Ontario Harness Horse Association v. The Ontario Racing Commission et al.

[Indexed as: Ontario Harness Horse Assn. v. Ontario Racing Commission]

62 O.R. (3d) 44

[2002] O.J. No. 2409

Docket No. C36305

Court of Appeal for Ontario,

Morden, Catzman and Rosenberg JJ.A.

June 21, 2002**

• Application for leave to appeal to the Supreme Court of Canada was dismissed with costs March 27, 2003 (Iacobucci, Binnie and LeBel JJ.). S.C.C. File No. 29259. S.C.C. Bulletin, 2003, p. 527.

** Note: This judgment was recently brought to the attention of the editors.

Administrative law -- Jurisdiction -- Ontario Racing Commission erring in declining jurisdiction to hold hearing respecting refusal of race track owner to allow standardbred horses trained by applicant to race at its track on basis that race track was private property and owner had absolute right to determine who might enter it -- Racing Commission Act granting Commission power to "govern, control and regulate" horse racing in Ontario -- Power to "govern" and "regulate" necessarily involving power to modify private property rights to some extent -- Owner's private property rights did not constitute barrier to Commission's jurisdiction to hold hearing -- Racing Commission Act, 2000, S.O. 2000, c. 20.

The respondent race track owner refused to allow standardbred horses owned or trained by members of the applicant Association to race at its track. The respondent Commission declined jurisdiction to hold a hearing respecting that refusal on the basis that an owner of private property has an absolute right to determine who may enter his property and that the Racing Commission Act did not contain any provision that would remove that right. The applicant brought an application for judicial review of that decision. The Divisional Court dismissed the application, holding that any power to abrogate private property rights in exercising the power to regulate racing had to be either clearly stated or implicitly apparent, and that no such power was clearly stated or implicitly apparent in the Racing Commission Act. The applicant appealed.

Held, the appeal should be allowed.

Under s. 7 of the Racing Commission Act, the Commission has the power "to govern, direct, control and regulate horse racing" and "to govern, control and regulate the operation of race tracks in Ontario". The power to "govern" and "regulate" necessarily involves the power to modify legal rights, including property rights, to [page45] some extent. The grounds on which a licensed track owner excludes a licensed horse owner, trainer, driver etc. from racing is a matter that comes within "horse racing". Section 6 of the Act mandates that the Commission exercise its powers "in the public interest". Section 19(a), as part of the licensing provisions, imposes the duty on any licensee, which included the respondent owner, to "act in the public interest". The "public interest" in this context meant that not only the interest of the respondent owner had to be taken into account, but also the interests of other participants in the industry and the good of horse racing generally. Under the Act, then, the Commission had the power, in the public interest, to take action which might, incidentally, affect the respondent owner's property rights. The respondent's private property rights were not a barrier to the Commission's jurisdiction to hold a hearing in this matter.

APPEAL from a judgment of the Divisional Court dismissing an application for the judicial review of a decision of the Ontario Racing Commission.

Kimball v. Windsor Raceway Holdings Ltd. (1973), 1 O.R. (2d) 428,