IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF
THE RUNNING OF THE MAPLE LEAF TROT (“THE RACE”)
AT MOHAWK RACEWAY ON SEPTEMBER 17, 2005
A preliminary hearing on the Commission's jurisdiction was held before a panel of the Commission consisting of the Chair Lynda Tanaka with respect to the running of the Maple Leaf Trot ("the Race") at Mohawk Raceway on September 17, 2005, on the motion of Joseph Chnapko.
Brendan Van Niejenhuis appeared as Counsel for the Administration, David McCutcheon and Colleen Butler appeared as Counsel for Woodbine Entertainment, Arlen K. Sternberg appeared as counsel for Joseph Chnapko, ("Mr. Chnapko") the owner of the horse Hellava Hush, and John MacDonald appeared as counsel for the owner of the winner of the race Mr. Muscleman.
On reading the Agreed Statement of Facts among Woodbine Entertainment, Joseph Chnapko and the Administration, and on hearing the submissions of counsel, the Commission made the following determinations on the questions placed before it:
- a) Does the Commission have the jurisdiction to order that WEG re-run the final of the Race or that it run another similar race with the same conditions and purse?
Yes.
b) If so, will the Commission exercise that jurisdiction and hold a hearing to entertain this request for relief in the circumstances of this case?
No.
- a) Does the Commission have the jurisdiction to order that WEG, or any other party hat may be responsible, reimburse and compensate Mr. Chnapko for his lost entry fees and other expenses, and a share of the purse (or for loss of opportunity to share in the purse) as a result of the starter error at the start of the race? Or rather, is this purely a matter of dispute for the courts?
The Commission has jurisdiction, in appropriate circumstances, to order the refunding of entry fees, but not to determine damages which are normally assessed by the courts.
b) If the Commission does have such jurisdiction, will the Commission exercise it and hold a hearing to entertain this request for relief in the circumstances of this case?
No.
- To the extent it is necessary or appropriate to determine: was the starter acting in the capacity of an employee, Association official and agent of WEG only, or was he also acting as a delegated official and agent of the Commission?
It is unnecessary to answer this question.
The Commission prepared written reasons for decision, which are attached to this Ruling.
DATED this 28th day of December, 2005
BY ORDER OF THE COMMISSION
John L. Blakney
Executive Director
REASONS FOR DECISION
A preliminary hearing on the Commission’s jurisdiction was held before a panel of the Commission consisting of the Chair Lynda Tanaka with respect to the running of the Maple Leaf Trot (“the Race”) at Mohawk Raceway on September 17, 2005.
Counsel for the Administration, for Woodbine Entertainment, for Joseph Chnapko, (“Mr. Chnapko”) the owner of the horse Hellava Hush, and for the owner of the winner of the race Mr. Muscleman all appeared. Mr. Chnapko’s horse Hellava Hush was in the Number 5 post position in the Race.
An agreed statement of facts among three of the four participants in the hearing was filed as Exhibit 3 and sets out the background as to what gives rise to the hearing. Exhibit 3 included the following:
“At the start of the Race, the starter turned on the recall lights on the starting gate to signal a recall. The lights flashed 5 times and were on for approximately two seconds. The track announcer announced a recall. However, the starter then turned the recall lights off and let the Race proceed. The starter made an error in doing so – once the recall signal had been turned on, the race should have been recalled. The starter indicated to the judges after the Race that he had made a mistake. The judges posted the inquiry sign during the Race due to this incident at the start.”
Exhibit 3 is Appendix A to these reasons.
The counsel referred to Sections 6, 7, and 11 of the Racing Commission Act, 2000. Counsel also referred to Rules 5.03, 13, 22.03, 22.32, 24, 30 and 33 of the Rules of Standardbred Racing. Counsel referred to the following cases in the course of argument: Ontario Harness Horse Association v. The Ontario Racing Commission (2002), 2002 CanLII 41981 (ON CA), 62 O. R. (3d) 44 (CA). Re Siegel, [2003] O.R.C.D. No. 11, and Re William Elliott, Ruling COM SB 021/2005, a decision of the Commission issued July 28, 2005.
It is clear from the facts that when the lights flashed the starter was in the process of ensuring that the horses were all on gait and in position behind the starter’s car, and that the race had not in fact started. It is also clear that the indications that the race would be recalled included the flashing of the lights and the announcer calling that there would be a recall but no sound from the starter’s car, as required by the Rules (See Rule 22.03 (g) “In the case of a recall, a light visible to the drivers shall be flashed and a recall sounded.”).
