IN THE MATTER OF THE
ONTARIO RACING COMMISSION ACT, 2000,
AND IN THE MATTER OF WILLIAM ROBINSON AND
WOODBINE ENTERTAINMENT GROUP
The Chair of the Ontario Racing Commission designated a panel to hold a hearing to determine:
a) whether or not the Commission had jurisdiction with respect to a complaint by William Robinson concerning the actions of Woodbine Entertainment Group in issuing a notice under the Trespass to Property Act; and
b) if the panel determines that the Commission has jurisdiction, to hear the merits of the matter.
On January 7, 2004, Vice-Chair Larry Todd and Commissioners Bernard Brennan, DVM and Brenda Walker convened to hear the issue of jurisdiction.
Arlen Sternberg appeared on behalf of William Robinson, David McCutcheon and Colleen Butler appeared for Woodbine Entertainment Group and Don Bourgeois appeared for the Administration.
On reading the exhibits and on hearing the submissions of the parties, the Ontario Racing Commission decided that it had jurisdiction to hear the merits of the matter. The Ontario Racing Commission gave oral reasons on January 7, which form part of the transcript. Written reasons for decision were to be provided subsequently and are attached to and form part of this Ruling.
On January 21 and 26, and February 12 and 14, 2004, the panel convened to hear and determine the merits of the matter.
On hearing the evidence of William Robinson, Randy Waples, Katrina Schmitz, Ian Fromovitz, John Walzak, Bruce Pollock, Hugh Mitchell, Jeh Stirling, Jamie Martin, Scott McKelvie, David Willmot and Pamela Bray, on reading the exhibits and on hearing the submissions of the parties, the Ontario Racing Commission determined that the public interest and the best interests of racing generally are served in this matter by not varying, rescinding or modifying the trespass notice of Woodbine Entertainment Group. Accordingly, the request by Mr. Robinson to have his rights to race at Woodbine Entertainment Group restored immediately and to have his entries accepted forthwith is dismissed.
Written reasons for decision are attached to and form part of this Ruling.
DATED this 24th day of February 2004.
BY ORDER OF THE COMMISSION
Jean Major Executive Director
REASONS FOR DECISION
(Jurisdiction)
This is a matter that was heard on January 7, 2004 pursuant to a Directive of the Chair (Exhibit 3) to determine whether this panel of the Commission has jurisdiction to conduct a hearing on the merits as requested by trainer, William Robinson.
The precise issues before the panel were delineated in a Notice of Hearing, being Exhibit 4 before us. That Notice of Hearing stipulated in particular, "that the purpose of the hearing is to determine the jurisdiction of the Ontario Racing Commission to hold a hearing at the request of William Robinson with respect to the issuance of a Notice under the Trespass to Property Act (Ontario) to Mr. Robinson by Woodbine Entertainment Group."
The interests of Woodbine Entertainment Group (hereinafter "WEG") were represented at this hearing by David McCutcheon and Colleen Butler. Arlen Sternberg appeared for Mr. Robinson and Don Bourgeois for the Administration of the Ontario Racing Commission.
Mr. Bourgeois filed a Notice of Motion (Exhibit 1) at the commencement of the hearing. This motion sought, inter alia, an adjournment of the hearing on a number of grounds. After hearing all counsel on the motion, it was agreed by all counsel not to proceed at present with Mr. Bourgeois' motion and to "table it" without prejudice to it being brought on at a later date should the jurisdiction of this Commission be established.
It should be noted that Mr. Sternberg filed on consent as Exhibit 2 to this proceeding his written response to the Administration's Notice of Motion, as above.
No other motions were filed and all counsel confirmed that no one was seeking any interim relief within this proceeding. We heard limited evidence on the issues although counsel by agreement did provide us with a general background and factual matrix behind the matter.
