Court File and Parties

CITATION: Whelan v. Ontario Racing Commission, 2010 ONSC 3118

DIVISIONAL COURT FILE NO.: 562/09

DATE: 20100630

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MOLLOY, SWINTON, and CULLITY JJ.

BETWEEN:

JAMES WHELAN Applicant

– and –

THE ONTARIO RACING COMMISSION and WOODBINE ENTERTAINMENT GROUP Respondents

COUNSEL:

Arlen Sternberg and Afshan Ali, for the Applicant

Brendan Van Niejenhuis and Brennagh Smith, for the Respondent Ontario Racing Commission

P. David McCutcheon and Reena Goyal, for the Respondent Woodbine Entertainment Group

HEARD at Toronto: April 14, 2010

REASONS FOR JUDGMENT

MOLLOY J:

A. INTRODUCTION

[1] James Whelan is a trainer and owner of standardbred horses, which he races at various locations, including the Woodbine and Mohawk racetracks owned by the respondent Woodbine Entertainment Group (“WEG”). He has been in the horse business for many years. He is licensed by the Ontario Racing Commission (“the ORC”) to participate in horse racing at all tracks in Ontario, and earns his livelihood from racing. In April 2009, WEG refused to permit Mr. Whelan to enter any horses to race at WEG tracks unless he first signed an “Access Agreement.” Mr. Whelan objected to signing the agreement. This dispute eventually reached the ORC which, after a hearing, ruled in favour of WEG. Mr. Whelan seeks judicial review of the ORC decision, which is dated September 11, 2009, with reasons released October 2, 2009.

[2] Mr. Whelan raises the following four issues which must be determined in this application:

(i) Requiring Access Agreement: According to WEG’s Rules, anyone wishing to enter a horse in a race must sign the Access Agreement. The ORC’s Rules of Racing do not require racing participants to sign such an agreement and the ORC has never adopted WEG’s track rules as part of its own Rules. Mr. Whelan submits that WEG has no power to bar anyone from racing for failure to comply with a track rule and that the ORC unreasonably erred in law in failing to so hold.

(ii) Interpretation of Access Agreement: Mr. Whelan submits that the ORC unreasonably interpreted the terms of the agreement as applying to him in circumstances where he did not seek access to the racetrack grounds, but merely sought to enter a horse that would be brought to the track by others.

(iii) Revenue Sharing Terms: One of the terms of the Access Agreement required acceptance of revenue sharing formulas relating to wagering pools and purse distribution. The Canadian Pari-Mutuel Agency (“CPMA”) is an agency within Agriculture and Agri-Food Canada that regulates and supervises pari-mutuel betting at tracks across Canada. Mr. Whelan submits that the ORC exceeded its jurisdiction by permitting WEG to exclude from racing anyone who had not agreed to the revenue sharing terms, arguing that only CPMA has that authority.

(iv) Procedural Fairness Terms: One of the terms of the Access Agreement requires the applicant to accept all of WEG’s track rules. Those rules include provisions that purport to entitle WEG to exclude any person from racing at its racetracks in its sole discretion, without cause, and without any recourse by the person excluded. Mr. Whelan submits that this requires him to waive his rights to procedural fairness and natural justice provided for in the governing legislation and case law and that the ORC exceeded its jurisdiction, or alternatively committed an unreasonable error of law, by permitting a racetrack to insist on such a condition.

[3] The first two issues relate to whether WEG was entitled to require Mr. Whelan to sign the Access Agreement, regardless of the terms of that agreement. The last two issues relate to terms of the agreement considered to be objectionable by the applicant, specifically the revenue sharing provisions and the waiver of procedural rights.

[4] For the reasons set out below, I conclude as follows:

(i) The ORC did not err in holding that WEG could impose rules for racing in addition to those imposed by the ORC.

(ii) The ORC’s interpretation of the terms of the agreement is entitled to deference and is reasonable.

(iii) The ORC did not require anyone to enter into revenue sharing agreements and did not exceed its jurisdiction in failing to prevent WEG from imposing revenue sharing terms in its contracts with race participants.

(iv) The ORC correctly accepted that it had jurisdiction to deal with WEG’s requirement of a signed agreement as a condition of racing at its tracks. However, the ORC acted unreasonably in finding that a racetrack could exclude a licensed person from participating in racing for refusing to agree to waive procedural rights provided for in legislation that was ORC’s responsibility to enforce.

B. FACTUAL BACKGROUND

The Parties

[5] James Whelan is described in the ORC’s Reasons as “a career horseman, skilled, experienced and respected on the track and in the committee room.”[^1] Horse racing has been Mr. Whelan’s full-time occupation for approximately 37 years. He has a farm in Troy, Ontario and earns his livelihood primarily by breeding, training and racing horses. He has played a leadership role in various industry organizations, including for many years as the president of the Ontario Harness Horse Association (“OHHA”).

[6] WEG owns two licensed racetracks in Ontario: Woodbine Raceway and Mohawk Raceway. The ORC described WEG as “a top-of-the-line racing operation unexcelled in North America.”[^2] The WEG circuit is considered the preeminent circuit in Canada and generally has the best purses. The ORC noted that WEG’s tracks are the “ultimate proving ground and financial pinnacle for Ontario Harness Racing.”[^3] The ORC recognized that WEG imposes higher standards than others in the industry and applauded that position as supporting integrity, honest competiveness, and quality racing.[^4]

Sharing of Wagering Revenue

[7] The viability of a racetrack is dependent upon revenue from wagering. In order to legally permit betting on horse races, a race track must be licensed by the Canadian Pari-Mutuel Agency (“CPMA”). Further, to obtain such a license, the race track is required to have an “agreement with horsemen” setting out how wagering revenues are to be shared.[^5]

[8] Until December 29, 2008, WEG had a contract with the OHHA, while Mr. Whelan was the OHHA president, which included provisions on how wagering revenues would be shared. That contract satisfied the CPMA requirement. At the end of 2008, WEG and the OHHA were unable to agree on terms for a renewal of that contract.

[9] Starting in January 2009, WEG entered into individual “Access Agreements” with horsepeople using its racetracks. Based on those agreements, the CPMA issued a wagering permit to WEG for 2009.

[10] Subsequently, on July 30, 2009, WEG entered into a five-year contract with the Central Ontario Standardbred Association (“COSA”), another trade association for horsepeople, similar in nature to OHHA. The agreement with COSA has been accepted by the CPMA as satisfying the requirement of having an agreement with horsepeople on wagering revenue sharing.

