IN THE MATTER OF THE RACING COMMISSION ACT 2000, S.O. 2000, c.20;

AND IN THE MATTER OF GERALD LAMOUREUX, ARTHUR ADAMS, PAUL ST. AMAND, EDWARD BASSIS, ROBERT LALONDE, DOUGLAS MURRAY MCCONNELL, JOHN RODRIGUEZ, MICHAEL JOHN SINCLAIR, ANDRE VILLENEUVE AND JUDITH VILLENEUVE

RULING

In accordance with a decision of the Ontario Court of Appeal, dated June 21, 2002, a panel of the Ontario Racing Commission convened to hear the applications of Gerald Lamoureux, Arthur Adams, Paul St. Amand, Edward Bassis, Robert Lalonde, Douglas Murray, John Rodriguez, Michael John Sinclair, Andre Villeneuve and Judith Villeneuve (“the Applicants”) to the Ontario Racing Commission for an Order that:

a) subject to all of the applicable Rules of Standardbred Racing, the ten individuals’ entries into overnight races (as well as qualifying and Ontario Sires Stakes (OSS) races) be accepted by the race secretary at Sudbury Downs Raceway (Sudbury), and

b) subject to all of the applicable Rules of Standardbred Racing, the ten individuals be entitled to resume participating in overnight races at Sudbury (as well as OSS races), and accordingly, have access to the grounds that are reasonable and necessary for them to be able to do so (including schooling, qualifying, reasonable and customary training, and racing).

Chair Stanley Sadinsky, Q.C. and Commissioners Patricia Bullock and Ernest Nock convened on October 15, 16, 17, 18, 21 and 22 to hear the matter. Arlen Sternberg and Andrea Hill appeared on behalf of the Applicants; Douglas Los and Lea Conrad appeared on behalf of Sudbury Downs; David McCutcheon and Carleton Mathias appeared on behalf of Woodbine Entertainment Group, which was granted intervenor status; and Don Bourgeois appeared on behalf of the Administration.

Upon hearing the evidence of the witnesses, reading the exhibits filed and hearing submissions on behalf of the Applicants, Sudbury Downs, Woodbine Entertainment Group and the Administration, the panel ordered as follows:

1. Robert Lalonde and Judith Villeneuve shall be permitted by Sudbury Downs to enter their horses at Sudbury Downs so long as the entries meet all conditions of the race and do not conflict with the Rules of Standardbred Racing and shall be permitted access to all areas of the racetrack premises that are ordinarily available to horsemen;

2. Gerald Lamoureux, Arthur Adams, Paul St. Amand, Edward Bassis, Douglas Murray, John Rodriguez, Michael John Sinclair and Andre Villeneuve shall be permitted to enter their horses at Sudbury Downs so long as the entries meet all conditions of the race and do not conflict with the Rules of Standardbred Racing. When any of their horses has been entered to race or if they are named to drive any horse in any particular race, they shall be granted full access to all areas of the racetrack premises that are ordinarily available to all horsemen along with the horse or horses scheduled to race on that occasion, subject to the following conditions:

a) Access should commence no earlier than three hours prior to the first race on the program (qualifying, Ontario Sires Stakes or otherwise) and end no later than two hours following the last race;

b) Should there be any repetition of the kind of disruptions or disturbances that occurred in the past, the termination of access and the right to enter horses shall be dealt with in the following manner:

i) by the Standardbred Judges at Sudbury Downs should there be an alleged violation of the Rules of Standardbred Racing and/or;

ii) with Sudbury Downs issuing a Notice pursuant to the Trespass to Property Act.

If such Notice is issued by Sudbury Downs, any party aggrieved may in writing complain to the Director under the Racing Commission Act, 2000 or his delegate, who may, if so advised refer the matter to a panel of the Commission. The Director will determine whether or not the issues raised in the written complaint involve a “racing issue” and, if satisfied that they do, may refer the matter to a panel.

The Commission provided written reasons for its decision, a copy of which is attached.

DATED this 8^th^ day of November, 2002.

BY ORDER OF THE COMMISSION (Don Bourgeois for)

Jean Major

Executive Director

REASONS FOR DECISION

INTRODUCTION

In accordance with the decision of the Ontario Court of Appeal dated June 21, 2002, this Panel convened a hearing to hear the applications of Gerald Lamoureux (Lamoureux), Arthur Adams (Adams), Paul St. Amand (St. Amand), Edward Bassis (Bassis), Robert Lalonde (Lalonde), Douglas Murray McConnell (McConnell), John Rodriguez (Rodriguez), Michael John Sinclair (Sinclair), Andre Villeneuve (Villeneuve) and Judith Villeneuve (Ms. Villeneuve) for an Order that:

a) subject to all of the applicable Rules of Standardbred Racing, the 10 individuals’ entries into overnight races (as well as qualifying and Ontario Sires Stakes (OSS) races) be accepted by the race secretary at Sudbury Downs Raceway (Sudbury); and

b) subject to all of the applicable Rules of Standardbred racing, the ten individuals be entitled to resume participating in overnight races at Sudbury (as well as OSS races), and accordingly have access to the grounds that are reasonable and necessary for them to be able to do so (including for schooling, qualifying, reasonable and customary training, and racing).

At the hearing, Arlen Sternberg and Andrea Hill represented the applicants and called seven witnesses viz. Rodriguez, St. Amand, Villeneuve, Lamoureux, Lalonde, Sinclair and Bassis. Douglas Los and Lea Conrad represented Sudbury and called six witnesses, viz. Ken LeDrew (LeDrew), Cheryl Danyluk (Danyluk), Al Nowoselsky (Nowoselsky), Jeanine Vaillancourt (Vaillancourt), Brent Powell (Powell) and Patrick MacIsaac (MacIsaac). David McCutcheon and Carleton Mathias appeared for Woodbine Entertainment Group (WEG), which was granted intervenor status in this matter, and called one witness, viz. Hugh Mitchell (Mitchell). In addition, 34 Exhibits were filed.

