IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF
STANDARDBRED TRAINER/OWNER WILLIAM ELLIOTT
William Elliott, by his solicitor Gerald Sternberg, applied for a hearing in relation to an alleged requirement imposed by Woodbine Entertainment Group by letter of April 4, 2005, that horses trained by William Elliott race out of the retention barn facilities during races at Woodbine properties. Following the submission of a Report by the Executive Director dated June 29, 2005, Chair Lynda Tanaka ordered that a Panel be convened to consider the issue of whether or not the Commission had jurisdiction to hold the requested hearing.
On July 18, 2005, a Panel of the Commission consisting of Chair Lynda Tanaka and Commissioners Jane Garthson and George Kelly convened to hear the jurisdictional issue. Gerald Sternberg represented William Elliott as counsel, David McCutcheon and Colleen Butler represented Woodbine Entertainment Group as counsel, and Brendan Van Niejenhuis represented the Administration as counsel.
On hearing the evidence of Jamie Martin, and on reading the exhibits and on hearing the submissions of counsel for all parties, the Commission dismissed the application by William Elliott and declined to convene a hearing of the merits.
The Panel's written reasons for decision are attached to this Ruling.
DATED this 28th day of July, 2005.
BY ORDER OF THE COMMISSION
John L. Blakney
Executive Director
REASONS FOR DECISION
On July 18, the Commission heard evidence and submissions with respect to a request by William Elliott for a hearing as to whether or not William Elliott can be required to put his horses into retention barn prior to racing by the requirements of Woodbine Entertainment Group.
The request for a hearing on this issue was made to the Executive Director of the Commission by letter from Mr. Elliott's solicitor on April 4, 2005 pursuant to Section 11(7) of the Racing Commission Act, 2000. Woodbine Entertainment Group ("WEG") was requested to provide its comments in writing with respect to this request and did so April 23, 2005. Counsel for the Administration sought additional information as to the basis for the request from counsel for Mr. Elliott by letter dated May 27, 2005, specifically with respect to the exercise of the Commission's jurisdiction under Section 7 of the Act. A report to the Chair dated June 29, 2005 was submitted by the Executive Director pursuant to Rule 4.02(ii) of the Rules of Standardbred Racing. Following consideration of that report, the Chair established a panel to consider the issue of the jurisdiction of the Commission to hold the hearing requested and whether a hearing should be held.
FACTUAL BACKGROUND
In the course of the hearing, evidence was led by WEG through James Martin, Vice President of Standardbred Racing. No oral or written evidence was led on behalf of Mr. Elliott. There appear, however, to be certain undisputed facts and facts supported by the documents that were filed as Exhibits.
William Elliott is a licensed Standardbred trainer and owner. He was at one time an assistant trainer to William Robinson who is now suspended following a series of hearings before this Commission on issues related to positive tests in violation of the Rules of Standardbred Racing. Mr. Elliott has, since the fall of 2004, been licensed as a trainer and owner. He was previously fined for a positive test violation with respect to a horse ARTISTIC in 2000, a horse trained by Mr. Robinson. Mr. Martin testified that more recently Mr. Elliott was involved with respect to the horse FLIGHT PLAN in late 2003, which was trained by William Robinson and had a positive test.
Mr. Elliott has re-established his career as a trainer, now apparently independent of Mr. Robinson, and in 2004 his horses earned over $300,000. His horses in 2005 have so far earned in excess of $1,000,000. The owners who have horses with Mr. Elliott are owners who used William Robinson to train their horses prior to his suspension, and Mr. Elliott utilizes stables formerly used by Mr. Robinson.
Mr. Elliott signed the WEG "Application for Access Rights Standardbred" on September 9, 2004. He has entered horses to race at Woodbine and Mohawk under conditions set by WEG.