After hearing the jurisdictional arguments and responses of all parties, we unanimously concluded at the day's end that there was jurisdiction with the Ontario Racing Commission in the circumstances before us to hear the merits of Mr. Robinson's request concerning a Notice under the Trespass to Property Act received by him from Woodbine Entertainment Group. The parties were advised of our conclusion and all agreed, through counsel, to dates for the inquiry into the merits of the matter as contemplated by the Directive of the Chair of the Ontario Racing Commission as set out in Exhibit 3. All counsel were in accord with this process and to proceeding to hear the matter on its merits at future fixed dates.
Mr. McCutcheon, in his opening remarks, formally requested that we provide written Reasons for our decision as set out above. In advising of our decision that the Ontario Racing Commission had jurisdiction in this matter, we indicated that our written Reasons as required by Rule 11.1(7) of the Ontario Racing Commission Rules of Procedure and s.17 of the Statutory Powers Procedure Act would follow at a future date as contemplated by Rule 11.1(8) of the Commission's Rules of Procedure.
The following are accordingly our unanimous reasons for decision.
It was common ground before us that Woodbine Entertainment Group (hereinafter "WEG") issued Exhibit 5, a Notice under the Trespass to Property Act to Mr. Robinson on or about November 20, 2003. This notice effectively prohibits Mr. Robinson from entering upon any part of Woodbine Racetrack and major specified portions of Mohawk Raceway.
Additionally, this Trespass to Property Act notice further states:
"Take notice that you are hereby prohibited from entering upon the premises of either Woodbine Racetrack or Mohawk Raceway for the purpose of participation in any way in either programmed races or qualifying races. Entries of your horses will not be accepted."
There was furthermore no issue that WEG's two racetracks, as above, are the premiere harness racing venues in Canada and perhaps even in North America. Likewise, it was uncontroverted that Mr. Robinson is one of North America's leading trainers of standardbred race horses and the leader in many, if not all, training statistics and measurable criteria for 2003 in Canada and likewise throughout North America.
Mr. Robinson's counsel urged upon us the wisdom of selected passages of the Decision of the Ontario Court of Appeal in The Ontario Harness Horse Association v. The Ontario Racing Commission et al 2002 CanLII 41981 (ON CA), [2002], 62 O.R. (3d) 44 (leave to appeal to the Supreme Court of Canada dismissed). That case deals in detail with a determination as to whether this body, in the exercise of its statutory jurisdiction under the Ontario Racing Commission Act, 2000, has the power "in certain circumstances" to modify or review the exercise of a racetrack owner's common law and statutory (Trespass to Property Act, Ontario) private property rights. We were referred to the words of the Honourable Mr. Justice Morden at paragraph 43 of that decision in respect of the court's view of the interpretation to be given to "govern" and "regulate" within s.7 of the Ontario Racing Commission Act, 2000:
"With respect to the potential scope of 'govern' and 'regulate', it seems to me that the words which, for present purposes, may fairly be regarded as meaning the same thing, necessarily involve the power to alter the existing legal landscape in some ways – providing for some modification of legal rights, including property rights."
Justice Morden continued with further observations at paragraph 44:
"I do not think it debatable that the grounds on which a licensed racetrack owner exclude a licensed horse owner, trainer, driver, etc. from racing is a matter which comes within 'horse racing'."
Both Mr. McCutcheon and Mr. Bourgeois accepted the binding nature of The Ontario Harness Horse Association v. The Ontario Racing Commission, supra. However, Mr. McCutcheon in his persuasive fashion urged upon us additional aspects of the written views of the Ontario Court of Appeal in The Ontario Harness Horse Association v. The Ontario Racing Commission, supra. It was the position of WEG that there must be compelling evidence in two distinct areas before jurisdiction is established to review the exercise of a racetrack's private property discretion by this body.
WEG urged us to conclude that jurisdiction only lay with this body if two prerequisites were met, as follows:
(a) racing issue "generally" or in a broad sense, and
(b) public interest reason for the jurisdiction to be assumed.
We entirely agree that any exercise of powers by this Commission must involve a "public interest" component. Section 6 of our enabling statute mandates that, "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."