The Access Agreement

[11] Beginning in mid-April 2009, WEG’s race secretary, acting on instructions from WEG management, began refusing to accept horses Mr. Whelan sought to enter for races at WEG tracks. At this time, WEG was still embroiled in a dispute with the OHHA (although Mr. Whelan was no longer the president of that organization) and had not yet entered into its contract with COSA. The sole basis for refusing Mr. Whelan’s entries was because he had not signed an Access Agreement. Mr. Whelan was the trainer and owner of the horses he sought to enter, but he would not be racing them himself and would not be actually attending at the racetrack in person. The horses he submitted were otherwise qualified for entry and they would have been brought to the track and supervised there by licensed individuals who had signed the Access Agreement.

[12] The Access Agreement is attached as Form A to WEG’s Standardbred Rule Book, the version in force at the time having been issued in October 2008. The only specific reference to Form A in the WEG Rules is in Part II, which relates to Stable Area Access Stickers. In order to obtain an access sticker, an applicant is required to execute the Form A document. Without a valid Stable Area Access Sticker for the current year and a valid ORC license, no person is permitted access to the stable area (apart from guests, for whom there are separate rules).

[13] The Access Agreement is in the form of an application for access rights. The first paragraph of the form states:

I hereby apply … for a limited license … to enter … the WEG premises together with the property (including horses and equipment) in my possession, care and control from time to time during the proposed access.

[14] The second and third paragraphs of the Access Agreement require the applicant to undertake and agree to “abide by the Rules and Regulations of WEG” and to “acknowledge and agree that WEG reserves the right to revoke the access rights, if granted, at any time in its sole and absolute discretion and without notice, reason or compensation.”

[15] Under the heading “WEG’s Purse Distribution and Race Scheduling Covenants”, the applicant is required to accept the sections of WEG’s Rules setting out its covenants on purse distribution and race scheduling. Those provisions mirror the terms of the OHHA agreement that expired at the end of 2008.

[16] In addition there are provisions in which the applicant acknowledges various things about the dangerous nature of horses and horse racing, assumes the risk of such activity and waives WEG of all liability. Mr. Whelan takes no issue with those provisions and would have been prepared to sign the Access Agreement if that was its sole content.

Procedural History

[17] The first time WEG’s race secretary refused to enter a horse submitted by Mr. Whelan, the rejection was referred to a senior ORC Judge at the track who, without holding a hearing, directed that the entry be accepted. However, that race did not fill, so no race was held.

[18] Subsequently, two other entries submitted by Mr. Whelan were refused. On May 4, 2009, the Woodbine ORC Judges convened a hearing to consider the matter and ruled that Mr. Whelan must comply with WEG track rules, and must sign the Access Agreement, if he wanted to enter horses at WEG races. In written reasons issued on May 12, 2009, it is apparent that the judges believed that the WEG Rules had been formally adopted by the ORC as part of the ORC’s Rules of Racing, which was incorrect.

[19] Mr. Whelan appealed the Judges’ ruling to the ORC and the matter proceeded to a full hearing de novo a three-person panel, chaired by Vice-Chair James Donnelly, including two days of oral evidence and subsequent written submissions. According to the ORC’s reasons, the relief actually sought by Mr. Whelan was a declaration that he is not required to execute WEG’s current Access Agreement in order to be allowed to enter his horses to race.

[20] The ORC dismissed Mr. Whelan’s application on September 11, 2009 and on October 2, 2009 issued written reasons for that decision, authored by Vice-Chair James Donnelly.

[21] In this judicial review proceeding, Mr. Whelan seeks an order setting aside the ORC’s decision and the judges’ order it upheld and an order declaring that he is not required to execute WEG’s Access Agreement as a precondition to entering his horses to race at WEG tracks.

D. STANDARD OF REVIEW

[22] The ORC is a specialized tribunal established under the Racing Commission Act, 2000 (“the Act”) and is charged under the Act with the power to: govern, direct, control and regulate horse racing; govern, control and regulate the operation of race tracks for horse racing; make rules for the conduct of horse racing; license persons to operate race tracks; and license persons associated with race tracks, including owners, trainers and drivers. The ORC is also empowered to hold hearings relating to the carrying out of its objects or powers and to impose penalties for contravention of the Act or its Rules.[^6]

[23] Section 6 of the Act requires the ORC to “exercise its powers and perform its duties in the public interest and in accordance with the principles of honesty, integrity, and social responsibility.”

[24] In Dunsmuir v. New Brunswick[^7] the Supreme Court of Canada held that in determining the applicable standard of review, it is relevant to consider: (i) previous decisions on the issue; (ii) the presence or absence of a privative clause; (iii) the purpose of the tribunal as determined by its enabling legislation; (iv) the nature of the question at issue; and (v) the expertise of the tribunal relative to that of the court.

[25] Prior to Dunsmuir, the standard of review for questions within the core area of expertise of the ORC was patent unreasonableness.[^8] The Supreme Court eliminated the patent unreasonableness standard in Dunsmuir, but held that in establishing only two standards of review (correctness and reasonableness), it did not intend to depart from well-established principles requiring deference to expert tribunals. Post-Dunsmuir, in Scott v. Ontario (Racing Commission), this Court noted the previous high standard of review and held that the appropriate standard under the current regime for factual findings and decisions within the ORC’s jurisdiction to regulate horse racing is the standard of reasonableness.[^9]

[26] A consideration of the other relevant factors also supports a reasonableness standard of review for issues within the ORC’s jurisdiction. There is no privative clause and no statutory right of appeal from decisions of the ORC, which points towards less deference. However, the nature of the tribunal is the most persuasive of the factors. The regulation of horse racing is highly specialized. Apart from issues relating to betting, the ORC is responsible for virtually all aspects of horse racing in Ontario, including the imposition of rules of conduct for all racing, the licensing of everyone involved, and the imposition of discipline for all participants. Further, the ORC is specifically mandated to make its decisions in the public interest and in accordance with honesty, integrity and social responsibility. The ORC’s decision-making is heavily laden with policy in an area of specialized expertise. These are all circumstances requiring considerable deference to the tribunal and supporting a reasonableness standard of review for most of its decisions.

[27] That said, the ORC must act within its jurisdiction. Decisions with respect to whether it does or does not have jurisdiction are required to be correct.[^10] However, once the ORC correctly determines that it has jurisdiction, a decision as to whether to exercise its discretion in a particular situation is only required to be reasonable.

[28] The first two issues raised by the applicant involve the interpretation and application of the rules of racing and the interpretation of an agreement governing the relationships between a racetrack and a horse trainer, both licensed and under the ORC’s supervision. Those issues are squarely within the ORC’s core area of expertise and entitled to deference. This court can only interfere if the ORC’s decision is unreasonable.

