IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c. 20;
AND IN THE MATTER OF 2006 LIVE AND INTERTRACK RACE DATES
On October 27, 2005, Commissioner David Gorman presiding as Panel Chair, and Commissioners Bernard Brennan and Jane Garthson convened to hear the race date applications from Belleville Agricultural Society for Quinte Exhibition & Raceway, Kawartha Downs Limited for Kawartha Downs Raceway, 405730 Ontario Ltd. for the New Hiawatha Horse Park, and from Windsor Raceway Inc. for Windsor Raceway. The race date applications for Quinte Exhibition & Raceway, Kawartha Downs and the New Hiawatha Horse Park were dealt with under separate rulings.
On November 30, 2005, the Panel reconvened to continue the hearing on the race date application for Windsor Raceway. The racetrack operator, Windsor Raceway Inc., requested and was granted leave to withdraw its Application and submit a new application. The Panel heard argument on procedural matters which were reserved. The hearing was adjourned.
On December 13, 2005, the Panel reconvened the hearing with respect to the Windsor race date application. The Panel delivered a separate oral Ruling on the procedural issues at the outset of the hearing.
The Administration of the Ontario Racing Commission was represented by Brendan Van Niejenhuis, Legal Counsel, John Blakney, Executive Director and Wendy Hoogeveen, Manager of Information Services. Chris Kruba appeared as counsel for the Applicant, Windsor Raceway Inc. In addition, Arlen Sternberg appeared as counsel and John Walzak as agent for the Ontario Harness Horse Association, which made submissions to the Panel concerning the Application.
The Ontario Racing Commission, after reviewing the written submissions and hearing oral representations from the applicant and the Ontario Harness Horse Association, conditionally approved the following:
Live Standardbred Race Dates
Windsor Raceway 125
Simulcast Race Dates
Windsor Raceway 364
The post times were approved as applied for.
The Panel ordered, however, that approval is conditional upon receipt no later than 5:00 p.m. Monday, January 16, 2006 of a further revised 2006 race date Application for Windsor Raceway for the addition of a minimum of six (6) days to the 2006 racing schedule.
The calendar of approved Live Dates form an attachment to the ruling.
Dated at Toronto this 19th day of December, 2005.
BY ORDER OF THE COMMISSION
John L. Blakney
Executive Director
REASONS FOR DECISION
BACKGROUND
By Notice to the Industry of October 21, 2005 Chair Lynda Tanaka ordered that four associations make oral and written presentations to a Panel of the Commission with respect to their applications for 2006 live and simulcast race dates. The applications for all other associations were dealt with by the Board of the Ontario Racing Commission at its meeting on October 20, 2005. The Panel consisted of Commissioner David Gorman (Chair) and Commissioners Bernard Brennan and Jane Garthson.
The four associations were Belleville Agricultural Society for Quinte Exhibition & Raceway, Kawartha Downs Limited for Kawartha Downs Raceway, 405730 Ontario Ltd. for the New Hiawatha Horse Park, and from Windsor Raceway Inc. for Windsor Raceway. The first three named have since made appearances before the Panel. Rulings have been made and published with respect to these applications. The hearing of the application from Windsor Raceway Inc. (Windsor) for Windsor Raceway began on October 27, was adjourned to November 30 and further adjourned to December 13, 2005.
During the Hearing on November 30th, Windsor advised that it was withdrawing its original application and would be submitting a "fresh" application. Certain legal and procedural matters arose during the course of the Hearing on this date. The Panel requested of each counsel that they make submissions with respect to the matters raised, and each did so in a timely manner.
On December 13th, the Panel was asked to consider a "fresh" application for Windsor Raceway for 125 live racing dates in 2006, an intertrack calendar of 364 dates and post times for live racing.
Appearing on behalf of the applicant (Windsor) was counsel Christopher Kruba. The Ontario Racing Commission was represented by counsel Brendan Van Niejenhuis. The Ontario Harness Horse Association (OHHA) made representations through counsel Arlen Sternberg and Executive Director John Walzak. The Panel was represented at the December 13 Hearing by outside counsel Linda Fuerst.
The Panel received considerable written information and heard extensive oral submissions.
DECISION
The original application for 2006 from Windsor was for 103 live race dates, a significant decline from the 131 dates it was approved to operate in 2005. Its "fresh" application was for 125 dates.
No issues were raised with respect to Windsor's request for 364 simulcast dates, or with respect to proposed post times.
The Panel ordered that Windsor's application for 125 live races dates in 2006 be approved, along with 364 intertrack dates and post times as applied for.
This approval was conditional upon Windsor reviewing its schedule and adding a minimum of six (6) dates to that schedule somewhere during the year. Windsor was ordered to make a supplementary application to the Commission for at least six additional dates by not later than 5:00 p.m. Monday, January 16, 2006.
At the Hearing of November 30 an issue arose concerning which entity is actually a Party to these proceedings and more specifically, was OHHA a Party? Flowing from that were questions surrounding the disclosure of certain sensitive financial information that had been filed with the Administration by Windsor. The Panel invited submissions from each counsel, then adjourned the Hearing to December 13 in order to allow counsel ample time to respond.