The driver of Hellava Hush, along with two other drivers took hold at the sight of the lights. A fourth driver was recorded by the judges as saying that he was affected by the sight of the lights. Hellava Hush did not come in at the finish well enough to share in the purse. One of the drivers, who did not take hold and said he was not affected by the lights flashing, finished after Hellava Hush, and two drivers who did take hold also finished after Hellava Hush. One of the horses (the number 7 horse) whose driver took hold at the flashing lights in fact finished with a share of the purse money.
The relief being requested by Mr. Chnapko is that the Commission should order that a hearing be held as to whether or not another similar race with the same conditions and purse should be run or that Mr. Chnapko be compensated for his out of pocket expenses and loss of opportunity to win purse money. The purse has been withheld pending the outcome of this motion and, if a hearing is to be held, the outcome of that hearing. As stated by his counsel, Mr. Chnapko feels that what happened was wrong and that amends should be made.
The parties are agreed that there are three issues for the Commission to determine:
- a) Does the Commission have the jurisdiction to order that WEG re-run the final of the Race or that it run another similar race with the same conditions and purse?
b) If so, will the Commission exercise that jurisdiction and hold a hearing to entertain this request for relief in the circumstances of this case?
- a) Does the Commission have the jurisdiction to order that WEG, or any other party that may be responsible, reimburse and compensate Mr. Chnapko for his lost entry fees and other expenses, and a share of the purse (or for loss of opportunity to share in the purse) as a result of the starter error at the start of the race? Or rather, is this purely a matter of dispute for the courts?
b) If the Commission does have such jurisdiction, will the Commission exercise it and hold a hearing to entertain this request for relief in the circumstances of this case?
- To the extent it is necessary or appropriate to determine: was the starter acting in the capacity of an employee, Association official and agent of WEG only, or was he also acting as a delegated official and agent of the Commission?
The options sought by Mr.Chnapko contemplate the same horses being available or being offered the opportunity to race in a second “Maple Leaf Trot” and the prospect of Mr. Chnapko being compensated, as indicated above. Presumably since other horses were affected by the starter’s error, those owners similarly might have sought such relief but none has joined in these proceedings, even though they were given notice. Indeed the only owner who appeared opposed the position put forward by Mr. Chnapko.
Counsel for Mr. Chnapko was frank that he was unaware of a similar case before the Commission and that part of his thinking in bringing this motion was to be able to indicate to a court in future proceedings that all remedies related to the regulatory tribunal with jurisdiction over horse racing had been exhausted. He has not clearly arrived at the conclusion that the Commission has jurisdiction to grant his client the relief he wants. He was also clear that it was not his intention that the Commission should hold a hearing into what had been the decision of the judges following the inquiry at the time of the race.
Mr. Chnapko is apparently not interested in the Commission panel exercising its usual jurisdiction reviewing what the judges did or what the starter did. Rather Mr. Chnapko in essence wants his “damages” paid by WEG for his loss of opportunity to win this prestigious race and his costs of being eligible and able to participate.
From Mr. Chnapko’s perspective he is willing to run the risks of starting the horse in another running of the Race. He had a horse that he thought could win or at least could share in the purse; he paid the entry fees; and as a result of the starter’s error he says he was deprived of that potential recovery and it cost him the entry fees and other costs to get this horse to the point of competition.
- a) Does the Commission have the jurisdiction to order that WEG re-runs the final of the Race or that it runs another similar race with the same conditions and purse?
Yes. In my view the issues of whether or not there was a fair start in a race and the impact of the start on an actual race is within the Commission’s jurisdiction. It is also my view that the Commission does have jurisdiction in the proper circumstances to order an association such as WEG to re-run a race or to run a similar race with the same conditions and purse.
b) If so, will the Commission exercise that jurisdiction and hold a hearing to entertain this request for relief in the circumstances of this case?