WEG has, since approximately April 1, 2005, required that all horses trained by Mr. Elliott and racing at their tracks comply with the retention barn policies and their track rules so that the horses are in the retention barn 24 hours prior to post time. Mr. Martin indicated that the performance of Mr. Elliott's horses and Mr. Elliott have been observed over the intervening months and based on his experience, on the input of bettors and others, the decision was made to require Mr. Elliott for a period to put his horses into retention prior to racing. He estimated the duration of this requirement to be 180 days and indicated he had had discussions with Mr. Elliott concerning the requirement.
Mr. Elliott through his counsel objects to this requirement in the letter sent April 4, 2005 on the basis that "no reason was provided to Mr. Elliott why this arbitrary decision has been forced upon him". (Exhibit 2, Tab 3)
In his letter dated June 1, 2005, counsel for Mr. Elliott expanded on the basis for his argument as follows:
"Pursuant to S. 11(3), the Commission may delegate to racing association officials any powers listed therein.
If the Commission has not delegated to Woodbine Entertainment Group any of the powers listed in this subsection, then clearly they had no authority or power to impose the condition on Mr. Elliott, as they have done. If they have the power then S. 11(7) is applicable. Otherwise S. 7(k) and (l) are applicable and a hearing should be convened without any further delay.
No written ruling or order was provided by WEG even though I requested same....
This matter, concerning Bill Elliott involves primarily racing. Mr. Elliott has done nothing wrong, yet he has been told by WEG that all of his horses must race out of the Retention Barn."
Mr. Martin was questioned as to his knowledge of an investigation of Mr. Elliott by Commission investigators but whether or not such an investigation has taken place was not established to our satisfaction and the allegation of such an investigation plays no role in this panel's determination.
WEG provided its rationale for requiring Mr. Elliott to designate Mr. Elliott's horses for retention both in its letter at Tab E of Exhibit 1 and in Mr. Martin's evidence. According to WEG the penalty retention program affecting trainers who had had serious medication violation penalties has impacted many trainers and that on occasion horse owners have attempted to avoid the retention program by giving their horses to former assistant trainers of the offending trainer and that Woodbine would generally designate horses entered by former assistant trainers to retention for a period of time. Mr. Elliott was employed by William Robinson for many years including late in 2003 when Mr. Robinson had a TCO2 violation at Mohawk Racetrack.
This letter was quoted in the report of the Executive Director which was provided to Mr. Elliott's counsel. No evidence was filed on behalf of Mr. Elliott to rebut the factual basis set out in the letter.
Exhibit 2 contains the June 1, 2004 WEG track rules for standardbred racing which are approved by the Director of Racing of the Commission. Mr. Martin testified that these are the current version of the track rules and that all tracks have such rules approved by the Commission. Also included in the bound copy are policies of WEG, which are not approved by the Commission. The policies include the retention barn procedures. In addition, WEG forms that are required to be filled out are included in the bound copy and referred to in the track rules.
Exhibit 3 is a memorandum dated September 27, 2001 from the Director of Racing to all Standardbred judges informing them of approval of Rule 7.13 of the Woodbine track rules, known as the Retention Rule, and instructing the judges to post it at all tracks. The Rule reads as follows:
"The Woodbine Entertainment Group, in its sole discretion, may require horses to be placed in a retention area for a disclosed period of time prior to racing in any added money and/or overnight races(s). The period of time the horse is detained in retention area is at the sole and absolute discretion of Woodbine Entertainment and may vary from time to time."
In the track rules effective June 1, 2004 marked as Exhibit 2, tab 1, in Part VI entitled "Conditions of Racing", Section 6.9 entitled Pre-Race Requirements provides in paragraph (e) as follows:
"WEG, in its sole and absolute discretion, may require horses, or any one or more of them, entered in a Race to be on the Premises of the relevant racetrack for a period of up to 24 hours prior to the Race in which such horses are to start."
We note that this requirement does not specify whether the horse is to be in the retention barn or retention area or elsewhere on the "Premises".