[29] The other two issues have some aspects that are jurisdictional, and some that are discretionary. In deciding whether it had jurisdiction, the ORC was required to be correct. Otherwise, the standard is reasonableness.

E. ISSUE ONE: WEG’S POWER TO IMPOSE CONDITIONS ON RACING

[30] The applicant submits that WEG has no power to impose conditions upon racing that are not part of the ORC’s Rules of Racing. Since the ORC does not require participants to execute an Access Agreement in order to be eligible to race, the applicant argues that WEG cannot do so either. The issue at this stage is not the content of the Access Agreement itself, but whether WEG has the power to insist on a signed Access Agreement as a condition of racing horses at its tracks.

[31] The applicant relies upon Rules 1.02 and 1.03 of the ORC’s Rules of Standardbred Racing 2008, which state:

1.02 Standardbred racing shall be conducted in accordance with the rules, Commission directives, conditions of licences granted by the Director or the Commission, track rules approved by the Director, any other applicable laws and regulations.

1.03 Should any provision of these rules or any Commission directive conflict with any track rule, the appropriate Commission rule or the directive shall govern.

[32] The applicant argues that these ORC Rules and the Act place the conduct of racing within the sole jurisdiction of the ORC and prevent any racetrack from imposing any other conditions upon the acceptance of horses to race.

[33] The ORC held that WEG has the power to impose rules disentitling people from entering horses to race at its tracks as part of its inherent rights as the owner of real property. Further, the ORC held that WEG has the right to impose track rules to govern the conduct of racing at its tracks, even where those rules have not been adopted by the ORC, subject to the proviso that where the track rules conflict with ORC rules, it is the latter that govern. The ORC noted that an ORC license is merely a qualification to race; it is not an entitlement for individuals to race at any given racetrack without heed to the rules imposed by that track.

[34] The interpretation urged upon us by the applicant would in effect read into Rule 1.02 a requirement of exclusivity, as if the Rule stated that racing “shall be conducted exclusively in accordance with the ORC Rules.” The plain meaning of the Rule is not to that effect. The ORC Rules contemplate that in addition to ORC Rules there may be track rules that the ORC may or may not adopt. Neither the ORC Rules nor the governing legislation prohibit a racetrack from having track rules that relate directly to racing. Indeed, the Rules of the ORC suggest the opposite. The definition section of the ORC Rules defines “Track Rules” as “rules posted by associations [racetracks] to govern conduct of racing and participants at that association’s raceway” and provides that track rules “may be adopted in whole or in part” by the ORC. The necessary implication is that racetracks may enact track rules relating to racing, some of which may be adopted by the ORC and some of which may not.

[35] If adopted, track rules would be enforceable by the ORC in the same manner as the ORC’s own rules. Otherwise, they are merely additional requirements imposed by the racetrack. The two sets of rules can live side by side, subject to the proviso set out in ORC Rule 1.03 that the ORC Rule will govern if there is a conflict. The ORC Rules do not prohibit racetracks from requiring participants to sign agreements with racetracks as a condition of racing. There is therefore no conflict between any ORC Rule and the track rule requiring the execution of the access agreement.

[36] As I have noted above, and as accepted by all parties, the applicable standard of review for the ORC’s decision on this point is reasonableness. The ORC’s determination as to the role of track rules and the interplay of track rules and ORC rules is logical, reasonable, and consistent with the statutory scheme. I see no basis to intervene on this issue.

F. ISSUE TWO: INTERPRETATION OF THE ACCESS AGREEMENT

[37] The applicant submits, in the alternative, that the ORC’s interpretation of the terms of the Access Agreement is unreasonable. In particular, the applicant argues that he was simply applying as a trainer to enter horses to race and did not seek access to the racetrack for himself. When his horses came to race, they would be accompanied by qualified persons who were both licensed by the ORC and signatories to the Access Agreement. Mr. Whelan’s argument focusses on the fact that the only reference to the Access Agreement in WEG’s Rules is the stipulation that a signed agreement is necessary to obtain a Stable Area Access Sticker, without which there can be no access to the backstretch or the area where horses are stabled.

[38] The WEG Rules do not expressly state that a trainer must sign the Access Agreement to enter a horse to race, even if the trainer does not seek personal access to the stable area. However, the ORC held that the Access Agreement relates to both persons and personal property and held that since the horse and its equipment were Mr. Whelan’s property, he was required to sign the Access Agreement before that property would be permitted in the backstretch or stable area.

[39] The application form states that the applicant applies to enter “together with the property (including horses and equipment) in [his or her] possession, care and control from time to time during the proposed access.” One interpretation of that provision is that it applies only to a person who seeks to enter and also extends to any property that person seeks to bring with him.

[40] However, the ORC’s determination that it also applies to any person who has care and control of a horse brought to the stable (which would include the trainer) is also a possible interpretation.

[41] In coming to that conclusion, the ORC was interpreting an agreement dealing with the relationship between racetracks and horse trainers within the context of the various competing interests in the industry. Those interests include the entitlement of trainers to a share of wagering proceeds and the liability of trainers for any problem with the horses submitted to race. The ORC took a contextual approach to the interpretation of the agreement, as was appropriate. This is an area squarely within the specialized expertise of the ORC, and not that of the court. The tribunal is entitled to deference. I am not able to say that the ORC’s interpretation is unreasonable when looked at in this context. It may not be the interpretation I would place on the agreement, but that is not the test. If the ORC’s interpretation can be said to be reasonable, in the sense that it falls within a range of possible reasonable outcomes, then it is entitled to deference.[^11] In my view, that test is met.

[42] Further, in the administration of its business interests, it was always open to WEG to require an agreement with respect to things such as waiver of liability, insurance and wagering distribution agreements, even if that requirement was not specifically mandated in its written rules. It is obviously helpful for racetracks to have written rules, but that does not mean that a racetrack is not entitled to bar horses from its stable area for legitimate business reasons, including the failure of a trainer to have signed a waiver of liability such as is contained in the Access Agreement. Therefore, even if this situation did not fall within the strict language of this Access Agreement or the WEG rules, it was open to WEG to require the trainer of any horse entering its stable area to sign an agreement containing the equivalent content as this Access Agreement, subject always to the supervision of the ORC. It is therefore of little consequence whether a technical interpretation of this particular agreement would include a trainer who was seeking access to the stables only for his horse, and not for himself personally.

G. ISSUE THREE: SHARING OF WAGERING REVENUE

[43] The Access Agreement required persons seeking to race their horses at WEG tracks to agree to the sharing of wagering revenue on a formula imposed by WEG. At the time Mr. Whelan was prevented from entering his horses to race, there was no agreement in place between WEG and any standardbred racing association. Although an agreement was subsequently reached with COSA, that agreement is being challenged and in any event is limited in duration. I am satisfied that this issue is not moot.