The prerequisites urged upon us by WEG are also dealt with by the Court of Appeal in its decision above. Justice Morden at paragraph 48 confirmed that the jurisdiction being considered herein should be assumed when the issues involve "the good of horse racing generally". In this respect, we find the second part of Mr. McCutcheon's argument persuasive.
We further note that the opinion of Morden, J.A., confirms that the interests of all participants in horse racing, i.e. track owners, horse owners, drivers, trainers, and track patrons, etc., comprise the yardstick by which to measure "horse racing generally". For this reason, we cannot entirely accept the complete interpretation propounded by WEG.
Jurisdiction to review the exercise by WEG of its private property rights is not necessarily limited to monumental industry wide issues. The decision of the Court of Appeal involved the interests of approximately ten licensees. The rights of an individual licensee, whether racetrack or individual trainer, can under s.7 be reviewed on their individual merits against the backdrop of "the good of horse racing generally" and the "public interest". This latter prerequisite may dictate that many disputes involving the trespass remedy between licensed racetracks and other licensees of this Commission will be beyond review.
In this respect, there is wisdom in the conclusions of the former Chair in the Reasons for Decision of In the matter of the Racing Commission Act 2000, and in the matter of Gerald Lamoureaux, Arthur Adams et al", Ruling No. SB22/2002 at page 7 thereof where Chair Sadinsky notes:
"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'."
We were asked by WEG to conclude on limited evidence that WEG's interest in its notice to Mr. Robinson under the Trespass to Property Act was coincidental with the public interest. This we cannot do at this stage without hearing WEG's evidence and obviously the responding evidence of Mr. Robinson.
We therefore have to assess whether this matter involves "the good of horse racing generally" and involves, in the words of Chair Sadinsky, as above, "primarily racing". It can be difficult to make such a determination in a segregated hearing that involves initial determination of jurisdiction and thereafter, (if established) an assessment of the issue on the merits. It may be that jurisdiction and an assessment on the merits must, of necessity, be heard together in a combined format.
Mr. McCutcheon did acknowledge that the absence of race horses from the successful stable of William Robinson could affect the quality of racing that WEG presents to the public. It was also stated that the quality horses from the Robinson barn could, however, be replaced. Whether this is factual or not (and we make no such conclusion today), this is clearly a racing issue that involves the public interest and "the good of horse racing generally" at Ontario's premiere racing venue.
WEG made it abundantly clear that the quality and integrity of its racing product was its paramount concern as the premiere harness racing operation in Canada. We applaud their priorities in this respect. However, this laudable orientation on the part of a licensed racetrack cannot and does not divest the Commission of its statutory mandate to govern and regulate horse racing and, in particular, to be guided in that pursuit by the directives given by the Court of Appeal in The Ontario Harness Horse Association v. The Ontario Racing Commission, supra.
We find that the exercise of this jurisdiction of necessity involves a balancing of the individual property rights of the track owner against the rights of the licensee who has been expelled. We, of course, cannot complete this balancing without a full evidentiary hearing on the merits of the issues between WEG and Mr. Robinson.
We are, however, able to find on the limited evidence presented to us that at the subject dispute between WEG and Mr. Robinson unequivocally involves "primarily racing" for the following reasons:
a) WEG indicates that their Trespass to Property notice was triggered by its concern for fairness and integrity in racing and the optics and appearance of same;
b) WEG's trespass notice removes a large stable of quality horses from racing at Canada's premiere two venues for harness racing;
c) Mr. Robinson is among the leading trainers and conditioners of standardbred race horses; and
d) The size and strength of the Robinson stable is indicative of the support of a significant number of owners with a large capital investment in the industry. These owners are, inter alia, a component of the "public interest".
For the reasons above, we unanimously conclude that there is jurisdiction to hear evidence on the competing positions of Mr. Robinson as a licensed trainer and WEG as a licensed racetrack owner with respect to its expulsion of Mr. Robinson and his horses from competition at WEG's two standardbred racing facilities.
