IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c. 20;
AND IN THE MATTER OF 2007 LIVE AND INTERTRACK RACE DATES
On October 26, 2006, Chair Lynda Tanaka and Commissioners Bernard Brennan and Jane Garthson convened to hear the race date applications from 405730 Ontario Ltd. for the New Hiawatha Horse Park, from Great Canadian Gaming Corporation for Flamboro Downs and from Windsor Raceway Inc. for Windsor Raceway.
The Administration of the Ontario Racing Commission was represented by Brendan Van Niejenhuis, Legal Counsel and Wendy Hoogeveen, Director of Industry Development and Support. Arlen Sternberg appeared for the Ontario Harness Horse Association, Chris Roberts appeared for Flamboro Downs, Chris Kruba appeared for Windsor Raceway and James Henderson appeared for New Hiawatha Horse Park.
The Ontario Racing Commission, after reviewing the written submissions and hearing oral representations from the applicants and the Ontario Harness Horse Association, approved the following:
Live Standardbred Race Dates
New Hiawatha Horse Park 52
Simulcast Race Dates
New Hiawatha Horse Park 364
All post times were approved as applied for.
The Ontario Racing Commission, after reviewing the written submissions and hearing oral representations from the applicants, the Ontario Harness Horse Association and the Administration, declined to approve the applications for Windsor Raceway and Flamboro Downs.
Reasons for Decision form part of this Ruling.
Calendars of the approved Live Dates form an attachment to the ruling.
Dated at Toronto this 28th day of November 2006.
BY ORDER OF THE COMMISSION
John L. Blakney
Executive Director
REASONS FOR DECISION
On October 26, 2006, the Commission commenced the hearing with respect to applications by various tracks for race dates for 2007, specifically New Hiawatha Horse Park, Windsor Raceway and Flamboro Downs Racetrack. Counsel for OHHA indicated that OHHA wished to apply for party status in all three applications. Counsel for the Administration indicated that he was content with the process, which involved the panel hearing the evidence, and at the end receiving submissions and the detailed briefs on the application for party status.
Also OHHA proposed to make submissions and call evidence concerning the applications of Flamboro Raceway and Windsor Raceway. Counsel for OHHA further requested that in order to avoid duplication of evidence that the evidence OHHA gave with respect to the overall issue of race dates in the Windsor matter should be considered as part of the OHHA presentation for the Flamboro matter as well.
The Commission agreed to OHHA’s counsel making submissions and calling evidence on the merits of the Flamboro Downs and Windsor applications and further that the evidence called in the Windsor matter on the general issue of race dates would be treated as being called again in the Flamboro matter as well. The Commission also agreed to the process of the application for standing as a party being dealt with in argument at the conclusion of the evidence as requested by counsel for OHHA.
Ruling on OHHA application for party status
OHHA has applied to be recognized as a party in the proceedings before this Commission. Rule 1.11 of the Rules of Procedure provides as follows:
(1) The following persons are parties for the purpose of these Rules:
a) Persons specified as parties by statute under which the proceeding arises;
b) persons otherwise entitled by law to be parties to the proceeding; and
c) persons who in the opinion of the Commission should be added as parties.
Under the Rules, the Commission may add a party for all or part of a proceeding and may make any other order as seems just to minimize prejudice or delay to other parties. It is not argued that OHHA qualifies under item 1.11(1) (a). Rather OHHA says its situation is governed by subsection (b), that it is entitled under by law to be a party, and if not, then the Commission should exercise its discretion to add OHHA as a party under subsection (c).
The conferring of party status is an important issue for the organization or individual who is not otherwise entitled to the status. The Statutory Powers Procedures Act R.S.O. 1990 c S.22 as amended, the rules of natural justice and procedural fairness, as well as the Rules of Procedure of this Commission, provide for specific protections for parties. For instance, a party can prevent consolidation of matters that otherwise should be consolidated by withholding its consent for whatever reason it sees fit. A party has rights to disclosure of documents and information from other parties. Failure to provide disclosure to a party may result in delay of a hearing.
The Commission is master of its own process. This Commission, like other tribunals, has in practice permitted participation of individuals and organizations in hearings such as this one without recognizing the organization or individual as a party. That participation has included the right to call witnesses and to cross-examine other parties and their witnesses. That participation however has not extended to include full party rights.
The hearings follow the filing of applications by the racetracks for approval of dates on which they may be permitted to offer live racing to the public. The range of persons and organizations and businesses that are affected by the decision on race dates includes the federal government which is responsible under the CPMA regulations, the employees of the racetrack, suppliers to the racetrack and to the horsemen, local businesses in the vicinity of the track, the wagering public, the local municipality, and other racetracks. As a matter of public policy to ensure its decisions are made on the best information, the Commission provides for a consultation process, in writing initially, and depending on the Commission’s view of the application and the written submissions, through evidence at a hearing.
