commission.

13The applicant mistakenly relies on authority with respect to findings of misconduct in the professional discipline context. This is not a case of professional misconduct. No breach of the Commission’s rules is alleged. The question before the Commission was whether it was in the public interest to interfere with WEG’s rights. The Commission concluded that WEG’s decision accorded with the public interest because Schickedanz did not take reasonable precautions before returning the horse to Woodbine, thereby jeopardizing the health and safety of the horse. In considering the public interest, it took account of the evidence of numerous witnesses as to the standard of care in these circumstances, including those called by the applicant.

Reasonableness

14Was the decision of the Commission reasonable? Schickedanz had the burden of proving through clear and convincing evidence that the Commission should intervene in the public interest and override WEG’s actions: Friedman, above at para. 25.

15The applicant argues that WEG must not act arbitrarily and it did so in failing to make a thorough investigation before issuing its notices. While the applicant relies on Whelan v. Ontario Racing Commission, 2011 ONCA 299, that case does not impose a public law duty of procedural fairness or a duty to investigate on WEG. The case recognizes the power of the Commission to intervene where WEG makes an arbitrary decision, and it is in the public interest to do so.

16The Commission provided detailed and intelligible reasons for its decision and reasonably concluded, based on a balanced review of the evidence, that Schickedanz had failed to take reasonable precautions as to the fitness of Wake at Noon before sending him to Woodbine for training. The problems with the fitness and soundness of a 13-year old horse were testified to by numerous witnesses called by the applicant and WEG. We do not accept the applicant’s submission that the Commission should not have attributed culpability to Schickedanz as the owner of the horse. Schickedanz admitted that he had been active in the decision-making to send the horse to Woodbine.

17The evidence that gave rise to some of the factual findings of the Commission is now disputed, for example, whether Wake at Noon was “vanned off” during his last race. However, this was not disputed at the hearing. Similarly, the applicant complains that the Commission gave unreasonable weight to the public outcry that followed the horse’s death. It was not unreasonable for the Commission to admit and weigh evidence of the strong disapproval expressed by the racing public regarding the applicant’s decision to return a twice-retired 13 year old horse to the racetrack.

18In summary, in considering the public interest, it was open to the Commission to come to its own conclusions as to the appropriate standards in the industry based on the evidence it heard. WEG’s decision to bar the applicant from participating in races at Woodbine was based on the view that he had acted inappropriately in “breezing” the horse without adequate preparation and protection of the animal. The question before the Commission was whether or not to interfere with WEG’s property and contractual rights. In order to answer that question, the Commission was required to consider not only the conduct of the applicant, as this was the very issue that he place before it, but also the impact of such conduct on the public perception of the racing industry. The Commission reasonably exercised its discretion in concluding that the public interest did not warrant interference in WEG’s decision. We find no basis to interfere with the Commission’s decision.

19The application for judicial review is therefore dismissed.

CUMMING J.

20I have endorsed the Record as follows: “Application is dismissed. Reasons for Decision given orally by Lax J. dismissing the Application for Judicial Review. Costs are awarded to the respondent WEG in the amount of $20,000, inclusive of disbursements and HST. Costs are awarded to respondent ORC in the amount of $8,000, inclusive of disbursements and HST.”