In closing, we wish to emphasize and underline that neither this decision nor, in our view, any reasonable reading of the decision of the Court of Appeal in The Ontario Harness Horse Association v. The Ontario Racing Commission, supra, destroys WEG's statutory rights under the Trespass to Property Act or its parallel common law rights as a property owner. These rights, much like the rights of an individual trainer operating on his own farm property or training centre, continue to exist in all respects. Morden, J.A., however, noted that there could be "some modification of legal rights, including property rights" in circumstances where the facts dictated review for "the good of horse racing generally" and involve predominately horse racing.
The above are the unanimous reasons for decision of this panel.
DATED at Toronto, this 24th day of February, 2004.
____________________________________
LarryTodd Vice Chair
REASONS FOR DECISION
(Merits of Application)
INTRODUCTION
In compliance with the direction of the Chair dated December 22, 2003, under Section 12 of the Ontario Racing Commission Act, 2000, this panel convened on January 21, January 26, February 12 and February 14, 2004 to hear and determine the merits of the respective positions of licensed trainer, William Robinson, and licensed racetrack operator, Woodbine Entertainment Group with respect to a Trespass Notice issued to Mr. Robinson.
This directive is set out in Exhibit 3 to this proceeding and was followed by a notice of hearing dated January 14, 2004, being Exhibit 6 herein. This panel consisting of Commissioners Walker, Brennan and Vice Chair Todd had already heard some limited evidence and lengthy legal submissions on January 7, 2004 with respect to whether there was jurisdiction in the Ontario Racing Commission to hear this matter. That matter was decided in the affirmative and separate Reasons have been delivered in respect of that finding.
At this hearing, Arlen Sternberg represented William Robinson while David McCutcheon and Colleen Butler appeared for Woodbine Entertainment Group (hereinafter "WEG"). Don Bourgeois appeared for the Administration of the Ontario Racing Commission throughout.
MOTION
At the commencement of the hearing on January 21, 2004, Mr. Bourgeois brought on a notice of motion that had been filed as Exhibit 1 on January 7, 2004 and by the agreement of all counsel at that time tabled until this application was heard on its merits. This panel on January 21, 2004 heard lengthy arguments with regard to the motion. We took cognizance of Exhibit 2, Mr. Sternberg's letter of January 6, 2004 to the Administration in which it was specifically agreed that this panel was the appropriate body to hear a further statutory appeal of William Robinson against another order of this Commission, being Ruling SB30268.
After deliberation, this panel gave oral reasons with regard to Mr. Bourgeois' motion wherein we reserved our decision on the Administration's request to adjourn this hearing until we had heard all the evidence and argument on the merits. The reasons for this decision given are part of the transcribed record.
It should be noted that in the lengthy argument of counsel at the end of the hearing on the merits heard well into the evening of February 14, 2004 that no one advanced any support or further argument in support of the adjournment sought in Exhibit 1.
EVIDENCE
In support of his case, Mr. Sternberg called as witnesses, Mr. Robinson himself, driver Randy Waples, owner Bert Smith, owner Ian Fromovitz, Katrina Shmitz, John Walzak, and Bruce Pollock.
In support of the position of WEG, Mr. McCutcheon and Ms Butler called Hugh Mitchell, Jeh Stirling, Jamie Martin, Scott McKelvie, David Willmot and Pamela Bray.
Mr. Bourgeois called no evidence on behalf of the Administration of the Ontario Racing Commission.
Additionally, the panel had some twenty-four written exhibits filed with it, all of which were received with the concurrence and agreement of counsel.
POSITION OF THE PARTIES
Mr. Robinson's case as put to us involved the following major tenets:
(a) WEG, by excluding Mr. Robinson from its facilities and entering horses to race, was becoming a de facto regulator of the industry;
(b) Mr. Robinson, as the current holder of a subsisting and valid O.R.C. license should be allowed to race at WEG and any other licensed racing association in Ontario;
(c) The decision of the Court of Appeal in Ontario Harness Horse Association v. Ontario Racing Commission et al (2002) 2002 CanLII 41981 (ON CA), 62 O.R. (3d) 44 (C.A.) is determinative of the issue; and
(d) Horse racing in Ontario has a regulator, i.e. this Commission, and doesn't need a second regulator, i.e. WEG.