[44] The applicant submits that the ORC exceeded its jurisdiction by requiring him to agree to certain wagering revenue sharing as a condition of his eligibility to race.

[45] It is clear from the jurisprudence that the ORC has no jurisdiction to compel agreement to any terms with respect to the distribution of wagering revenues between track owners and other interested parties.[^12] The jurisdiction to deal with issues of wagering and purse distribution is reposed by statute in the CPMA.

[46] The question here is not whether the ORC can compel such an agreement, but whether it did do so. If it did do so, it clearly exceeded its jurisdiction.

[47] The ORC did not approve or adopt WEG’s Rules requiring the execution of the agreement containing the clause with respect to sharing of wagering revenues. It is therefore not the ORC, but rather WEG, that has required participants in horse racing at WEG tracks to agree to its terms on revenue sharing. In this sense, it cannot be said that the ORC required Mr. Whelan to accept WEG’s revenue sharing formula. All the ORC did was decline to intervene when WEG required Mr. Whelan to accept it. The ORC made that decision recognizing the limits on its own jurisdiction and cognizant of the fact that the CPMA, which does have jurisdiction, accepted the individual agreements between WEG and those using its tracks as meeting the standard required for a wagering license.

[48] I make no finding on the validity of Mr. Whelan’s contention that WEG did not meet the legal requirement for a wagering license because revenue sharing agreements must be negotiated rather than imposed. That is an issue for the CPMA, not the ORC, and not this court.

H. ISSUE FOUR: PROCEDURAL FAIRNESS AND NATURAL JUSTICE

Nature of the Provisions Objected to by Mr. Whelan

[49] The Access Agreement that WEG required Mr. Whelan to sign contains a number of provisions entitling WEG to do things Mr. Whelan considers to be unfair, arbitrary and prohibited by principles binding on the ORC.

[50] For example, the agreement itself states that WEG “reserves the right to revoke access rights, if granted, at any time in its sole and absolute discretion and without notice, reason or compensation.” Mr. Whelan submits that this clause effectively by-passes the ORC and makes WEG the ultimate authority on who can and cannot race, regardless of whether WEG has a supportable reason for doing so and regardless of any rights the applicant may have to notice or a hearing.

[51] Further, the applicant is obliged under the Access Agreement to accept all terms of the WEG Rules of Racing, again without regard to any overarching supervisory role for the ORC and without the preservation of any rights to notice or a hearing. The WEG Rules of Racing include provisions one might expect for things like payment of rent, cleanliness, permitted uses of the stalls and dormitories, acceptable attire for racing, and entry requirements; they also include more general provisions governing the administration of illegal drugs to horses and conduct deemed by WEG to be “injurious to the sport of horse racing or not to be in the best interests of racing.”

[52] The Access Agreement and the WEG Rules empower WEG in its sole discretion to determine if its Rules have been breached and give WEG the right to impose penalties for any breach including suspension of privileges, loss of all fees and eviction from the premises.

The Respective Roles of WEG and the ORC

[53] WEG is a private property owner running a business. That business is a highly regulated one and subject to considerable supervision by the ORC. The private property rights of WEG are not eliminated because it operates race tracks on its property; but the ORC is empowered, indeed mandated, to supersede those rights as part of its duty to govern, direct, and control horse racing in the public interest. While there is often a tension between the private property rights of race track owners and the public interest jurisdiction of the ORC, it is clear that the latter takes priority where broad issues affecting the good of horse racing generally are involved.[^13]

[54] The landmark case on this issue arose when the Sudbury Downs race track excluded ten individuals from racing, all of whom were members of the OHHA (the same organization in which Mr. Whelan had been involved for many years). At the time of this exclusion Sudbury Downs was in the midst of a contract dispute with the OHHA and alleged that the individual OHHA members excluded had been intimidating others at the race track and interfering with lawful racing activities there in an attempt to advance their own cause. Initially, the ORC declined jurisdiction, taking the position that this was a dispute involving private property and contract rights. The Court of Appeal held that the ORC had the power to modify or alter legal rights, including property rights, as part of its overall jurisdiction to govern horse racing. Further, the Court reasoned that it was beyond debate that the grounds upon which a race track owner excluded a licensed horse owner or trainer from racing falls within “horse racing.”[^14] In exercising its jurisdiction, the ORC is required to take into account the broad public interest as well as the interest of all participants in racing, not merely the property interests of the track owner. The public interest and the good of horse racing generally mandate a competitive level of racing at all tracks. Therefore, the Court held that the exclusion of otherwise qualified individuals from racing invoked the ORC’s public interest jurisdiction and the ORC was required to conduct a hearing into the matter. Depending on the facts that emerged from the hearing, the ORC could then decide, in its discretion, whether or not to intervene in the public interest.[^15]

The ORC’s Reasons on this Issue

[55] In his Reasons in this case, the ORC Vice-Chair recognized that the ORC “must exercise appropriate intervention to guarantee there are no abuses of WEG’s powers.”[^16] He stated that WEG’s property rights “remain absolute until the racing element is introduced into the equation” and which point, “the ORC as industry regulator has power to supersede” those property rights in the public interest.[^17] He further recognized that although WEG, as property owner, owes no duty of procedural fairness or natural justice to those it decides to exclude from its property, the ORC “safeguards due process through the provision of procedural fairness and natural justice.” The ORC found that the Access Agreement did not interfere with procedural fairness and natural justice because there is no power in a track operator to preclude an ORC licensee from having recourse to the ORC, and those rights will be provided by the ORC. He pointed to the hearing itself as an illustration of “Whelan engaged in a brimming cup full of due process, available to him, whether or not he signed WEG’s Access Agreement.”[^18]

[56] The ORC held that WEG had the highest standards of integrity in the industry and that it was in the public interest to permit WEG to maintain those standards by requiring all people who race at its tracks to adhere to its Rules. The Vice-Chair stated, at para 115:

The overarching public interest is overwhelming in support of maintenance of racing to the highest standard. Given that there is no diminution of access to due process, the balance of probability scale clearly and abundantly favours WEG’s position.