We were advised by counsel that following the release of the decision of the Ontario Court of Appeal, Sudbury Downs brought a motion to stay the Court’s decision pending the disposition of Sudbury Down’s application for leave to appeal the decision to the Supreme Court of Canada. The motion was dismissed by the Court of Appeal. An Application for Leave to Appeal was made directly to the Supreme Court of Canada (see Exhibit 23) but no Stay application was filed. We were asked by Sudbury to withhold the delivery of our decision herein until the Leave Application was dealt with by the Supreme Court. We have declined to do so in the absence of a Stay of the Decision of the Court of Appeal. The evidence before us also revealed that there is other litigation pending between some of the parties before us viz, Sudbury, Lamoureux and St. Amand (see Exhibits 20, 29 and 32).

OVERVIEW

Prior to 1998 and over a period of some 24 years, the Ontario Harness Horse Association (OHHA) had entered into a series of contracts with Sudbury with respect to the terms and conditions upon which racing would take place at Sudbury and revenues from various sources would be divided between the parties. However, the parties were unable to reach an agreement for 1998, and prior to the opening of the 1998 racing season in May, OHHA encouraged all horsemen to boycott the entry box and refuse to race (see Exhibit 5). A number of meetings had taken place among the horsemen and on one occasion, representatives of Sudbury were present. However, OHHA was not prepared to accept Sudbury’s proposals. There was considerable tension and uncertainty as to whether racing would actually take place and OHHA applied to the Ontario Racing Commission (the Commission) for an Order sequestering the moneys that had accumulated in the horsemen’s purse account from teletheatre wagering in the first part of 1998. This application was dismissed (see Exhibit 17).

It turned out that there were sufficient horses entered to race on opening day, May 20, and subsequently. OHHA continued its boycott but live racing continued at Sudbury. OHHA, through its local Directors at Sudbury (Lamoureux and St. Amand) and others, took other steps that were designed to encourage the termination of live racing. More will be said about this later in these reasons. These steps did not have their desired effect and racing proceeded through 1998. Indeed, on July 24, 1998, Sudbury executed a contract with a new horsemen’s organization that had been formed, The Northern Horsemen Association (NHA), for a term of five years expiring on December 31, 2002 (see Exhibit 18).

Notwithstanding the existence of this Agreement, OHHA continued its call for a boycott prior to the opening of racing in May, 1999 (see Exhibit 4). Again the boycott was unsuccessful and live racing continued at Sudbury. OHHA, supported by its Sudbury Directors and others, continued to exert economic pressure on Sudbury with a view to forcing Sudbury to enter into a contract with OHHA.

It may be useful at this point to set out what we consider to be the nature of a ‘contract’ between a horsemen’s association and a racetrack. Horsemen are independent contractors and not employees of a racetrack. They make unilateral and independent decisions each time they enter a horse to race. The racetrack publishes a ‘condition sheet’ for each day of racing, and each horseman decides in which race, if any, to enter a horse. In essence a contract is made when a horseman enters a horse and agrees to the terms of the conditions set out by the racetrack. Simply put, a racetrack may offer a purse of a certain amount and indicate the qualifications and eligibility of a horse that may enter the race. If a horse is entered, the horseman agrees to abide by the terms of those conditions and the track agrees, in turn, that that horse will share in the purse if it finishes in the first five places. The main contract is between the individual horseman and the racetrack.

When a horsemen’s association enters into a contract with a racetrack, that contract sets out, among other things, the basis on which monies will be contributed to the purse account from wagering dollars for races at the track. This contract may also contain terms relating to the charges that will be made for stabling at the track.

In order for a horseman to enter a horse to race, it is not necessary that he or she be a member of any horsemen’s association. A horsemen’s association in Ontario is not a union that has an exclusive right to bargain on behalf of all horsemen in Ontario. It is simply a trade association. Membership is voluntary and highly desirable because the association may offer benefits to its members. It can also negotiate overall revenue splits with individual racetracks and other terms that are favourable to horsemen.

The ten Applicants before us supported OHHA’s boycotts in 1998 and 1999, and refused to enter any of their horses to race at Sudbury. However, following the failure of the 1999 call for a boycott, some of the Applicants sought to enter their horses to race. The Race Secretary, Powell, advised the horsemen in question that they had to speak to the Track Manager, LeDrew, before their entries would be accepted. Some of the Applicants did speak to LeDrew and some were asked to meet with MacIsaac, the owner of Sudbury. All of those who were asked to meet with MacIsaac refused to do so. In the result, Sudbury barred the ten Applicants from entering their horses to race and, with the exception of Lalonde, from attending on the backside of the track or in the paddock. Sudbury purported to do so pursuant to its common law rights as a landowner and pursuant to the provision of The Trespass to Property Act of Ontario (the TTPAct). However, the Applicants were permitted to attend at the grandstand, the slot parlour, the entrance gate to the track and the parking lot. They were also permitted to have access to the Race Secretary’s office and the Standardbred Canada office on the backside if they wished to claim a horse. They had access to all areas of the track if there was an Ontario Sires Stakes race in which they had an entry but on each of the above occasions, they were accompanied by a security guard.