The position of WEG proffered before us can be summarized by the following groupings of arguments;
(a) WEG's private property rights, both by statute, the Trespass to Property Act, and at common law are not "trumped" by Mr. Robinson's current license from the Ontario Racing Commission;
(b) the decision of the Court of Appeal in Ontario Harness Horse Association v. Ontario Racing Commission supra, did not abrogate or render nugatory WEG's rights as the owner of private property;
(c) WEG's own "Standardbred Rule Book" (Exhibit 9) contains contractual provisions that specifically preserve its rights to exclude racing participants such as Mr. Robinson;
(d) both the public interest and WEG's business interest mandate this panel "not modify" WEG's private property rights by directing that Mr. Robinson's racing privileges be restored; and
(e) due process is not applicable to WEG's private property rights.
Mr. Bourgeois, on behalf of the Administration, argued at length that no order should issue for WEG to reinstate Mr. Robinson's ability to race at WEG for reasons that included:
(a) this Commission should not become "a trespass court" or forum for the resolution of private contract disputes;
(b) there was insufficient reason or a lack of "the ample evidentiary base" for this panel to modify in any way the exercise of WEG's property rights;
(c) this panel should not interfere with WEG's actions given that "horse racing must be conducted and be seen to be conducted with the utmost integrity";
(d) Mr. Robinson's case has not satisfied the high onus on the applicant in reviews such as; and
there is no public interest issue involved here and such is a precondition to the exercise of jurisdiction.
STATUTORY AND LEGAL CONTEXT
All counsel before us proffered their interpretation of the parameters and meaning of the words of Morden, J.A., in Ontario Harness Horse Association v. Ontario Racing Commission et al (2002) 2002 CanLII 41981 (ON CA), 62 O.R. (3d) 44 (C.A.) (leave to appeal to the Supreme Court of Canada refused) and such was to be expected.
We further observe that all senior counsel before us likewise represented an interest in the 2002 proceedings before the Court of Appeal, as above, and the leave application to the Supreme Court of Canada.
It did, unfortunately, appear from time to time that certain of the parties in their evidence and argument demonstrated a reluctance to accept the decision cited above and some of its clearer directives with respect to our jurisdiction under the Ontario Racing Commission Act, 2000. We would hope that this rigidity is not demonstrative of a disrespect for both the judicial system that authored the decision and this Commission that is directed in both in its regulatory and adjudicative functions by decisions such as in Ontario Harness Horse Association v. Ontario Racing Commission et al supra.
Evidence warning this panel that the subject issues could well be back to the Court of Appeal quickly "if need be" are not helpful to the evidentiary foundation that is required for determination of the serious matters before us.
As indicated in our antecedent decision on jurisdiction in this matter, we are proceeding under the provisions of Section 7 of the Ontario Racing Commission Act, 2000 whereby we are vested with power to "govern, direct, control, and regulate horse racing in Ontario".
Additionally, Section 7(b) and (k) of the Act give the Commission jurisdiction to:
"(b) to govern, control, and regulate the operation of racetracks in Ontario at which any form of horse racing activity is carried on"; and
"(k) to hold hearings relating to the carrying out of its objects and powers…."
The crux of the issue before us is the intersection of the Commission's Section 7 jurisdiction with the statutory and common law private property rights of WEG. When this occurs, we now have the assistance received from the Court of Appeal at paragraph 56 of Ontario Harness Horse Association v. Ontario Racing Commission et al supra, as follows:
"Whether or not the Commission takes any action after holding a hearing will turn, of course, entirely on the facts which it finds and, then on the exercise of the broad discretion which it undoubtedly has."
PUBLIC INTEREST
The exercise of the above discretion identified by Morden, J.A., is, of course, further bound by the mandate of Section 6 of the Ontario Racing Commission Act, 2000 so that any action must be, "in the public interest and in accordance with the principles of honesty and integrity, and social responsibility."