The Position of the Parties

[57] Counsel for WEG and counsel for the ORC agree that a person excluded from a WEG race track has a right to a hearing before the ORC and the right to procedural fairness and natural justice as part of that review process, regardless of the terms of any contract between WEG and that person. They argue that Mr. Whelan should have no concerns about signing the agreement because, if the conduct of racing is involved, the provisions about which he complains would not be enforceable. They point to the Hamather decision as an example of the ORC intervening and enforcing rules of procedural fairness and natural justice in a situation where the persons excluded from racing by WEG had signed the very agreement that Mr. Whelan is now being asked to sign. In argument, counsel for WEG likened this to a situation in which courts would refuse to enforce a waiver of liability signed by a patron at a ski resort. Both responding counsel emphasized that Mr. Whelan is not barred from racing, but merely from racing at WEG tracks.

[58] Counsel for Mr. Whelan argues that if provisions of the Access Agreement are not enforceable, Mr. Whelan should not be required to accept them as a condition of racing. Mr. Whelan is concerned that he may be taken to have waived or diminished his rights by signing the agreement. His counsel points to the Friedman case as an example of the ORC and the court relying upon the terms of WEG’s Access Agreement as one of the bases for upholding WEG’s exclusion of a licensee from racing at its tracks.

Analysis

[59] The past decade or so has seen ongoing debate about WEG’s entitlement to insist upon higher standards of conduct for its racing participants than is required for licensing by the ORC. WEG has sought to justify the exclusion of many licensees with the argument that it has acted to preserve integrity in racing and to maintain its reputation as the “premier” racing venue in Ontario. WEG’s opponents have countered with the argument that WEG seeks to set itself up as a second-tier regulator, without regard for standards set by the ORC. Since the Court of Appeal’s decision in Sudbury Downs, several cases have grappled with reconciling WEG’s rights as a property owner intent on maintaining the highest levels of integrity and the ORC’s role as regulator and protector of the public interest and the good of horse racing generally. Three decisions cited before us illustrate this struggle – Robinson, Friedman and Hamather – all involved concerns about the illegal administration of performance enhancing drugs to racehorses and the tough stand taken by WEG to eliminate this scourge from its tracks.

[60] In 2004, WEG issued a trespass notice to a licensed standardbred trainer, William Robinson, advising him that neither he nor his horses would be permitted to enter WEG racetracks. Mr. Robinson trained approximately 100 horses at his stable and had been a trainer for many years with a record of great success. He had a number of positive equine blood tests over the years, the most recent being at one of WEG’s tracks on November 8, 2003. Six days later, without any notice or discussion, WEG advised Mr. Robinson that his horses would no longer be accepted at WEG races.

[61] Mr. Robinson complained to the ORC and a hearing was convened on January 7, 2005. By that time, the decision of the ORC judges at the track had been delivered, ruling Mr. Robinson had violated ORC Rules, suspending him from racing for five years and imposing a $100,000.00 fine. Mr. Robinson had appealed that decision and the appeal was still pending on January 7 when the hearing into Mr. Robinson’s complaint against WEG began. At the outset, WEG raised a preliminary issue, taking the position that Mr. Robinson’s participation at WEG races was a “privilege” that could be withdrawn by WEG in its sole and absolute discretion, as provided for by WEG’s Rules that had been affirmed by Mr. Robinson.

[62] On the jurisdictional issue, the ORC ruled that Mr. Robinson’s exclusion from the track was primarily a matter of racing rather than property rights and that “the good of racing generally” and the public interest were involved. It therefore assumed jurisdiction and conducted a full hearing on the merits. At that hearing, Mr. Robinson objected to WEG becoming a de facto regulator of the industry and maintained that WEG should not be permitted to exclude him from racing on integrity grounds before the ORC itself had ruled on his appeal from the finding of violation and suspension. WEG argued that the ORC should not intervene in what was essentially a contract dispute and that it was not in the public interest for the ORC to prevent WEG from relying on its private property rights to enforce the highest standards of integrity.

[63] Mr. Robinson testified before the ORC that ten prior instances of equine drug violations were the result of “mistakes” or “carelessness” by his employees. The ORC held that the onus was on Mr. Robinson to establish that it was in the public interest to require WEG to admit his horses at its race tracks. The ORC concluded that Mr. Robinson did not meet that test because he gave “very little evidence of how future equine drug positives or ‘mistakes’ were going to be controlled”[^19] in the future. The ORC further concluded that WEG’s decision to exclude Mr. Robinson was made in good faith, was reasonable in order to protect the business interests of WEG, and was consistent with the best interests of the public and racing in general, because of the overarching importance of honesty and integrity to the public perception of the sport. Accordingly, it dismissed Mr. Robinson’s complaint.

[64] Very similar issues arose in the Friedman case. Mr. Friedman was an owner of horses, many of which had a history of positive drug tests. A number of times, the trainer Mr. Friedman had been using would be suspended because of the drug issue. Mr. Friedman would then transfer his horses to another trainer, but on several subsequent occasions, further drug infractions were found with those trainers as well. There was no evidence linking Mr. Friedman directly to the administration of illegal performance enhancing drugs to his horses. Against this background, when 3 of 17 horses owned by Mr. Friedman and trained by Todd Gray tested positive for a performance enhancing drugs in August 2006, WEG acted swiftly to revoke Mr. Friedman’s privileges at its race tracks. Todd Gray was prosecuted by the ORC and after a hearing was suspended for 10 years and fined $40,000.00.

[65] Mr. Friedman complained to the ORC about the suspension of his racing privileges by WEG. Again, WEG took the position that the ORC was without jurisdiction as this was a matter of property and contract rights, relying on its Access Agreement, among other things. Again, the ORC Panel hearing the matter concluded that the issue was primarily racing related and involved public interest issues of wide application. It therefore took jurisdiction and heard the matter on its merits. Again, the ORC concluded that WEG’s commitment to the integrity of racing was laudable and in the public interest and therefore declined to intervene. Of interest, however, is the fact that while declining to intervene in Mr. Friedman’s case, the ORC mentioned three other situations in which WEG had been over-zealous in excluding persons from racing without a reasonable basis. The three-person ORC Panel that decided the Friedman case included Vice-Chair Donnelly and he appears to be the author of the Reasons (as he was also in Mr. Whelan’s case).

[66] It is important to note that Mr. Friedman did not violate any ORC Rule and was not charged with any infraction by the ORC. Mr. Friedman would only be in breach of the ORC Rules if he had either administered the drug, intentionally assisted in its administration, or influenced or conspired with another person to administer the drug. Although there was no evidence that Mr. Friedman did any of those things, the ORC questioned his “passive acquiescence” and his failure to act in a decisive way to prevent his horses being drugged by trainers he employed, particularly in light of the past infractions by his other trainers.[^20] The ORC held that race tracker owners were not required to endorse the ORC’s belief in the rehabilitation of offenders and could bar people with a history of infractions, even if they were licensed to race by the ORC. This, said the ORC, was consistent with the public interest because it promoted the highest levels of integrity and instilled public confidence in WEG as a race track that would not tolerate cheating.