As a result of the barring of the Applicants by Sudbury, OHHA on their behalf, requested that the Commission convene a hearing to deal with the matter. The Commission refused on the basis of the law as it existed in Ontario at that time. OHHA sought Judicial Review of the Commission’s refusal and its Application for Judicial Review was dismissed. OHHA sought and was granted Leave to Appeal to the Ontario Court of Appeal and in its decision, the Court of Appeal reversed a number of earlier decided cases and directed the Commission to hear the matter.

PRELIMINARY MATTERS – JURISDICTION AND THE ONUS OF PROOF

Jurisdiction

In its submissions, counsel for Sudbury and WEG argued that the Commission had no jurisdiction to hear this matter in its present format. They argued that the relief that was being sought by the Applicants amounted to a request that the Commission impose a condition on the racetrack licence of Sudbury that would require it to provide access to its grounds to the Applicants and their horses. It was submitted that under Section 22 of the Racing Commission Act, 2000, (the RCAct), only the Director of the Commission could impose such a condition and the Commission could only hold a hearing on such a matter following a Proposed Order of the Director. Mr. Mathias also submitted that under the RCAct, a hearing could only be requested by “a person who considers (himself or herself) aggrieved” by a decision of a person to whom the Commission has delegated a power under Sections 11(3) and (4) of the RCAct. It was argued that neither Sections 22 nor Sections 11(3) and (4) applied in this case.

Mr. Los also argued that there was no jurisdiction to deal with this matter because to do so would interfere with the negotiations that may be going on between Sudbury and its horsemen regarding a contract to commence January 1, 2003. He submitted that the Commission has no power to interfere with such private contract matters.

We reject these submissions. This hearing is not being conducted under either Sections 22 or 11 of the RCAct. It is being held pursuant to the Order of the Court of Appeal. Furthermore, there is statutory authority in the Act to hold such a hearing. Sections 7(a), (b), and (k) of the Act provide as follows:

7. The Commission has power,

(a) to govern, direct, control and regulate horse racing in Ontario in any or all of its forms;

(b) to govern, control and regulate the operation of race tracks in Ontario at which any form of horse racing activity is carried on;

(k) to hold hearings relating to the carrying out of its objects or powers, (and) to establish the procedure for the hearings ….

Furthermore, this hearing will not deal with any contractual negotiations that are going on among the parties. While it is possible that the results of this hearing may have an incidental effect on those negotiations and on other matters, that, in our view, does not deprive this Commission of jurisdiction. Indeed the decision of the Court of Appeal may have opened many doors for the Commission’s potential involvement in a number of areas that were heretofore considered beyond the ‘jurisdiction’ of the Commission. Such issues must be left for another day.

Finally on the matter of jurisdiction, the Court of Appeal addressed this issue in its decision (see particularly #s 35, 44-46, 56 and 61). We have concluded that the Court of Appeal was clearly of the view that the Commission has jurisdiction to deal with this matter and it has expressly left the choice of remedy, if any, to the Commission (see #s 57 and 58). Furthermore, the Court of Appeal expressly found that the central subject matter of this dispute involved “racing” and not “property rights” and this was the principal reason for directing a hearing before the Commission (see #s 32, 47-56). We fully agree with that conclusion.

Onus and Burden of Proof

As to the onus and burden of proof, the Applicants have submitted that the onus should rest with Sudbury. Mr. Sternberg argued that once the Applicants have established that they hold licences in good standing with the Commission (and they all do), the onus shifts to Sudbury to establish on clear and convincing evidence that their exclusion from racing at Sudbury is justified. In support of his position, he cites the cases of Re Bernstein and College of Physicians and Surgeons of Ontario, 1977 CanLII 1072 (ON HCJ), 15 O.R. (2d) 447 (H.C.J.D.C.) and Persaud v. Society of Management Accountants of Ontario, 1997 CanLII 17789 (ON CTGDDC), 144 D.L.R. (4^th^) 375 (O.C.(G.D.)D.C.) and excerpts from MacCaulay and Sprague, Practice and Procedure Before Administrative Tribunals, Volume 1, 2001, Carswell, Toronto, # 17.2, (a) and (b).

Counsel for Sudbury and the Administration of the Commission argued that the onus of proof should rest with the Applicants. Mr. Los argued that Sudbury has exercised its private property rights under the common law and the TTPAct as it was entitled to do and if those affected seek a remedy, the onus lies with them. He also submitted that there should be a high burden of proof on the Applicants and that the decision of Sudbury should only be interfered with if it could be established that it did not exercise a ‘reasonable business judgment’ having regard to all of the circumstances. Mr. Bourgeois supported this position arguing that the onus should rest with those seeking a remedy. As to the burden of proof, he cited the case of Catrone v. State Racing Commission, (1984) 459 N.E. 2d 474 (A.C. of Mass); aff’d 462 N.E. 2d 1374 (S.J.C. of Mass.) and the Opinion of the Attorney General of Maryland (1996, Opinions No. 96-037, December 6 1996) entitled Racing Right of Racing Associations to Exclude Licensees from a Race Track.

We have concluded that the onus of proof should rest with the Applicants for the reasons submitted by Sudbury and the Administration of the Commission. As to the burden of proof, the parties are in agreement that the burden should be high. Although the cases cited by Mr. Sternberg are clearly distinguishable from this case, their reasoning on the burden of proof is sound.

We accept that a private property owner has a prima facie right to exclude a person from its premises and that this common law and statutory right should not be interfered with lightly. In most instances, there may be no right of review of the property owner’s decision. The case before us is unique in that the Court of Appeal has directed the Commission to hold a hearing and to exercise a jurisdiction that was not previously recognized. Presumably, as the regulator of both Sudbury and the Applicants, the Commission has a role to play if the matter involves primarily ‘racing’ and not ‘property rights’. We do not read the Court of Appeal’s decision in this case as mandating a full hearing before a Panel of the Commission on every occasion where a licensee is excluded from a racetrack. Before such a hearing is held, a determination must be made that the matter involves primarily ‘racing’.