We have concluded on the evidence before us that the public interest here is comprised of the interests of the wagering public that supports horse racing financially, the horse owners that supply the capital to purchase the racing stock, the drivers, trainers, grooms and numerous track employees working in the industry, the racing associations, including WEG, that operate venues for racing, and the massive agricultural sector that supplies all the varying needs of the horse racing industry. The interest of all of these entities must be considered as far as the evidence permits along with the juxtaposed interests of WEG and Mr. Robinson.
The interests of all the above have to be balanced when considering the use of the jurisdiction unequivocally affirmed by the decision in Ontario Harness Horse Association v. Ontario Racing Commission et al supra, when there is a "horse racing" issue.
In the consideration of the various interests at hand, we wish to confirm the fundamental necessity that horse racing in Ontario must be seen as beyond reproach. As has been noted by this Commission in Flamboro Downs Holdings and the Belmont Hotel, S.B. 129/1995, July 14, 1995:
"Horse racing must be conducted and be seen to be conducted with the utmost integrity. The future of the industry depends on maintaining the public's confidence that it is being operated totally 'above board'."
THE FACTS
We have found as fact the following material matters on the evidence presented to us. Credibility assessments and evidentiary conflicts were not central or significant to our findings set out below.
Mr. Robinson, as a trainer of standardbred race horses, has demonstrated a record of great success and skill over many years. He was the 2002 and 2003 O'Brien Award winner for excellence in training standardbred race horses in Canada.
Mr. Robinson in 2003 trained a top flight stable whose horses won more substantially more in purse earnings than any other trainer in North America.
We note that Mr. Robinson "did not participate" in the horse racing industry in either 1998 or 2001, apparently because "maybe he didn't have a license". Mr. Robinson's stable of race horses requires that the majority of them race on the WEG racing circuit if racing at all in Ontario. This is substantially as a consequence of the high quality of the equine athletes entrusted to his training. Mr. Robinson currently trains approximately 100 horses with a staff of approximately 50 employees at his farm training venue.
Mr. Robinson has had a number of positive equine drug tests over the years. He recalled nine or ten of these of which "seven were minor and three major". Mr. Robinson's various positive equine drug tests, according to him, were the result of "mistakes" by his help, "mistakes" with the products being used, or "mistakes" by the veterinarians, but "always a mistake" or "carelessness".
The exact details and particulars of Mr. Robinson's history of positive equine drug tests was documented at Exhibit 8, Tab 7. The combination of the success of Mr. Robinson's stable combined with the history of equine drug positives appears to have made him "somewhat of a lightening rod with this integrity issue".
The standardbred race horse, Flight Plan, raced at Mohawk Raceway on November 8, 2003. Mr. Robinson was the trainer of this horse. A TCO2 blood test on Flight Plan on that date revealed a reading beyond the prescribed limits. This was referenced as a "positive test" throughout the evidence before us.
WEG's race secretary advised Mr. Robinson by phone on or about November 14, 2003 that WEG would not be accepting further entries from the Robinson stable. Exhibit 5, being WEG's Trespass Notice, was mailed to Mr. Robinson shortly after the verbal advice from the race office as above. No meetings or hearings of any kind between WEG and Mr. Robinson took place regarding the issue.
Flight Plan was subsequently put into a 72 hour quarantine at Mohawk Raceway commencing November 18, 2003 pursuant to the provisions of Rule 22.38.7 of the Rules of Standardbred Racing to determine if the elevated TCO2on November 8, 2003 was "physiologically normal" for this particular horse. The results of this quarantine are set out at Exhibit 7, Tab 7, and Exhibit 22.
The judges of the Ontario Racing Commission held their required hearing with Mr. Robinson after the quarantine and on December 20, 2003 found a violation of TCO2 Rule and levied a $100,000.00 fine and a five year suspension against Mr. Robinson.
The Executive Director of the Ontario Racing Commission on December 24, 2003 issued the first of several time limited stays of the preceding ruling of the judges after Mr. Robinson filed a notice of appeal as permitted by the Rules of Standardbred Racing on or about December 23, 2003.