No. In my view it is inappropriate to hold a hearing in the circumstances of this case to entertain such a request for relief. The purse money on the race that was run has been held and the proposition being put to me is that owners whose horses had previously earned the purses would not receive them; rather they would have to compete twice. The Maple Leaf Trot is run for 3 year olds or older and this race had 11 horses, all of which were 4 years to 6 years old. The race was run in September and all the horses had run at least six times in the previous two months. Given the size of the purse, at least some of those horses would have been carefully managed in terms of their training and racing schedule to be at a peak of performance for the year, if not their racing lifetimes, in the early fall of 2005 so as to take advantage of the large purses available in that time frame. Racing takes its toll on horses and there is no indication on the record that any of the owners would put their horses into a similar race. If even a small number of the other owners refused to enter the new race, then the dynamics of that race would change from what was in play on September 17, 2005 and what factors were in play at whatever date would be set. There would be no “similar” race where the owners who had taken the risk on September 17 would be taking the same risk in the new race. There is also no fairness in opening the field to other horses which did not make it into the final of the second running of the Maple Leaf Trot when they did not make it into the first running. There is no rationale for exposing a horse whose driver took hold because of the starter’s error, but which nonetheless won at least a share of the purse, to the risk again, as would be the case of Hez Striking, the 7position horse. Indeed the fact that only some of the drivers took hold is significant. The lights are clearly visible to all the drivers but taking hold of the horse was a driver decision taken by four of the eleven drivers and not by the other seven.
- a) Does the Commission have the jurisdiction to order that WEG, or any other party that may be responsible, reimburse and compensate Mr. Chnapko for his lost entry fees and other expenses, and a share of the purse (or for loss of opportunity to share in the purse) as a result of the starter error at the start of the race? Or rather, is this purely a matter of dispute for the courts?
In my view the Commission has jurisdiction in appropriate circumstances to order the refunding of entry fees, such as in the case of an ineligible horse being entered with the fees paid but not permitted to race (See Re Siegel, [2003] O.R.C.D. No. 11. This is not the situation here, where the horse was eligible to race, was healthy enough to race, and in fact raced, but did not win a share of the purse.
I do not see within the wording of Section 7(l) of the Racing Commission Act, 2000 the power to determine damages which are normally assessed by the courts.
In the OHHA case referred to above (Ontario Harness Horse Association v. The Ontario Racing Commission), the Court dealt with the meaning of the words “govern” and “regulate” in Section 7 of the Racing Commission Act, 2000 and indicated that in that case the words included the ability to “alter the existing legal landscape - providing for some modification of legal rights, including property rights”. (p. 57). The alteration of legal rights was to be considered within the area of expertise of the Commission and in the context of horse racing and the public interest engaged on the facts of the case. In this case we are not being asked to alter legal rights but rather to determine the nature of the relationships arising from a horse participating in a race, to determine if a wrong has been done within the context of those relationships, and to determine whether or not (and to what extent) a civil remedy is appropriate and financial compensation is to be provided if someone has been wronged. This is the area for the courts.
Further, the relief requested is not an incidental effect arising from the Commission exercising its regulatory powers over horse racing (see Ontario Harness Horse Association v. The Ontario Racing Commission at p. 60).
If, however, I am wrong, and the Commission does have jurisdiction to award the remedy sought, I would not order the holding of a hearing before a full panel of the Commission for the relief requested. The Commission is required by its statute to exercise its powers in the public interest. I accept the definition of the public interest in the OHHA case referred to above (Ontario Harness Horse Association v. The Ontario Racing Commission, at p. 59). The wagering public has been protected in the view of the presiding panel of judges and that decision dealing with the disposition of the wagering pools is not before the Commission. I am mindful that the phrase “the public interest” does not exclude the participants in the race in question itself, but none of the other horsemen who did not earn purse money came to the Commission to support Mr. Chnapko. The racing association objects to the relief sought, as does the one other participant who chose to appear.
This case is about horse racing, an endeavour in which a number of participants, both human and equine, try their hardest to out-manoeuvre and out-run the other participants. Whatever plans the driver may have of winning the race, there are other drivers determined to defeat those plans. All, of course, is dependent on whether or not the horse has what it takes that day to win against those particular competitors. As in any athletic endeavour, anything can happen, including errors by humans, and it is, at least to some extent, this uncertainty and potential that makes racing exciting.
There is no guarantee that the running of a horse race, from any participant’s or the officials’ perspective, will be free of or unaffected by human error. Even highly trained human athletes have been known to stumble. The adjudication of sport events requires decision making in fractions of seconds and the likelihood of error increases in that context. Even with appeals and replays, human error on the part of officials cannot be eradicated as a factor sometimes affecting the outcome of such contests.
- To the extent it is necessary or appropriate to determine: was the starter acting in the capacity of an employee, Association official and agent of WEG only, or was he also acting as a delegated official and agent of the Commission?
In view of the findings above it is neither necessary nor appropriate to answer this question.
In summary, the Commission rejects the application to have a panel of the Commission hold a hearing to consider the relief requested by Mr. Chnapko.
DATED this 23rd day of December 2005.
Lynda Tanaka
Chair