In sum, we have concluded that the onus of proof in this case rests with the Applicants and in order to upset the decision of Sudbury, they must satisfy us on clear and convincing or cogent evidence that they should be permitted to return to race at Sudbury, that they will not be disruptive to racing at Sudbury and that Sudbury was exercising an unreasonable business decision in all of the circumstance in continuing to exclude them at this time. While the Catrone case is not binding on us, it has much persuasive value. We recognize the factual and statutory differences that exist between it and this case, but the test that is set out appears to be an appropriate one that we should adopt at least in part.

THE FACTS

The above Overview provides an outline of some of the facts and circumstances involved in this matter. We now intend to review the salient facts in more detail and make specific findings where necessary. In doing so, we characterize the central issue in this case as follows: Sudbury alleges that the Applicants, to varying degrees, were very disruptive of racing at Sudbury in 1998 and 1999. This was done, it is alleged, in support of OHHA’s efforts to ensure that live racing would not take place and that economic pressure would be exerted on Sudbury causing it to enter into a satisfactory contract with OHHA and with no other group or association. Sudbury now says that to permit these Applicants to resume racing at Sudbury would also be disruptive having regard to their past conduct and continued support of OHHA’s ongoing efforts to damage Sudbury economically and force it to contract with OHHA. It is pointed out that this is a particularly sensitive time because of the expiry of the NHA contract. We are being requested to determine whether these Applicants did in fact act in a disruptive manner in 1998 and 1999 and if so, have they now established on clear and convincing evidence that they will not do so in the future.

Mr. Sternberg has stressed quite properly that the issue for us to decide is whether in late 2002, there is a likelihood of improper conduct on the part of the Applicants and whether a ban at this time is sustainable. He argues that it is not necessary for us to determine whether any earlier ban was appropriate. We agree with Mr. Sternberg in this respect. However, in order to determine whether the ban should continue, it is necessary to review the earlier alleged conduct. It is only then that we can conclude whether there is a sufficient likelihood of repetition today and in the future.

The Meetings in 1997 and on May 12, 1998

We will attempt to deal with the evidence of the alleged disruptive conduct of the Applicants in a chronological manner. As we stated earlier, by April, 1998, no contract had been entered into between Sudbury and OHHA. MacIsaac testified that in September, 1997, he received a petition signed by some 53 horsemen asking him to disclose what Sudbury was proposing by way of contract for 1998. MacIsaac referred them to their OHHA Directors on the negotiating committee. In late spring of 1998, he again was approached by several horsemen who sought the same information. These horsemen indicated that their OHHA Directors were not sharing that information with them. In the result, MacIsaac organized a meeting on May 12 for that purpose. At this point, the racing surface had not been opened to permit horsemen to prepare their horses for the opening of the season, which was scheduled for May 20. It appeared that MacIsaac would not permit racing to commence unless there was an agreement in place with OHHA. In past years, the track was available to horsemen for training from 4 to 6 weeks prior to opening day.

MacIsaac prepared a document headed “Sudbury Downs Contract Proposal” (Exhibit 11) which he distributed and explained at the meeting of May 12. There were approximately 56 to 60 horsemen at the meeting, and there was an animated exchange of views. MacIsaac testified that Rodriguez spoke forcefully against the proposal and that Adams distributed information that MacIsaac characterized as “propaganda”.

LeDrew testified that he attended the meeting of May 12. He said that at the meeting, Adams accused MacIsaac of already having an agreement with a company called Carnival Cruise Lines which at that time had the opportunity to operate a charity gaming club somewhere in Sudbury. Adams accused MacIsaac of not disclosing this to the horsemen. MacIsaac testified that at that time, he was trying to ensure that the location of such an operation would be at the racetrack. He told the meeting that no such agreement existed. LeDrew testified that Rodriguez was at the meeting and was loud and boisterous. LeDrew also said that Rodriguez called for a boycott of the entry box and the closing of Sudbury.

Danyluk testified that she had attended a horsemen’s meeting at the Old Town Hall in Sudbury in late 1997. At that meeting, she observed that a number of horsemen were content with what they understood to be MacIsaac’s proposal but the OHHA Directors were opposed to it. She testified that the horsemen asked the negotiating committee to go back to MacIsaac to “fine tune” the proposal but it never got back to the horsemen. She testified that at the meeting in May, 1998, Lamoureux and Rodriguez were there and they opposed the MacIsaac proposal.

Powell testified that he was at the May, 1998, meeting and that “it got a little heated at times” and that “the atmosphere was tense”.

Rodriguez testified that he was at the meeting in May, 1998, and that he did speak. He acknowledged that he spoke forcefully and passionately about the issues and that he certainly opposed the MacIsaac contract proposal. He denied ever acting improperly or ever harassing or intimidating anyone. St. Amand testified that he attended a number of meetings where the Sudbury proposal was discussed. He spoke against it and urged horsemen not to support it. He testified that he was vocal but polite and that he never tried to disrupt the races at Sudbury. Villeneuve testified that he attended the May, 1998, meeting and that “all hell broke loose” and there were opposing views expressed. He described the mood of the meeting as one of fear, discomfort and anger. He indicated that the OHHA Directors said that “it was up to the members”. He testified that both he and his wife said nothing.