Mr. Martin testified that these rules had been approved by the Commission. While it is not entirely clear why, Rule 7.13, according to Mr. Martin, has never appeared in the printed booklet track rules while Rule 6.9(e) has been in place in the track rules since the late 1990's. It is not clear as to whether Rule 7.13 has been replaced by the current version of Rule 6.9(e). Both the track rules, including Rule 6.9(e), and Rule 7.13 have, according to Mr. Martin, been approved by the Commission. Mr. Martin confirmed that the rules had been renumbered since Director Stone's approval of 7.13. He was not clear why the wording had reverted to an earlier one during that restructuring. It is the track rules that are enforced by the Standardbred judges.
The policies of WEG included in the booklet that is Tab 1 of Exhibit 2 have not been approved by the Commission, as no approval is required. Under the policy section Part III – Retention Program, the policies on Retention provide as follows:
"3.1 (a) WEG, in its sole discretion, may require any horse or horses to be in a detained retention area for a specified period of time prior to racing in any Race.
(b) The period of time any such horse is detained in retention area is at the sole and absolute discretion of WEG and may vary from time to time. "
It is in these policies in the published booklet rather than in the track rules in the published booklet that we find the clear specific reference to the detained retention area, as opposed to the "Premises" generally.
Exhibit 2, Tab c was the form of the "Application for Access Rights Standardbred", which was signed by Mr. Elliott and which contains the following phrase:
"I acknowledge having been provided with a copy of the Rules and Regulations of WEG and acknowledge that compliance with those Rules and Regulations, as amended from time to time, is a condition of my continued access to WEG premises."
The form in blank is included in the bound volume at Tab 1 of Exhibit 2 and is referred to in the track rules.
Under Part 7 of the track rules in Exhibit 2 Tab 1 at page 21, "Rules and Regulations" are defined to mean "the Standardbred Rules and Regulations and Policies of WEG herein prescribed and any amendments made thereto at any time from time to time." The definitions differentiate between those Standardbred Rules and the "Rules of Racing" which are defined to mean "the Rules of Standardbred Racing established from time to time by the Commission."
Also in Exhibit 2 at Tab D the Commission was provided with a copy of a condition sheet, which Mr. Martin testified had the usual conditions of the races published widely to inform trainers and owners of the races scheduled for the coming week so that they can find a race in which to enter their horses. These conditions include the following
"The Race Office may designate any Race and/or horses for retention.
Horses must report for retention by 11:00 p.m. the night before."
SUBMISSIONS
Counsel for Mr. Elliott submitted that WEG does not have the power to force Mr. Elliott into retention. He says that under Section 11 the Commission must hold a hearing on the issue. He submitted that if he is correct as to WEG's powers, then the Commission must hold a hearing for an order that prevents WEG from imposing this requirement. If he is wrong and WEG has the power, the Commission should still hold a hearing as to whether the discretion has been properly applied in this instance to require Mr. Elliott specifically to put his horses into retention prior to racing.
WEG submits that it has the power to require that the horses go into retention pursuant to the agreement in the application for access (a private contract), through the race conditions, which also constitute a contract between the track and the horsemen, through the track rules approved by the Director of Racing and under the track policies.
Further WEG submits that the Commission has no jurisdiction to hold a hearing on this issue under Section 11(7) of the Act. If it has any jurisdiction, it is under Section 7(k) of the Act and in that case the Commission must determine whether or not it is in the public interest to hold a hearing. Under the line of cases starting with the Court of Appeal decision in Ontario Harness Horse Association v. Ontario Racing Commission (2002), 2002 CanLII 41981 (ON CA), 62 O.R. (3d) 44, ("the Sudbury Downs decision") the Commission needs to find a public interest in holding a hearing on the issue raised by Mr. Elliott and there is no such public interest here. We were also referred to cases following on that Court of Appeal decision including Gerald Lamoureux, et al., Ruling COM SB 22/2002 dated November 8, 2002, Clifford Siegel, Ruling COM SB 012a/2003 dated June 5, 2003 and Re William Robinson and Woodbine Entertainment Group, Ruling COM S 007/2004 dated February 24, 2004 in which the Commission has dealt with issues that arose in argument here.