[67] Mr. Friedman unsuccessfully sought judicial review before the Divisional Court, which noted the ORC’s broad public interest jurisdiction and held that the ORC’s decision was reasonable and entitled to deference.[^21]

[68] There are interesting parallels, and also distinctions, in the Hamather case, which involved a dispute between WEG and four standardbred horse owners. Again the case involved WEG excluding a horse owner from competition after a trainer had been found responsible for administering an illegal drug to a horse in his care. The ORC had carried out blood testing on 29 racehorses at a training facility operated by a trainer named William Elliott. One of the horses tested (Michelle’s Power) had a positive result for a performance enhancing drug; the other 28 horses were negative. Random tests were conducted on three subsequent dates, but all 28 horses again tested negative.

[69] Pursuant to ORC Rules the trainer’s licence was suspended and all of the horses in his barn were declared ineligible to race until transferred to another trainer approved by the ORC. Robert Hamather, and three others, owned horses in Mr. Elliott’s barn and transferred them to other trainers. None of those individuals owned the horse Michelle’s Power and none of the horses they did own had tested positive. Notwithstanding this, WEG suspended their racing privileges at its racetracks indefinitely. Again WEG relied upon its contractual rights with the owners to exclude them from racing without notice and at its sole discretion. Again the owners complained to the ORC. The hearing proceeded before the same three-person ORC Panel that heard the Friedman case and again the Reasons appear to have been authored by Vice-Chair Donnelly. Again a jurisdictional issue was raised, and again the ORC held that rejecting racing entries from ORC licensed owners otherwise entitled to race is predominately race-related, relates to the good of racing generally and raises substantial public interest concerns.[^22] The hearing proceeded on its merits.

[70] This time, however, the result was quite different. This time, the ORC concluded that WEG had over-stepped.

[71] The ORC found that WEG had no evidence of any wrongdoing or guilty knowledge by these four owners. None of their horses had ever tested positive and none of them had ever been the subject of ORC suspension or discipline. The ORC acknowledged WEG’s objective was to promote fairness in horse racing by insisting on the highest standards of integrity. The ORC also itself endorsed this objective as being consistent with the public interest and with the ORC’s statutory mandate. However, the ORC held that “WEG, in its fervor to protect integrity, must exercise care not to assume the function of a tier-two regulator.”[^23]

[72] The ORC held in Hamather (at para. 34) that the public interest in racing includes, among other things, “principles of due process and protection against imposition of penalty without fault” and stipulated (at para. 37) that “owners are entitled to fair treatment.” The ORC stated, at para. 36:

For the ORC to pay mouth honour to, but fail to practice and enforce, integrity is hypocrisy – “Though the heavens fall”, licensees must not be denied due process.”

And further, at para. 46:

Track policies intended to protect the integrity of racing should be supported, but not to extent of the unilateral extinction without cause of the rights of another licensee. Regulation lacking procedural fairness would be a total failure to comply with the standard of honesty, integrity and social responsibility.

[73] The ORC therefore allowed the application of the horse owners and prohibited WEG from rejecting their racing entries at WEG tracks. That decision was upheld by the Divisional Court on judicial review. The Divisional Court held that the ORC correctly applied the Sudbury Downs principles by holding that owners were entitled to fair treatment, including notice, and that WEG was not entitled to run roughshod over the rights of owners, notwithstanding its contractual term that stated it was entitled to withdraw privileges in its “sole and absolute discretion.”[^24]

[74] I turn then to the application of these principles to the case of Mr. Whelan now before this court. His situation must immediately be distinguished from the cases of Friedman, Robinson, and Hamather; Mr. Whelan’s has had nothing to do with illegal drugs or cheating. He is acknowledged to be a person of high integrity who has done absolutely nothing wrong. The one thing he has done is stand on a point of principle – he refuses to sign an agreement he believes to be improper.

[75] The ORC has said repeatedly, as has this court, that WEG cannot contract out of the jurisdiction of the ORC to protect the rights of individuals licensed by the ORC to participate in race horsing. The case law also establishes that WEG cannot set itself up as a second tier regulator entitled to arbitrarily exclude individuals from racing at its tracks, in its own discretion, without any fault and without an opportunity to be heard.

[76] WEG’s argument before this court is essentially that Mr. Whelan should not worry about signing the agreement because the ORC will not enforce those provisions in any event. If the provisions are not enforceable, one must question the vehemence with which WEG insists on every participant agreeing to them as a condition of racing at its tracks. One must also recognize that notwithstanding its position in this court, WEG has persistently argued before the ORC that the ORC has no jurisdiction to intervene when a person is excluded from racing as an exercise of WEG’s contract rights.

[77] I also cannot understand why the ORC would think it reasonable that Mr. Whelan be barred from racing at WEG for refusing to agree to provisions in an agreement that ORC itself says is contrary to the public interest and unenforceable. Clearly, it would be open to Mr. Whelan to sign the agreement as his price of admission, and to later claim that those portions of the agreement purporting to circumscribe his rights to fair treatment are not binding on him. He has refused as a matter of principle to do so. I doubt that anyone would fault him for doing so, and it may well be that his rights would be in no way diminished by his having signed the agreement. However, it seems to me that it ill lies in the mouth of the ORC to state in one breath that “For the ORC to pay mouth honour to, but fail to practice and enforce, integrity is hypocrisy – “Though the heavens fall”, licensees must not be denied due process,” and then in the next breath tell individuals that if they do not agree to abandon those very rights, WEG can bar them from racing with impunity.

[78] In my view, the ORC’s conclusion that WEG is entitled to do so in the public interest cannot be said to be reasonable or to fall within that range of possible outcomes that can reasonably be justified.

[79] It is no answer to say that Mr. Whelan is excluded only from WEG courses, and not from racing generally. The ability to race at WEG courses is crucial for those with horses capable of competing in the top level of racing in this province, and Mr. Whelan is included in that group. His stables are in the area of WEG’s tracks and his livelihood depends upon being able to race there. A similar argument made by WEG in Robinson case and was firmly rejected by the ORC, and appropriately so, for reasons that are equally applicable here.

[80] Likewise, I reject the suggestion that Mr. Whelan can avoid the problem by placing his horses with another trainer who has signed the agreement. That is no solution. The subterfuge of a transfer for convenience, which is not a true transfer in substance, cannot be condoned.