Lamoureux testified that at District 4 (Sudbury) meetings of OHHA in 1997 and 1998, there was a division of opinion among the members on the contract proposals of Sudbury. He opposed the Sudbury proposal of May, 1998. Bassis testified that he attended meetings in 1998 and that they were “argumentative”. He indicated that there were a lot of different opinions expressed. He testified that he was conciliatory at the meetings and tried to get the horsemen to agree. While he did not agree with all the things that OHHA was doing, he did support their position on the contract. Sinclair testified that he went to the meeting of May, 1998, and that he voiced his objections to the Sudbury proposal.

Before the meeting of May 12 ended, MacIsaac asked the horsemen to sign the bottom of the Proposal that he had put forward. When he found that some 49 horsemen had signed, he announced that racing would begin on May 20 and that the track would be open the next morning for training purposes. LeDrew testified that he went to work immediately calling horsemen elsewhere in Ontario and beyond to encourage them to enter horses.

OHHA put up notices at other racetracks in Ontario encouraging people not to enter horses at Sudbury. LeDrew testified that one horseman who had indicated that he would send 5 horses to Sudbury backed out because of OHHA’s position.

Opening Night – May 20, 1998

On opening night, May 20, there were enough horses available to race. LeDrew testified that St. Amand asked him whether he could address the horsemen in the backstretch. LeDrew agreed. Approximately 20 minutes prior to the first race, St. Amand, in the presence of his fellow Director Lamoureux, addressed a number of horsemen. LeDrew and Danyluk testified that St. Amand told the horsemen that if they raced, they would not be covered by the OHHA insurance plan. Rodriguez repeated this threat. This upset the horsemen greatly and LeDrew asked St. Amand to leave the area as “he had done enough damage”. Powell testified that there was a similar meeting on the backstretch on the second night of racing and again the horsemen were told that they would not be covered by insurance. MacIsaac testified that it was reported to him that a number of horsemen were dismayed that their Association would do this to them.

LeDrew also testified that he heard the two local Directors tell horsemen that if they raced, they would not be able to race anywhere else in Ontario in the future once OHHA became the sole bargaining agent for all standardbred horsemen in Ontario.

A Notice to OHHA members of District 4 had been circulated (Exhibit 5) which included the following:

The OHHA Executive have approved unanimously the payment to OHHA members of $150 to subsidize trucking costs (per truck and trailer) for those Sudbury OHHA members who are entering to race or qualify at any Ontario B-track during the Sudbury Downs/OHHA contract dispute.

This OHHA policy and benefit will take effect May 16, 1998, and will continue until further notice to those OHHA members who have not signed individual Sudbury contracts and who are not entering at Sudbury to race or qualify. Ask your OHHA Directors Gerry Lamoureux and Paul St. Amand for the forms. Furthermore, OHHA benefits such as the $1 million OHHA Liability insurance coverage and the OHHA weekly disability Payments will not be paid on incidents occurring while Participating in racing or qualifying at Sudbury Downs. Sudbury Downs management have declared themselves a non OHHA sanctioned track, thus effectively cancelling these very important and necessary coverages.

Lamoureux testified that he was at the backstretch meeting on opening day although he did not speak. He confirmed that the horsemen were told that if they raced, they would not be covered by insurance. He indicated that this was done “to get MacIsaac’s attention”. He testified that it was the intention of OHHA to negotiate a better contract for the horsemen and it wanted to put economic pressure on MacIsaac.

St. Amand testified that he did meet with horsemen in the backstretch on the opening night in 1998, and he advised them that he wasn’t sure whether they would be covered by OHHA insurance if they raced. He testified that he also told them that if they had paid the premiums, they would be covered whether there was a contract or not. St. Amand admitted in cross-examination that when he spoke to the horsemen on that occasion, he was aware of the OHHA Notice (Exhibit 5).

Vaillancourt, a horse trainer at Sudbury, testified that she supported the boycott in 1998 for the first day of racing. However, when it appeared that the boycott was not working, Lamoureux told her to go back and race as she needed the money. She also testified that there was a good deal of tension on the backside, and that horsemen were upset over the threat of OHHA to withdraw insurance coverage. Vaillancourt indicated that tension continues to this day and will “never get back to normal”.

As indicated earlier, racing proceeded on opening night and thereafter. The Commission monitored the racing programs to ensure that they were reflective of past racing at Sudbury and permitted racing to continue.

The “Glaring” or “Staring” Incident

MacIsaac testified that early in the 1998 season, he attended on one race day on the apron in front of the grandstand where he observed that Rodriguez, St. Amand and Adams were standing at the rail apparently staring at the horsemen as they paraded past the grandstand prior to each race. He was some 60 to 70 feet away from them and he did not hear them speak and did not see them gesture to the horsemen. LeDrew testified that some horsemen reported to him that they were stared at by Rodriguez, St. Amand and Adams near the finish line before each race and they interpreted it as a statement to them that they were “going to be remembered” if they raced.

Rodriguez and St. Amand testified that they were located at the finish line as MacIsaac had indicated but that they did not glare at the horsemen or intimidate them in any way. Adams did not testify before us.

The Ontario Sires Stakes Race of June 13, 1998

OHHA’s boycott of Sudbury continued throughout 1998 and all of the Applicants did not seek to enter any horses to race.