The counsel for the Administration agreed with WEG's submission that there was no jurisdiction under Section 11 of the Act if we found that the requirement on Mr. Elliott arose from a source other than the delegated authority, but also submitted that the Commission had jurisdiction under Section 7(k) and that the panel should consider the contract rights described by WEG in exercising our discretion.
Counsel for WEG and for the Administration also agreed that in the event that we found we had jurisdiction to hold a hearing we had a discretion to refuse to hold a hearing under Section 7 which provides that:
"The Commission has the power,...
(k) to hold hearings relating to the carrying out of its objects or powers..."
This provision is in contrast to Section 11 where a person who considers oneself aggrieved by a decision of a person to whom the Commission has delegated a power under subsection 3 of Section 11 or by a decision resulting from a hearing held pursuant to a delegation under Subsection (4) is entitled to a hearing. (emphasis added). It also differs from Section 22, entitlement to a hearing, which is available to a person who receives notice of proposed order issued by the Director under the Act.
FINDINGS
The basis for the submission of WEG that Section 11(7) does not apply is that the decision to require Mr. Elliott to go into retention does not flow from a delegation to a racing association official under Section 11(3) or to a racing association under Section 11(4). The issue of retention does not arise from a decision of a racing association official to whom the Commission has delegated the power under Subsection 11(3) to enforce the requirements of the Act, the regulations, the rules and all requirements of the Commission.
With respect to Section 11(4) again the decision does not arise from a delegation by the Commission to the association WEG of the Commission's power to enforce the carrying out of the regulations and the rules and procedures that the Commission has adopted under subsection (2).
The track rules are defined under the Rules of Standardbred Racing Rule 2.59 as "rules posted by associations to govern conduct of racing and participants at the association's raceway. Track rules may be adopted in whole or in part by the Commission."
"Rules" are defined under the Rules of Standardbred Racing Rule 2.50 as the Commission Rules of Standardbred Racing and any track rules adopted by the Commission.
Delegation means that the decision maker is standing in the stead of the Commission. (See Clifford Siegel cited above at pages 3-4.) That is not the situation here. WEG is enforcing its own policies, not enforcing the Commission rules and in the stead of the Commission.
The "retention area" is referred to in the Rules of Standardbred Racing, which are the Rules of the Commission. The retention area is defined in Rule 2.49 as an area within the grounds of a raceway designated for the purpose of obtaining and securing official samples.
The retention area or retention barn as defined in the Woodbine track rules is an area where a horse is stabled for a period of 24 hours prior to racing. It may also be the area designated for the official samples being taken pre or post race, but not necessarily.
Under Rule 9.03 of the Rules of Standardbred Racing of the Commission, the judges may order that a horse be ordered to the retention area. The Rule goes on to deal with the official sample of blood or urine taken in the retention area or for the purpose of determining the presence of prohibited medications in any horse in a qualifying race. Rules 9.11 and 9.12 provide the judges with enforcement powers. Under the Rules pertaining to the EIPH program a retention facility is also referred to, with the judges having the appropriate powers of enforcement.
Counsel for Mr. Elliott relies on the use of the phrase "retention area" within Rule 9.03 and does not differentiate between delegated power and the track rules or policies. His submissions at the outset were that WEG should not treat Mr. Elliott differently from other trainers and that WEG was arbitrary. He then submitted that WEG had no right to impose the retention policy. His submission was that once the Commission set out in its rules specifically for a retention area, then there was no room for the track to put in place rules of its own for a retention area or retention barn.