The Administration’s position is that OHHA is not a party to a race date application. Rather it is an association with a strong interest in horse racing, which sometimes appears on invitation or otherwise to make submissions. It was invited this year to make submissions on the Windsor and Flamboro Downs applications, not the New Hiawatha Horse Park submissions. The Administration further submits that the only two parties on the race date application are the applicant racetrack and the Administration as the responding party. OHHA is not directly affected by the racing schedule and there are other members of the public or interested associations who might also be given status on the basis of an economic interest in the outcome, direct or indirect.
The purpose of the race dates hearing is to allow a public interest assessment of a racetrack’s proposal where individuals, businesses and organizations such as OHHA can give input to the Commission in a public hearing format. The Administration takes the position that the issue before the Commission is whether or not the Association’s proposed schedule is within the public interest in light of the whole of the circumstances of that Association, the wagering public, the public at large, the horse people, other Associations and any other relevant factors. This case is not an adversarial legal battle of prosecution and defence.
While there is much in the process of the race date hearing that looks like an adversarial hearing to determine, for instance, an appeal concerning a race interference ruling by the judges or stewards, the hearing is in fact a public consultation process. Hearing-style discipline is imposed to provide order and fairness, to avoid incomplete information and response, and to give those who wish to speak and to ask questions of those who do speak the opportunity to be heard and to get the information they think the Commission needs to make a proper decision. Sometimes witnesses are sworn or affirmed, but they need not be. Each witness is, however, aware that their credibility is important both with their regulator and with their industry “partners”. The fact that the individuals and organizations that appear before the Commission do business together and with the Commission on an ongoing basis is an important factor.
OHHA will not be required to do anything or to refrain from doing an act and will not lose any privilege no matter the outcome of the hearing. Even OHHA’s members will not be directly affected in that the ruling of the Commission will not order them to enter their horses or refrain from doing something.
The Divisional Court has recognized that party status is not a fixed or inflexible concept. It recognized the concept of “limited parties” (Temple v. Liquor Licensing Board (Ontario) (1982) 1982 CanLII 2111 (ON HCJ), 41 O.R. (2d) 214 at paras 8 - 10). The Divisional Court has also recently recognized the significant role in representing the public interest that is carried out by the Administration, by analogy to the staff of the Alcohol and Gaming Commission of Ontario, in refusing to grant party status to the City of Toronto. (Toronto (City) v. Ontario (Alcohol and Gaming Commission), 2005 CarswellOnt 5079 at paras 30 - 43). In those two cases the legislation specifically referenced the involvement of a member of the public or the City, but in the legislation here there is no such right recognized.
On review of the submissions of OHHA and the Administration, we are of the view that the decision of the panel last year on December 13, 2005 on a similar application was a correct determination and there is no reason not to follow that decision this year. We would discourage this type of motion being brought where no true distinction between the fact situations in the present case and a previous case can be made out. We deny the application for party status.
New Hiawatha Horse Park
404730 Ontario Limited has applied for approval of 52 race dates for 2007, for 364 intertrack dates and for approval of the backstretch improvement plan for the track. The Governing Board of the Commission required a hearing be held on the application because of the number of race dates applied for on the following basis:
“The race date application for this track for the 2006 season was the subject of a hearing at which the track justified the reduced race dates on the basis of increases in costs, specifically municipal taxes. In its decision granting the race dates, the Commission noted:
“Management has indicated that it would offer more racing if it is economically viable to do so. The results of its property tax appeal could help here.”
No further information has been received with respect to the tax appeal and the issue of the costs as argued in the hearing for the 2006 season. The race dates requested for 2007 reflect a level consistent with what was approved on the basis of the tax appeal remaining outstanding. The track should bring updated information on the outcome of the tax appeal for consideration of the Commission panel.”
On October 26, Mr. James Henderson appeared on behalf of the track at the hearing concerning race date applications. He explained that the appeal of the taxes for 2005 had not yet been processed and the appeal for the following year’s taxes has also been filed and not yet dealt with. He indicated that his appeal is being dealt with at the same time as Woodbine’s appeal of taxes. The number of race dates for 2006 was lower than historically had been the case for this track, and the Commission was and remains concerned as to racing opportunities being lost for this part of southwestern Ontario.
Mr. Henderson confirmed his intentions to provide additional race dates in appropriate financial circumstances, but there appears to be a never-ending list of costs that justify, in his perspective, a reduced number of dates.