Sudbury was scheduled to host an OSS event on June 13, 1998. Exhibit 22 is a copy of the Decision of this Commission dealing with certain issues involving this race. On page 2 of the Reasons for Decision, the following appears:

As the June 13^th^ OSS race at Sudbury approached, OHHA sought to persuade Horsemen to refuse to race at Sudbury. For the purposes of OSS races, horses all over Ontario and beyond travel to designated locations to race. OHHA suggested to its membership that because it had no contract with Sudbury for 1998, they should not enter their eligible horses at that racetrack. As an added inducement, OHHA sponsored its own race for the same class of horse (3 year old filly trot Grass Roots) with the same purse on the same date at Hanover Raceway. OHHA also guaranteed points to those who raced at Hanover which would qualify the successful horses for the semi-final and final races for that class of horse at the end of the season. In its News Release preceding the race, OHHA put it succinctly as follows:

Now why would anyone ship to Sudbury when you can go to Hanover for the same money – GUARANTEED ???

At that time, OHHA was administering the OSS Program on behalf of the Ontario Horse Racing Industry Association (OHRIA) and intended to use funds from the OSS purse account in order to pay the purses of the Hanover race. The boycott of the Sudbury event was successful as only four horses were entered to race at Sudbury.

The Commission, in its Decision, was critical of OHHA and the manner in which it had breached its duty to the OSS Program in order to serve its own interests arising from the contract dispute at Sudbury. In the result, the Hanover race was declared not to be an OSS event and neither OSS purse monies nor points could be awarded for this race.

The conduct of OHHA regarding the OSS race at Sudbury was supported by the Applicants, particularly its local Directors Lamoureux and St. Amand, who were supporting the boycott of Sudbury at that time.

The Formation of the NHA

As indicated earlier in these Reasons, Danyluk testified that she attended at an OHHA meeting in late 1997 that discussed the current Sudbury contract proposal to OHHA. She indicated that many horsemen appeared prepared to accept the proposal with some changes but the OHHA Directors opposed it. She also testified that the OHHA Directors failed to communicate on an ongoing basis the substance of the contract discussions with Sudbury in early 1998.

Following the opening of racing in 1998 and because it continued to appear that many horsemen were prepared to race in accordance with the proposals being made by Sudbury, Danyluk indicated that a committee of four horsemen (which included her) decided to meet with MacIsaac to see if a contract could be entered into between Sudbury and a new association they were prepared to form. This same committee had been formed earlier to meet with the OHHA Directors on the contract issue.

Danyluk called a meeting of horsemen and approximately 50 attended. In the result, a sufficient number of horsemen indicated that they were prepared to join a new association and enter into a contract with Sudbury in substantially the same terms that Sudbury was offering to OHHA. The new association, the NHA, enacted By-laws (Exhibit 21) and entered into a contract with Sudbury dated July 24, 1998 (Exhibit 18). Since that time, the NHA was seen by OHHA to be its rival.

A key term in the NHA contract was that the horsemen would share revenue with Sudbury from teletheatre wagering on a 10% - 90% basis with Sudbury getting the 90%. This had been the main stumbling block in the negotiations between Sudbury and OHHA. In return for this ‘concession’ to Sudbury, it agreed to keep the track open all year for training and stabling purposes at no cost to the horsemen and to apply for an increased number of live race dates in the future. As Danyluk explained, this amounted to a trade-off that was acceptable to the NHA but obviously not to some members of OHHA.

Race Dates for 1999 and the Opening of that Season

When Sudbury applied to the Commission for race dates for 1999, OHHA opposed its application on the grounds that Sudbury’s contract with the NHA was unfair to horsemen. Notwithstanding, 75 live race dates were granted to Sudbury.

Prior to the opening of racing in May, 1999, OHHA renewed its boycott of Sudbury. In a Notice to all District 4 OHHA members (Exhibit 4), horsemen were advised that the OHHA local membership had voted to strongly urge that OHHA members, “from the 1^st^ day of racing (May 19, 1999), for a period of four weeks or until such time there is an OHHA contract, not to enter horses at Sudbury”. The request also extended to the entry for any OSS races. The Notice included a not-so-veiled threat that anyone who did not adhere to the request could have their OHHA membership revoked. The importance of continued membership in OHHA was that its insurance and pension benefits would continue to apply. It appears that in spite of similar threats in 1998, OHHA did not end up withdrawing these benefits from horsemen who chose to race at Sudbury.

LeDrew testified that he heard Sinclair tell some horsemen that he was going to claim a lot of horses away from them, that his group would close Sudbury and that they would bring MacIsaac “to his knees”.

Noweselsky testified that he raced in spite of the boycotts of both 1998 and 1999. He indicated that there was a great deal of unpleasantness and that Lamoureux called him a “scab” and tried to provoke a fight with him. Luckily, someone intervened.

The boycott in 1999 did not work as well. St Amand testified that OHHA’s boycott Notice indicated that it would be lifted four weeks after the opening of the 1999 racing season. MacIsaac testified that the Notice meant that the boycott would remain in place until there was a contract with OHHA. In all events, Sudbury did not receive any notices, written or otherwise, that the boycott had been lifted in 1999 and it considered that the boycott was ongoing.

The Removal of the Standardbred Signal from the Sudbury Teletheatres

In late 1998 and subsequent, as a further economic measure designed to pressure Sudbury to contract with OHHA, OHHA purported to enforce provisions in its respective contracts with a number of Southern Ontario Standardbred tracks which led to the withdrawal of the Ontario Standardbred signal from Sudbury. The result was that WEG, Flamboro and other tracks declined to send their signals to the Northern Ontario teletheatres. In addition, OHHA persuaded a number of out-of-province racetracks to withhold their signals as well. That situation remains to this day and it is still supported by some of the Applicants, notably Lamoureux and St. Amand.