I. CONCLUSION

[81] I have found in WEG’S favour on most of the issues raised. WEG is entitled to insist on an executed Access Agreement both for those who seek admission to its property and trainers or owners who seek to have their horses admitted there. WEG is also entitled to insist upon an executed waiver of liability and indemnity, as part of its private property owner rights. The ORC’s decision on these points is unassailable. Further, there is no problem with the ORC declining to interfere with the requirement of an agreement to revenue sharing. That is a matter for the OPMA. However, the ORC acted unreasonably by permitting WEG to insist on a signed Access Agreement containing provisions that purport to give WEG absolute unfettered power to exclude licensed ORC horse racing participants who have committed no fault.

[82] That does not mean that WEG is not entitled to require that an Access Agreement be signed by those who use its facilities. Many portions of the agreement are not problematic, as I have referred to above, and as is largely conceded by Mr. Whelan. It is not necessary for WEG to have a signed agreement from owners and trainers before it can enforce its track rules, and it is not reasonable for WEG to exclude those who refuse to sign an agreement containing terms that purport to give WEG powers beyond what it legally possesses.

[83] It may be that wording can be found that would preserve the rights of licensees while at the same time asserting WEG’s rights as private property owner. Perhaps there could be language stipulating that the agreement shall not be construed as a waiver of any rights to procedural fairness or natural justice, nor any rights of licensees under the ORC’s governing legislation. Perhaps it could stipulate that rights granted under the agreement are subject to the supervision of the ORC in the public interest. These suggestions are merely that – suggestions. I do not purport to approve any particular formula or wording, but merely to leave open the option of the ORC revisiting this issue if the agreement is amended in some way to address the concerns I have identified.

[84] Until such time, it is not reasonable to require Mr. Whelan to execute the Access Agreement as a condition to racing at WEG tracks. The decision of the ORC is set aside and an Order shall issue prohibiting WEG from excluding Mr. Whelan’s horses from racing solely on the basis that Mr. Whelan has not signed the current version of the Access Agreement.

[85] If costs cannot be agreed upon between the parties, written submissions may be addressed to the court within 30 days of the release of these Reasons.

MOLLOY J.

CULLITY J.

Released: June 30, 2010

Dissenting Reasons

Swinton J. dissenting

[86] I agree with Molloy J. with respect to the first three issues discussed in her reasons. However, I do not agree with the disposition of the fourth issue. In my view, the ORC did not reach an unreasonable decision when it refused to intervene to prevent WEG from requiring the applicant to sign the Access Agreement.

[87] In the Sudbury Downs case, the Ontario Court of Appeal recognized that a race track owner, as an owner of private property, has the right, both at common law and under the Trespass to Property Act, to exclude individuals from its property (Ontario Harness Horse Association v. Ontario Racing Commission (2002), 2002 41981 (ON CA), 62 O.R. (3d) 44 (C.A.) at para. 32). However, the ORC has the authority under the Racing Commission Act to interfere with private property rights of track owners in matters relating to the good of horse racing generally, where the ORC concludes it is in the public interest to intervene (at para. 51).

[88] In Sudbury Downs, the Court of Appeal did not express a view on whether the ORC should intervene with respect to the particular dispute between the track owner and licensees concerning entitlement to race. The Court concluded that the ORC had jurisdiction to hold a hearing respecting the dispute. Whether the ORC ultimately decided to intervene would turn on the facts of the case and the exercise of its broad discretion under the Act (at para. 56).

[89] Subsequently, the ORC has held a number of hearings to determine whether WEG’s refusal to permit entry of horses at its tracks was contrary to the public interest. For example, in Woodbine Entertainment Group v. Hamather, the ORC intervened to require WEG to accept entries from a number of owners, concluding that WEG’s decision to bar them was arbitrary, unfair and contrary to the public interest. That decision was upheld by the Divisional Court on judicial review ([2009] O.J. No. 431 at paras. 28-29, 31).

[90] In contrast, in Friedman v. Ontario (Racing Commission), the ORC refused to intervene in WEG’s decision to suspend the applicant’s racing privileges after some of his horses tested positive for an illegal drug. The ORC found that it was in the public interest to have the track take preventive measures to protect the integrity of racing. That decision, too, was upheld by the Divisional Court ([2008] O.J. No. 1706 at para. 34).

[91] The applicant submits that in the present case, the ORC has exceeded its jurisdiction or erred unreasonably in law in subjecting him to exclusion from racing and to discipline arbitrarily and without procedural fairness. He argues that requiring him to sign WEG’s Access Agreement is contrary to the ORC mandate, because the Agreement contractually binds signatories to WEG’s rules, thus entitling WEG to determine in its absolute discretion whether licensees are entitled to race and to discipline licensees, and to do so without advance notice or hearing process. In the applicant’s submission, the ORC has the sole jurisdiction to determine a licensee’s entitlement to race, and it must ensure that a licensee is not deprived of procedural fairness or excluded from racing arbitrarily or disciplined without fault.

[92] The applicant also argues that it is not enough that a licensee have recourse to an ORC hearing process after the fact if WEG suspends him from racing. Procedural fairness requires him to have a hearing before the suspension is imposed.

[93] In its reasons, the ORC dealt in detail with the procedural fairness arguments raised by the applicant. It characterized the Access Agreement as a codification of property rights (Reasons at para. 43). However, that exercise of property rights is subject to the ORC’s power to intervene on Sudbury Downs principles to protect the public interest and to safeguard due process (at para. 44).

[94] The ORC rejected the argument that WEG was usurping the ORC role and becoming a second regulator (at para. 55). It also rejected the argument that a track owner has an obligation to provide due process or procedural fairness when enforcing its track rules (at para. 68). Nevertheless, a track owner cannot prevent a licensee from seeking procedural fairness through an appeal to the ORC (at paras. 69 - 70). More precisely, the ORC stated, “WEG, whether by contractual rights with a licensee or otherwise, has power to extinguish neither the licensee’s right to due process nor the ORC obligation to so provide” (at para. 76).

[95] The ORC also noted that WEG had participated in three other appeals arising from exclusion decisions. In none of those cases, nor the present one, did WEG assert that its rules authorizing exclusion without notice precluded a hearing before the ORC (at para. 84). Therefore, the ORC observed, “By that conduct, WEG has acknowledged that notwithstanding the powerful expression in its rules, the right to due process remains secure” (at para. 85).

[96] The ORC also considered WEG’s right to protect its business interests, referring to the waiver of liability, management of risk and release and indemnity provisions in the Access Agreement. It commented that WEG has acted responsibly in the management of its property and exercised its authority to ban only when there was a serious racing issue at stake, and that decision had been reviewed by the ORC (at para. 107).