OHHA’s submission was that there needs to be a certain level of racing in southwestern Ontario. If Windsor Raceway is successful in its application to reduce the number of days of live racing, as requested, then there may be a need to provide additional racing at New Hiawatha in Sarnia. There is no definitive answer as to the “certain level of racing” and it is clear in this case, as in the others, that what is needed from the track’s perspective and what is needed from the horsemen’s perspective may be two different numbers.
The two tracks are 100 miles apart without a 400 series highway linkage. Mr. Henderson indicated that customers do not drive from Windsor to Sarnia, though horses and drivers may make the trip. The difficulties in the border crossing have significantly lengthened the trip between the two tracks since the route through the US that previously was used was shorter in terms of travelling time, so long as the border was open. The issue then is that the wagering at New Hiawatha is not supported by customers from Windsor, though horsemen will make the trip. Mr. Henderson indicated he could accommodate more racing on his facility but the wagering levels and the slot revenue do not support it.
With respect to the slot revenue at the track, Mr. Henderson indicated that OLG is not supporting the operation by marketing this site through media, concerts, etc. in his area. He said that OLG’s efforts are directed to marketing in the US. He faces significant competition from the nearby casino.
The Commission does not wish to “institutionalize” the race date number of 52 at this track and is reluctant to approve this number again this year. The Commission regards the reduced race dates as an interim solution with respect to specific expenses. We recognize, however, that the reason the reduction was accepted last year remains outstanding. Therefore we are prepared for one more year to approve this level of racing at this track, subject to the condition that the track provide to the Executive Director no later than August 15, 2007 an update on the status of the appeals of the taxes as of July 31st, 2007.
The track should anticipate that it will have to provide in 2007 for its 2008 application full disclosure as to its expenses and revenue if it wishes to continue at the same level of racing in the coming year. We also expect the track to participate fully in discussions facilitated by the Executive Director or his designate with a view to addressing the overall southwestern Ontario racing industry issues.
Therefore the application for 52 race days, 364 days of intertrack and the Backstretch Improvement Plan are approved.
Windsor Raceway
The evidence in this matter was heard on October 26th, 2006. The matter before us was the application by Windsor Raceway for 101 days of live racing as well as the intertrack dates and the backstretch improvement plan. In 2006 the Commission approved 138 days of racing though it is anticipated that around 10 days will be cancelled in total by the track because of low levels of entries by horsemen.
In the Notice to the Industry issued October 20, 2006, the Commission directed a hearing on the application as follows:
“Windsor Raceway Windsor Raceway Inc.
Windsor Raceway Inc. has applied for approval of a reduced number of race dates. The Commission requires a hearing with respect to the justification of the number of race dates and the backstretch improvement plan. The matters considered will include the issues identified by OHHA on pages 6 and 7 of its October 13, 2006 letter to the Commission with respect to Windsor Raceway specifically and OHHA is invited to otherwise participate (not as a party) in this portion of the hearing. The track should be prepared to address questions on other aspects of its application.”
OHHA provided its own view at pages 6 and 7 of its submission of October 13, 2006, for the decline in wagering and slot revenue at this track, including the lack of future planning. OHHA’s estimate was that the race date reduction, under the formulae from the economic impact identified in the submission, would result in a diminishing of harness horse racing’s impact in the area of about $15 million, together with impact on the breeding side of the business estimated at around $4.6 million. OHHA expects further reductions in slot and pari-mutuel revenue. OHHA requested that the Commission approve the same number of races for 2007 as were approved in 2006, and indicated it would accept the same racing schedule as in 2006. OHHA’s position is that this level of live racing will help ensure that the industry can at least maintain the infrastructure required to produce and race horses until the new facility, which it also supports, is operating.
The Administration took no position on the dispute between OHHA and the track.
The presentation on behalf of the track was given by Mr. Chris Kruba, with Mr. Pat Soulliere who is Vice President of the track giving evidence. OHHA’s submissions were given by Mr. Arlen Sternberg, who called Brian Tropea, a director of OHHA, Mr. John Walzak, COO of OHHA, Mark Williams who is a catch driver/trainer at Windsor, and Randy Fulmer who is a trainer at Windsor, to make presentations.
The exhibits that were entered included a bound brief of documents prepared by the track outlining the statistical basis on which it justified the reduction in race dates and several charts concerning horse supply, purses and wagering levels. Mr. Soulliere presented a purse pool projection for the period October 1, 2006 to December 31, 2007 based on 101 race dates and on certain assumptions as to the average purse per race (dash) with an assumption as to the net win per machine at the slot parlour.
In OHHA’s presentation, the exhibits included the OHHA October 13, 2006 submission referred to above, excerpts from a study authored by a consultant who was not called to testify, 70 letters from affected horse people, charts prepared by Mr. Walzak on the issues of horse supply and purses, and a written version of Mr. Tropea’s evidence.