June 1999 to the Present

When it became obvious that the OHHA boycott of 1999 was not working, several of the Applicants decided to try to enter their horses to race at Sudbury. When entries were received by the Race Secretary, Powell, he was instructed by LeDrew to refer the horsemen who had been supporting the boycotts to him. LeDrew testified that he wished to meet with each horseman before making a decision as to whether to accept his or her entries. LeDrew indicated that several horsemen did meet with him and, as a result of being satisfied that they would not be disruptive to racing at Sudbury, their entries were accepted. In addition, some of the horsemen were asked to sign a statement that they had no intention to boycott racing at Sudbury and that they would abide by the terms of the NHA contract (see Exhibit 3). Also, some horsemen were asked to meet with MacIsaac.

While Lamoureux and Bassis agreed to meet with LeDrew and did so, none of the other Applicants (except for the Villeneuves) would meet with either LeDrew or MacIsaac. For example, Rodriguez testified that prior to 1998, there was no requirement that in order to have an entry accepted at Sudbury, a horseman was required to meet with a member of management. As a matter of principle, he refused to meet with MacIsaac. Both Lamoureux and Bassis were not re-instated even though they did meet with LeDrew. The Villeneuves offered to meet with LeDrew and MacIsaac (see Exhibits 7 and 8) but they never heard back from them. MacIsaac said that he regretted this omission by him.

In the result, the entries of all of the Applicants were refused. OHHA, on behalf of the banned Applicants, complained to the Commission. In April, 2000, the Commission intervened and advised Sudbury that it had no basis for refusing these entries under the Rules of Standardbred Racing. Sudbury then invoked its rights under the TTPAct. (see Exhibits 12, 13 and 14). Furthermore, in November 2000, Jim Whelan, the President of OHHA, wrote to MacIsaac on behalf of the Applicants assuring Sudbury that the Applicants would not “engage in disruptive behaviour if permitted to race at Sudbury Downs” (Exhibit 2). Notwithstanding, the Applicants’ entries continued to be refused and all of the Applicants (except for Lalonde) were, for the most part, excluded from the backside at Sudbury.

The Applicants were allowed to attend at Sudbury in the grandstand, the slot room, at the main entrance and in the parking lot. They were also permitted to fully participate if they had an OSS horse entered to race. They were also allowed to attend at the Race Secretary’s office and the Standardbred Canada office on the backside if they were involved in a claim. On those occasions, they were accompanied by a Sudbury security guard.

Between April, 2000, and the date of this hearing, there is no evidence whatsoever that the Applicants have been physically (as opposed to economically) disruptive in any manner at Sudbury. At this hearing, all of the Applicants who gave evidence (Lamoureux, St. Amand, Rodriguez, Villeneuve, Lalonde, Sinclair and Bassis) undertook with the Commission and with Sudbury that they would not cause disruptions if they were permitted to race again in the normal manner. They were also prepared to abide by the terms of the existing NHA contract until the end of 2002.

Mitchell testified on behalf of the intervenor, WEG. He explained why it is important for racetracks to exercise their private property rights in order to protect their products and the integrity of racing. He acknowledged that the Sudbury dispute was a very unique one and involved exceptional circumstances.

Conclusions on the Facts

A substantial amount of LeDrew and MacIsaac’s evidence (and to a lesser extent the evidence of Powell) was based on information that they had received from various and mostly unnamed horsemen as to what some of the Applicants were saying and doing during the turbulent times in 1998 and 1999. Mr. Sternberg objected to this hearsay and what he characterized as “prejudicial” evidence. He pointed out that often the evidence involved double and even triple hearsay. We have taken this into account in reaching our conclusions on some of the evidence. However, LeDrew, MacIsaac and Powell were in constant contact with the horsemen at Sudbury and were in a good position to speak with them on a regular basis and to get an accurate sense of the overall mood on the backside. We have no doubt that they have described much of what was going on at Sudbury at all relevant time accurately.

We also have no doubt that prior to the opening of the racing seasons in both May, 1998, and 1999, there were disturbances and disruptions caused by Lamoureux, St. Amand and Rodriguez and to a much lesser extent by Bassis, Adams, Villeneuve, Sinclair and McConnell. There is no evidence of such conduct by Ms. Villeneuve or Lalonde. There is also evidence that all of the Applicants by their words and conduct, supported the activist steps taken by OHHA to disrupt live racing at Sudbury, the OSS event of June, 1998, and the flow of the Standardbred signal to Sudbury. This conduct sometimes involved intimidation at meetings by the use of threatening, argumentative and emotional language and by direct threats such as the threatened withdrawal of insurance benefits and the right to race in Ontario if they raced at Sudbury once OHHA became the sole bargaining agent for horsemen in Ontario. In addition, we are satisfied that St Amand, Rodriguez and Adams did glare in an intimidating manner at horsemen who had decided to race at Sudbury in defiance of the OHHA boycott in 1998.

All of the Applicants supported and some continue to support the economic measures taken by OHHA against Sudbury in order to persuade it to contract only with OHHA. This measure not only hurt Sudbury but it also hurt the horsemen racing there and all other horsemen in Ontario who stood to benefit from the distribution of Ontario Standardbred signal in Northern Ontario. All of the Applicants must share some measure of responsibility for supporting OHHA’s conduct.

On the other hand, we do recognize the right of individual horsemen and their representative organizations to openly and forcefully express their views on important contract proposals. However, in this case, when it finally appeared obvious that a sufficient number of horsemen were prepared for their own reasons to continue to race under the NHA contract, the Applicants continued to support the economic measures being taken by OHHA against Sudbury. There is often a fine line between strong and passionate advocacy and intimidation but we have no doubt that in this case, that line was crossed by some of the Applicants in support of OHHA’s position.