We do not accept that interpretation of the relationship of the track rules or policies and the Commission Rules of Racing. To find in favour of that submission would mean that the Commission would have to micromanage the procedures involving the backstretch. So long as the track rules are consistent with the Commission's mandate to govern, regulate and direct associations in the public interest and in accordance with the principles of honesty, integrity and social responsibility, there is room for the tracks to exercise their individual private property controls and impose their own policies. The process of the approval of the track rules allows for protection of the horsemen from inappropriate rules while balancing the track's individual circumstances and resources, as well as its business goals.
We have compared the wording of the Rules of Racing of the Commission and the track rules and policies of Woodbine. Given the specific wording differences, we find that the specific requirements on Mr. Elliott come from the policies of Woodbine and its contract with Mr. Elliott through the application and the conditions of racing, and not from any delegated power. We therefore accept the submissions of counsel for the Administration and for WEG that Section 11(7) does not provide this Commission with jurisdiction to deal with the complaint made on behalf of Mr. Elliott.
We also accept the submissions of counsel for the Administration that the Commission does have jurisdiction under Section 7(k), which provides the power to hold a hearing but does not specify an entitlement to a hearing. We find that we have discretion within that jurisdiction to determine whether or not a hearing should be ordered in these circumstances.
In determining whether to exercise our discretion to order a hearing, we have taken into account the provisions of Section 6 of the Act.
Further we have taken into account specific facts in this case:
a) The requirement on Mr. Elliott may involve additional expense and a differentiation between horses trained by him and those trained by others in some circumstances, including additional expense for his owners and inconvenience in requiring him to ship in his horses the day before racing rather than the day of.
b) here are significant controls on access to the horses which other trainers do not have to abide by, except as set out below, all to the purpose of ensuring that the horses do not race with any prohibited substance in their systems. Mr. Martin testified that WEG saw this as potentially an advantage for a trainer in that it provided support to the trainer as to his skill in readying a horse for racing by training rather than by medication delivered on the day of racing.
c) Mr. Martin testified that for over 15 years, WEG has required all horses entered into a stakes race to be in retention. Therefore any horses entered by Mr. Elliott for a stakes race would fall within that category.
d) Further Mr. Martin testified that since 2001 WEG has, under Rule 7.13 and under Rule 6.09, required that all horses in a race chosen at random from the race card also be in retention. Therefore, if Mr. Elliott entered a horse in such a race, it would be in retention along with other horses in the same race.
e) Mr. Martin testified that where trainers have been found in violation of the prohibited medications rules involving a significant positive test such as a Class 1 or 2 drugs or TCO2 test, the trainer will be required when he or she comes off their suspension to have their horses in retention for a period of time.
f) Mr. Martin acknowledged that Mr. Elliott has only a 2000 positive test penalty for the horse ARTISTIC and involvement which did not result in a penalty being imposed with respect to the horse FLIGHT PLAN. He has no other rule violations, which would in the normal course result in his being in the retention barn.
g) Mr. Martin indicated that WEG requires trainers from time to time, based on their observation of the trainer's horses' performance or based on information they receive, to comply with the retention requirements. He likened the 180 day requirement on Mr. Elliott to a similar program at the Meadowlands.
h) He acknowledged that WEG had to be fair and consistent in its application of the requirement for retention and, in essence, that it had to be reasonable in dealing with the trainers.
i) here are other standardbred race tracks in southern Ontario where Mr. Elliott could race his horses if he wishes to avoid the WEG restrictions.
Counsel focussed many of their submissions on the issue of the public interest, referring to the Sudbury Downs case. In that case the Commission regarded itself as prohibited from holding a hearing in a dispute between OHHA and Sudbury Downs because of private property rights that allow the track to refuse admission to its grounds of any person. The Court of Appeal ruling provided guidance to the Commission in determining those circumstances when those private property rights could not be used as a bar to the Commission assuming jurisdiction. In the specific case before it, the Court of Appeal found that absent those private property rights constraints the Commission itself regarded the issues before it as such that they would have otherwise held the hearing. Therefore in the specific case before it, the Court ordered the Commission to hold the hearing.