Accordingly, Mr. Robinson throughout the period of this hearing was able, if so advised, to race his stable at Ontario's numerous other standardbred racetracks or in any other North American jurisdiction for which he was licensed.
We accept Mr. Robinson's evidence that it is substantially "not practical" to race on an extended basis at other Ontario racetracks aside from WEG because of the high class of "A track horses" in his stable. The reduced racing opportunities for Mr. Robinson because of WEG's exclusion has materially reduced his income and jeopardized the long term viability of his stable. While Mr. Robinson feels the quality of competition has been lessened on the WEG racing circuit by his exclusion, we were given no objective evidence or standards by which to determine this issue and, accordingly, cannot make a finding in this respect.
We were advised by both WEG's counsel and their witnesses that should Mr. Robinson be successful in his TCO2 appeal with respect to Flight Plan and be exonerated, that they would rescind their trespass notice and immediately resume taking entries from him. Mr. Robinson currently has two Ontario Racing Commission rule violations that he is challenging through judicial review proceedings in the Divisional Court. We have additionally before us a prior Divisional Court finding that noted "reprehensible conduct" on the part of Mr. Robinson.
Both OHHA and HBPA through Messrs. Walzak and Pollock respectively, propounded their view with great conviction and force that WEG's eviction of Mr. Robinson while he held a valid O.R.C. license was akin to "vigilante justice". They strongly advocated that WEG should not be permitted through the Trespass Act to supplant the regulator.
There was agreement by virtually every witness that horse racing requires "a level playing field" with no equine drug cheating or even the appearance of same. All agreed that fairness and integrity and the perception of same were paramount to the interests of horse racing.
WEG's Standardbred Rule Book, Exhibit 9, which Mr. Robinson acknowledges affirms as follows:
"It is a privilege, not a right, to use the Premises and Race at WEG Any conduct determined by WEG, in its sole and absolute discretion, to be injurious to the sport of horse racing or not in the best interests of the sport or horse racing, may result in the imposition of a penalty…."
We heard evidence of two similar evictions of thoroughbred trainers by WEG in 2002. These terminations of training rights wrought some significant hardship to the individuals involved before each was exonerated by a subsequent hearing and decision of this Commission. WEG views these wrongful terminations of training privileges as "a regrettable situation" that is required to protect the product integrity and investment. "Regrettable" may be an understatement.
The evidence indicates that the Trespass Act remedy and its occasional use and availability is an essential tool in the pursuit of the business interests of WEG. WEG indicated before us that its use of the Trespass Act remedy with respect to members of the racing community was a matter of last resort and it was used "sparingly". Two or three trespass notices per year on the racing side of their business appear to be the norm.
It is clearly the corporate goal of WEG with respect to standardbred racing to attract the best horses and the best horse people from all over North America and even parts of Europe. WEG, like many of the presenters of horse racing at the present time, faces substantial competition for the public's wagering and entertainment dollar. WEG feels that its racing product has to be free from any integrity question so that it "can differentiate itself from the pack".
Additionally, corporate policy at WEG mandate a setting of its standards, including those with respect to the racing integrity issue, higher than anyone else in horse racing. WEG sees this standard as essential to protect and nurture both its bettors as well as its capital providers. We find as a fact that WEG's Trespass Notice delivered to Mr. Robinson was not motivated by any personal animosity or bad faith on its part. Entries from Mr. Robinson had previously been refused for a short time in the spring of 2002 until a consensual arrangement was made for all of Mr. Robinson's horses to race for a period of time out of the retention barn.
There has been no loss of wagering on either WEG's live racing product or simulcast product from WEG that anyone can identify as being attributable to the absence of the high quality horses of the Robinson stable racing at WEG since late November 2003.
WEG utilized its trespass rights against Mr. Robinson because of:
(f) Mr. Robinson's record of equine drug violations, as above;
(g) Mr. Robinson's new November 8, 2003 TCO2 positive on Flight Plan, as above; and
(h) feedback from both owners and betting customers of WEG regarding the apparent continuum of serious equine drug violations.