Sudbury is far from blameless for what has transpired. It put pressure on its horsemen in 1998 by threatening to not open the track for training and racing if a contract, satisfactory to it, was not in place. Sudbury is unique in Ontario. To some extent, it is geographically isolated from other Standardbred racetracks and the horsemen at Sudbury do not have the same alternative choices of racing venues as do most horsemen in Southern Ontario. This pressure that was put on them was considerable. Furthermore, we find that Sudbury acted in a somewhat high handed manner by insisting on personal interviews with the Applicants before they could return to racing and by refusing to accept their entries or permit most of them on the backside without appearing for those interviews. While Sudbury had a legitimate interest in trying to ensure that its live racing product would not be disrupted and in lessening the chances of animosity and stress at its racetrack, it demonstrated a lack of sensitivity with respect to the different circumstances of each of the Applicants. This lack of sensitivity was also apparent when it threatened other horsemen, such as Lynn Bond, with consequences simply because she was associating with and trying to assist one of the banned Applicants, Rodriguez, in picking up a claimed horse.

What this hearing has graphically demonstrated is how two feuding factions have grown farther and farther apart and how they both have ignored the public interest in relation to Standardbred racing in Ontario. What began as a contractual dispute, turned into a vendetta. How can it be in the public interest to support the boycott of live racing or to threaten not to open a racetrack for racing? How can it be in the public interest to support the boycott of an OSS race when the OSS program in Ontario is modeled as a leader in North America? How can it be in the public interest to seek to demean horsemen by insisting on subjectively judgmental interviews? How can it be in the public interest to support the removal of the Ontario Standardbred signal from Sudbury teletheatres and from their patrons in Northern Ontario who wish to wager on home grown Standardbred product?

The mandate of this Commission is found in Section 6 of the RCAct, which reads as follows:

The Commission shall exercise its powers and perform its duties in the public interest and in accordance with the principles of honesty and integrity, and social responsibility.(emphasis ours)

That is the context in which this case will be resolved.

The most obvious truth that has emerged from the conflict between Sudbury and these Applicants and OHHA is how they all put their own parochial interests ahead of the public, their customers, and permitted their strained relationships to escalate to the point where they have damaged the Standardbred industry of Ontario as a whole.

Disposition

We have responded as follows to the task before us which was to determine whether, given the past history that we have reviewed, the Applicants have satisfied us on clear and cogent evidence: a) that they should be permitted to return to race at Sudbury? Answer: Yes; b) that as of this date, there is a strong likelihood that their past conduct, including their ongoing support for the activities of the organization that represents them, OHHA, will not continue in the future to the point where racing at Sudbury will be disrupted? Answer: Yes; and, c) that as of this date, Sudbury is making an unreasonable business decision by excluding these Applicants? Answer: Yes.

In spite of what happened in 1998 and 1999, the Applicants should be given the opportunity to return to race at Sudbury and demonstrate that they can conduct their business in a professional and acceptable manner. While much can and has been said on behalf of Sudbury’s position, in our view, the public interest is best served in this unique case by permitting the Applicants to return to racing in their neighbouring racetrack, albeit on limited terms in some cases.

Lalonde and Ms. Villeneuve

Both Lalonde and Ms. Villeneuve should be given the opportunity to enter their horses to race at Sudbury so long as their entries meet all the conditions of the race in question and do not conflict with the Rules of Standardbred Racing. They should also be granted full access to all of the areas of the Sudbury premises that are ordinarily available to all horsemen. We find that the only reason why their participation was limited by Sudbury was because of their association with Lamoureux and Villeneuve respectively. Indeed, Sudbury has never had a problem with Lalonde’s attendance anywhere on the backside. It was only because of his partnership with Lamoureux in the ownership of his horses that these horses were not permitted to race.

Lamoureux, Adams, St. Amand, Bassis, McConnell, Rodriguez, Sinclair and Villeneuve

All of the other eight Applicants should be given the opportunity to enter their horses to race at Sudbury as well so long as their entries meet all of the conditions of the race in question and do not conflict with the Rules of Standardbred Racing. In addition, when any of their horses has been entered to race or if they are named to drive any horse in a particular race program, they should also be granted full access to all of the areas of the Sudbury premises that are ordinarily available to all horsemen along with the horse or horses scheduled to race on that occasion subject to the following limitation:

Access should commence no earlier than three hours prior to the first race on the program (qualifying, OSS or otherwise) and end no later than two hours following the last race.

Should there be any repetition of the kind of disruptions or disturbances that occurred in the past, the termination of access and the right to enter horses may be dealt with in the following manners:

1. by the Standardbred Judges at Sudbury should there be an alleged violation of any of the Rules of Standardbred Racing; and/or,

2. with Sudbury issuing a Notice pursuant to the TTPAct. In this event any party aggrieved by such Notice may lodge a complaint before the Director of the Commission or his delegate, who may, if so advised, refer the matter to a Panel of the Commission.

It is not the intent of the Commission to micro-manage the business of a racing association or of horsemen. However, if the Director of the Commission is satisfied that the issue involves “racing”, the matter may be placed before a panel of the Commission.

Needless to say, Sudbury may decide at any time to expand the limited access that has been ordered by the Commission in this Decision. Presumably, much will depend on what unfolds on the backside at Sudbury. In addition, at any time after December 31, 2003, any of the Applicants may apply to the Commission for a removal or alteration of the access limitations imposed.

In closing, we wish to thank counsel for their invaluable assistance in this matter. At all times, they exhibited the competence and professionalism of their calling.

DATED this 8^th^ day of November, 2002.

Stanley Sadinsky, Q.C.

Chair