[97] The ORC then reviewed the public interest considerations in this case (at para. 112):

• Changing widely accepted industry practice to accommodate one individual.

• To undermine the efficacy of a system adopted by horse people on a 2500 to 1 basis, a system with long-term high quality proven results.

• Promoting compliance with rules and procedures proven to be workable and to industry advantage.

• Temporarily avoiding imperilling WEG’s wagering permits thereby promoting continuity of racing and the vast economy which it supports.

• Compliance with CPMA contract requirements.

• Compounding insurance litigation. The liability waiver affords protection against subrogated claims between insurers. Avoiding multiple lawsuits is in the public interest.

• Continuing to provide racing entertainment for the segment of the public so inclined.

• Avoiding micro-management of business affairs by the Industry Regulator.

• Avoiding a creeping and improper extension of the ORC mandate to regulate and govern.

• Avoiding unauthorized duplicate due process structure.

[98] The ORC concluded, “Given there is no diminution of access to due process, the balance of probability scale clearly and abundantly favours WEG’s position” (at para. 115). It rejected the argument that the contract was coercive, concluding that no one was forced to sign (at para. 121). The ORC noted that had the licensee chosen not to sign, he could have raced elsewhere.

[99] The issue for determination on this judicial review is the reasonableness of the decision, as in my view, the ORC was clearly acting within its jurisdiction when it decided whether to intervene to prevent WEG from requiring the signing of the Access Agreement. In determining the reasonableness of a decision, a court considers the line of reasoning and whether the outcome is within a range of possible, acceptable outcomes.

[100] The ORC is an expert body charged with the responsibility to govern, direct and control horse racing in Ontario and govern, control and regulate the operation of race tracks in Ontario (s. 7(a) and (b)). In this case, it was exercising a broad discretion in deciding whether to interfere with private contractual rights because the dispute was fundamentally about horse racing, and such intervention would be in the public interest (Act, s.6).

[101] The reasons of the ORC show a careful consideration of the competing interests at play in this case and explain why the ORC chose not to intervene to prevent WEG from requiring individuals such as the applicant to sign the Access Agreement in order to race their horses at its facilities. In the ORC’s view, the signed agreement would not interfere with the applicant’s right to procedural fairness. He has no right to a hearing before WEG exercises its decision to deny entry or to expel, as a track owner is not required to provide due process in relation to its track rules (Reasons, para. 68). However, the ORC made it clear that WEG cannot bar access to a hearing before the ORC - for example, through contractual arrangements (Reasons, at para. 76). Therefore, procedural fairness is protected by the right of access to the ORC.

[102] While the applicant argues that the ORC decision empowers WEG to become a “tier two regulator”, the panel rejected this submission, making it clear that the ORC remains the regulator. If a dispute between a licensee and a track operator is primarily related to racing and engages the public interest, the ORC has the jurisdiction to intervene and limit private rights in accordance with the Sudbury Downs principles.

[103] The ORC considered whether there had been past conduct by WEG which gave it cause for concern and reason to interfere here. It determined this was not the case, even though WEG’s expulsion decision had been overturned in Hamather, supra.

[104] In deciding not to interfere with the Access Agreement, the ORC considered whether it should micromanage WEG’s business and decided that it should not. As counsel for the ORC stated in his factum, there may well be arguments available to the applicant in contract law to the effect that this is a contract of adhesion, and it is unreasonable or unconscionable. However, that does not render unreasonable the decision of the ORC not to intervene in the public interest and, in effect, redraft the agreement.

[105] The fact that the ORC chose not to exercise its public interest jurisdiction does not mean that the ORC subjected the applicant to exclusion from racing arbitrarily and without due process. The result of the ORC determination is to require the applicant to sign the Agreement if he wishes to race at WEG tracks. Should he continue to refuse to do so, he is free to race at other tracks.

[106] The decision of the ORC that the signing of the Access Agreement is aligned with the public interest in the racing industry is a conclusion that deserves deference. The ORC is very familiar with the interests of all the stakeholders, as well as the dynamics underlying the dispute that gave rise to this appeal and subsequent application for judicial review. It made a decision based on its assessment of the best interests of the racing industry as a whole, which includes horse owners, drivers, track operators and the patrons of race tracks. In particular, it held that the Access Agreement helped foster a high quality of horse racing.

[107] Therefore, I would dismiss the application for judicial review.

SWINTON J.

Released: June 30, 2010

[^1]: Reasons of the ORC dated October 2, 2009 at para. 2 [^2]: ibid [^3]: Reasons of the ORC at para. 101 [^4]: Reasons of the ORC at paras. 97-106 [^5]: Pari-Mutuel Betting Supervision Regulations-SOR91-365 *** [^6]: Racing Commission Act 2000, S.O. 2000, c. 20, s. 7 (a), (b), (c), (d), (k), (l) and s. 11 [^7]: Dunsmuir v. New Brunswick, 2008 SCC 9 [^8]: McNamara v. Ontario (Racing ORC), 1998 7144 (ON CA), [1998] O.J. No. 3238, 164 D.L.R. (4th) 99 at para. 33(C.A.) [^9]: Scott v. Ontario (Racing ORC), [2009] O.J. No. 2858 at paras. 26-30 (Div.Ct.) [^10]: ***?Sudbury Downs [^11]: Dunsmuir at para ** [^12]: Ontario Racing Commission v. Ontario Jockey Club, [1967] O.J. No. 217 at paras 6, 7, and 9 (C.A.); Horsemen’s Benevolent & Protective Ass’n of Ontario v. Ontario Racing Commission, 1997 1907 (ON CA), [1997] O.J. No. 5153, 37 O.R. (3d) 430, 154 D.L.R. (4th) 104 at paras 14-17 (C.A.); Flamboro Downs, Re, [1996] O.R.C.D. (O.R.C.). [^13]: Sudbury Downs; Woodbine Entertainment Group v. Hamather (2008), ORC Ruling Number Com SB 017/2008, affirmed [2009] O.J. No. 431 (Div.Ct.) [^14]: Sudbury Downs, paras. 43-44. [^15]: Sudbury Downs, paras 47, 51 and 56. [^16]: ORC Reasons, para 109 [^17]: ORC Reasons, para. 44 [^18]: ORC Reasons, para 80 [^19]: Robinson at p. 12 [^20]: Friedman, ORC Decision at paras 40-41 and 70-76. [^21]: Friedman v, Ontario (Racing Commission), [2008] 2 S.C.J. No. 9 (Div.Ct.) at para. 34. [^22]: Hamather, ORC Reasons, paras. 4-6 [^23]: Hamather, ORC at para. 24 [^24]: Hamather, Divisional Court at paras. 26-29.