Each of the submissions was received in good time, and with the assistance of newly engaged outside counsel, the Panel reviewed the material in detail. The Panel decided that Windsor Raceway Inc., as the Applicant and the ORC Administration, effectively the Respondent, were Parties to the Hearing, and that OHHA was not a party. In accordance with the Commission's usual practice however, OHHA was given the right to make oral submissions.
As a result of this decision, OHHA would not receive any information with respect to sensitive financial information that Windsor had previously filed with the Administration. Such disclosure to OHHA was, in the Panel's view, not necessary in order for OHHA to have a satisfactory understanding of the issues.
The Administration took no position with respect to the following matters before us.
During the Hearing it was apparent that some matters were more easily agreed to than others.
Each of the participants who spoke to the issue agreed that the Commission's Order in Ruling GEN 001/2005 requiring the track to race an average of 15 races per day did not work well. Accordingly, no such order was made for 2006. However, the Commission expects Windsor to offer a minimum of 10 races per day, and more when the horse supply warrants.
There were no issues raised with respect to post times or intertrack dates.
There was significant agreement from OHHA to portions of the Windsor application. Except for some minor tweaking and the addition of four Thursdays in February, OHHA said that it basically agreed with the January through June portion of the application.
There was also basic agreement with the November-December schedule presented by Windsor (OHHA would add New Year's Eve to the schedule).
The real issues revolve around racing at Windsor in July, August, September and October. The availability of horses during this time frame became the critical talking point for Windsor and for OHHA.
On one point both Windsor and OHHA agreed. Three days of racing here in the summer months is too many. The horse population cannot support that much racing in the area, especially when Michigan racing is considered.
Windsor, the Administration and OHHA provided the Panel with considerable information respecting horse supply. Most of it was factual in nature, although open to some interpretation as to the reasons why the situation was as it was. We were particularly interested in some information provided by the Administration, which indicated that Windsor made better use of the horses in its entry box than did any other track in Ontario.
OHHA suggested that the most appropriate schedule for Windsor would consist of 152 dates, with 10 or 11 races per day. It was particularly interested in more summer racing, suggesting that Windsor's proposed one day per week schedule in July and early August be expanded to twice weekly. Similarly, in late August and all of September, Windsor proposed to be closed entirely, while OHHA suggested a continuation of the twice weekly schedule which it urged for earlier in the summer. Windsor proposed operating twice weekly in October; OHHA would see that number increased to thrice weekly.
The panel shares OHHA's concerns with respect to the trend line for live racing. There has been a significant reduction in dates over the last few years and the granting of this application, even with the additional dates Windsor has been ordered to apply for, will likely lessen the number of racing opportunities by a significant number.
But, the Panel recognizes the significantly altered state of the Windsor marketplace in recent years. There are now approximately 11,000 slot machines within a short drive from the track (on both sides of the border). There are table games galore. On-line gaming has had an impact. Border crossing procedures, thanks to 9/11, have changed. The marketplace, which Windsor Raceway was built to capitalize upon, has all but dried up.
Unlike horse people, who move their horses around to take advantage of racing opportunities in different places, Windsor Raceway cannot physically move. It is a track that in many ways does not control its own destiny. Major decisions affecting its future are made outside of Ontario.
The trend lines for slot machine revenues and income from wagering are not encouraging. The per-machine performance here ranks among the lowest in Ontario. Wagering on-track on Windsor racing, on a per race basis, is showing a sharp decline from 2004 levels. OHHA would argue that there are controllable reasons for this decline, that it need not be so steep.
Perhaps, but those are matters which OHHA and Windsor should be jointly addressing. It is not for this Panel to consider the condition book, the colour of paint on the walls, the quality of the food, any more than we would consider whether horsemen should be forced to buy better horses, train them better, race them more competitively.
In the end, this Panel was left to decide the appropriate level of race dates for 2006 at Windsor Raceway, taking into account the myriad factors that surround such a decision.
In reaching our decision we are cognizant of Windsor's increase in dates from 103 in its original application to 125 in its "fresh" application. We feel that there is room for some additions; the schedule as presented seems to lend itself to at least six more dates, without disrupting the flow of racing which bettors in particular like to rely upon. It is not for us to delineate those dates. That is a matter for Windsor management.
Finally, we are in full agreement that there is a need for looking at the date framework in Southwestern Ontario, and structuring it so that there will be maximum opportunity to put on a show which will find favour with the betting public, with horse people and with track management. Consideration should also be given to the Michigan and Ohio dates to determine what impact they have on Ontario racing.
We thank all counsel and other participants for their valuable input. The Panel recognizes that the process for issuing race dates where this is a difference of opinion is flawed, and we urge all participants to work towards finding a more agreeable process in time for the 2007 race date hearings. Participants might consider a multi-year process.
The above represents the unanimous view of this Panel.
DATED this 23rd day of December, 2005.
David Gorman
Panel Chair