WEG's two Ontario racetracks, Woodbine and Mohawk, are between 65% and 70% of the horse racing industry by wagering dollars in Ontario. In this position of obvious industry leadership, WEG, despite the ruling in Ontario Harness Horse Association v. Ontario Racing Commission et al supra, reconfirmed before us most emphatically that they feel they can proceed with trespass notices unfettered in any regard. Both Mr. Mitchell and Mr. Willmot affirmed their counsel's position delineated at Exhibit 7, Tab 3:
"WEG has the unconditional statutory and common law right to exercise its property trespass remedies without review."
We further note that WEG has invested approximately $160 million of new capital in horse racing since the mid-1990s and now employs nearly 3,000 people. To protect these jobs and its investment, WEG has concluded that its racing product must be "honest". WEG customers and bettors require confidence that the horse racing presented by WEG is executed on a drug free level playing field basis.
CONCLUSIONS ON THE FACTS
As we observed in our discussion regarding jurisdiction herein, the Ontario Racing Commission, as a consequence of our enabling legislation and the Court of Appeal's interpretation in Ontario Harness Horse Association v. Ontario Racing Commission et al supra, has jurisdiction to modify WEG's private property rights in the appropriate circumstances. Such review or modification appears to us to involve the consideration of three prerequisites as follows:
(a) an issue that is primarily horse racing;
(b) "the good of horse racing generally"; and
(c) the statutory public interest assessment.
Our statutory mandate and the Court of Appeal interpretation of same does not allow us to make the decision on the simple basis presented to us in argument. It is not whether "a valid O.R.C. license trumps the Trespass Act" or vice-versa. Furthermore, the issue cannot be decided on whether "there is one regulator or two" for horse racing. These submissions and arguments, while at first appealing, are fascicle and in error.
What is required is the exercise of our discretion guided by the best interests of horse racing in general and the broader public interest. In order to modify WEG's clearly extant rights to "trespass" or evict an O.R.C. licensee in an issue that is primarily horse racing, as here, Mr. Robinson must satisfy us on clear and cogent evidence that our intervention and modification is required. Mr. Robinson has presented a reasoned and rational case in this regard. He, as the applicant, however, bears the burden of proof. In this respect, we reference In the matter of Gerald Lamoureux, Arthur Adams et al v. Sudbury Downs, O.R.C. Ruling No. SB 22/2002, p. 6, and the words of Chair Sadinsky there on onus.
We did, however, find Mr. Robinson's case deficient in one important respect. We heard very little evidence of how future equine drug positives or "mistakes" were going to be controlled.
WEG's position, as presented to us, is sound and reasonable based on their business interests, their business goals, the economic interests that they are currently protecting and seek to protect, and a consideration of the well-being of racing in general. We find that the foundation and basis of the vast majority of WEG's position is both unimpeachable and laudable.
Therefore, in our view, the public interest and the best interests of racing generally are served in this matter by our not varying, rescinding, or modifying the Trespass Notice of WEG directed to Mr. Robinson. Accordingly, the request by Mr. Robinson as set out in Exhibit 3 to have his rights to race at WEG restored immediately and to have his entries accepted forthwith, is dismissed.
Before concluding, we would be remiss if we did not express a concern that may have been observed from time to time throughout the evidence as it evolved. The refusal by WEG to accept the entry of a horse owned by Katrina Shmitz that was clearly never a part of the Robinson stable, on the facts before us, was over-reaching and excessive. We were pleased to see that this exercise of WEG's trespass rights was rectified, apparently of their own volition and without the need for formal proceedings.
In closing, we wish to thank both counsel and the parties for their cooperation and assistance in having this complex matter scheduled, heard and argued to completion in such a timely fashion. Their assistance and cooperation is greatly appreciated.
The above are the unanimous reasons for decision of this panel.
DATED at Toronto, this 24th day of February, 2004.
____________________________________
LarryTodd Vice Chair