In addressing Section 6 of the Act, the Court of Appeal said at paragraph 48:
"It is not necessary to expound at length on the meaning of 'the public interest', a term which finds itself in many statutes. It is sufficient to say that in the present context it must mean that not only the interest of Sudbury Downs be taken into account but also the interests of other participants in the industry – horse owners, drivers, etc. and race track patrons – in short, the good of horse racing generally."
Mr. Elliott's counsel submits that because WEG says that its retention policy is important to the maintenance of the integrity of the sport and because of the public interest in the integrity of the sport, the Commission has to hold a hearing because the public interest requirement under the Sudbury Downs case has been satisfied.
Counsel for the Administration pointed out that there are distinct issues related to the public interest to be addressed: first is the issue of whether or not the retention barn policy of WEG is in the public interest. Second is the issue of whether or not having a hearing on the issues raised would be in the public interest. Third is the issue of whether or not there is a specific public interest on the facts of the dispute here.
We take into account that the goal of the retention barn system is to discourage the administration of drugs on race day both for the sake of the health of the horse and also for the sake of eliminating the use of prohibited substances. The Commission has been and remains supportive of retention barn procedures, as consistent with the principles of honesty and integrity and social responsibility.
We also take into account WEG's reliance on the private contract between Mr. Elliott and WEG. Trainers are given clear notice of the retention barn procedure in the race conditions, in the access application signed, and in the track rules and policies which each trainer acknowledges receiving.
We also note that, unlike the Robinson case, WEG's position is not based on its private property rights as enforced by a Trespass to Property notice but rather on a signed application, its race conditions and policies to which the trainer has agreed to be bound.
We note that Mr. Elliott is not barred from WEG's premises under the retention policy and its application to him. Unlike Mr. Robinson, Mr. Elliott continues to participate in races at WEG properties and to therefore have the opportunity to race for the purses against the calibre of horse attracted to WEG.
We agree that often the public interest is served by a hearing which provides an open forum for the canvassing of issues of significance to the industry at large. The circumstances of this case are not those, and we are not satisfied that the public interest requires or would be served by a hearing into this dispute. While we agree that the retention barn policy of WEG is important to the integrity of the sport and therefore that there is a public interest in the retention barn process, we do not agree that there is a public interest in whether or not Mr. Elliott has to have his horses in retention.
We note that under the track rules approved by the Director of Racing of the Commission, WEG is given a very broad discretion as to retention. We are not to be taken as holding that this Commission will never review the exercise of that discretion by WEG. In the circumstances of this case, however, we are not satisfied that the public interest is engaged by this complaint by Mr. Elliott.
The Sudbury Downs case also requires that we consider whether the dispute involves racing. In the Robinson case, the panel determined that it had jurisdiction based on an assessment of whether the matter involved "the good of horse racing generally" and involves "primarily racing". The panel found that the dispute primarily involved racing because WEG's notice under the Trespass to Property rights was triggered by its concern for fairness and integrity of racing and the optics and appearance of same; the fact that the trespass notice removed a large stable of quality horses from racing at Canada's premiere two venues for harness racing, that Mr. Robinson was among the leading trainers and conditioners of standardbred race horses; and that 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.
We agree that the retention barn process, broadly speaking, involves "racing" in that it is a pre-race process that horses that race must comply with in certain circumstances. We do not agree, however, that the specific application of this process to Mr. Elliott in this case involves issues affecting "racing" in the broad context of the regulated sport, as in "the good of horse racing generally".
Both the panel in the Lamoureux case and the panel in the Robinson case were careful to note that many disputes involving the trespass remedy between the licensed race tracks and other licensees of the Commission would be beyond the review of the Commission. Similarly there will be cases such as this one where a dispute as to WEG's application of its discretion under its track rules or its policies is not one that involves the good of racing generally.
For these reasons, we dismiss the application for a hearing by Mr. Elliott.
DATED this 28th day of July, 2005.
____________________________
Lynda Tanaka
Chair