Windsor Racetrack was for many years a first class operation. It has suffered in the past period from a variety of factors which the management says includes the issues of delays for fans and horsemen at the border crossings, competition for wagering dollars, the non-smoking laws, casino competition and similar issues that face all the border tracks. The track says its position is more extreme in that OLG has opened sportsbook betting at Casino Windsor and is investing considerable sums in marketing that facility which competes with the slots at the track and the racing for gambling dollars. Also, OLG has stopped the food and beverage service at the slots. The track acknowledges that this is not a location which is truly competitive as an entertainment alternative and it has advertised very little. The track has therefore presented little evidence that it has attempted to protect its market share in the entertainment market, either by the improvement of the facility or in marketing.
In southwestern Ontario there are significantly more racing opportunities for horsemen in the summer months than in the winter months and therefore filling the cards in the summer months of May to September at Windsor has always been a challenge. The track says that the application is a harmonization with Western Fair and Woodstock racing schedules. Woodstock races only in the summer season. Western Fair ends its race program in June and does not resume until October. Therefore Windsor is proposing to race more when Western Fair is racing than when Woodstock is racing.
The race date proposed reductions affect the whole of the year, including the periods when the seasonal tracks are not racing. For instance, it is proposing to reduce the dates in January, March and December from four days per week to three days per week and it is proposing to reduce racing in April from three days to two days per week and ultimately to one day per week.
Windsor’s justification for reduced race dates is founded on the competition for horses from the summer tracks such as Dresden and Woodstock that have higher purses. Windsor’s position is that it must increase the purses by reducing the number of race dates and that by increasing the purses it will attract more and better quality horses to fill its fields. The wagering levels are not sufficient to support the purses in any event and the slot revenue is also reducing. The track says it must either increase wagering and slot revenue or reduce the number of days of racing, in order to push up the purses.
There was considerable evidence on horse supply for the track. American horsemen race at Windsor, especially when the Michigan tracks are not operating. This year some US horsemen came to the track to race when their home tracks were quarantined because of a disease outbreak, thereby providing supply that might otherwise not have been available. The statistics indicate however that there are more horses than post positions available and that while Windsor utilizes the entries better than other tracks, it is not in a negative position. We were not provided with evidence as to what conditions in different races were not attracting enough horses or were attracting too many horses so that some were not able to race.
OHHA’s position is that:
a) the horse people’s interest requires at least 131 days, and preferably 139 days of racing;
b) the Commission must take into account the negative impact on those businesses that provide service to the track and the horse people due to the reduced live racing opportunities if the race dates are reduced to 101 days;
c) the application does not include any Saturday racing, a traditional day of leisure when people look for entertainment options that should include horse racing;
d) to reduce the race days would be inconsistent with the slot program which was intended to enhance live racing; and
e) to support such a substantial drop in live racing at this venue the track would have to show substantial financial hardship and that is not argued by the track in this case.
The evidence of Mr. Tropea, Mr. Williams and Mr. Fulmer underscored the interest of the local horsemen in the continued operation of the track at a level sufficient for them to earn a living. All three have earned their living at Windsor racetrack for decades and Mr. Williams in particular spoke of a multi-generational investment by his family in racing at this track. The uncertainty around the future of racing in this part of the province was clear in their evidence. They are, however, free to race at other southwestern Ontario locations and there is no guarantee or requirement that can be imposed by this Commission that they or any other horse people race a specified number of times at the Windsor track in preference to any other track.
We do agree with OHHA’s position that the lack of summer racing, except in direct competition to Dresden is odd, given the complaint that the reason for the low horse population at Windsor is the purses at Dresden. Dresden is the closest of all the Ontario tracks to Windsor and is owned by related companies. Windsor is not proposing racing on Fridays or Saturdays as alternative days when the public traditionally looks for entertainment opportunities. If the competition for horses is with Dresden because of the higher purses, then one alternative would be to race on another day of the week.
The track has announced that it will move to a new location in Tecumseh with a development known as “Project Ice Track” which will include a hockey pad, restaurant and racetrack facility. The local municipality is supportive and will be participating with funds for the construction. The owners of Windsor Raceway have entered into a partnership with another family to bring forward the project.
The Commission notes that the submissions of the track did not focus with any particularity on the new facility; indeed there was almost no discussion about the transition from the old track to the new one. We were assured that racing would continue while the new facility was built and the target date for the hockey rink is 2008-09. The development is dependent on the Town of Tecumseh bringing in services to the site. When asked, the track confirmed that it would continue racing for the two years until the 2008-2009 hockey season when it hoped to have the rink facility open. The Town apparently wants the racetrack facility open first. The lack of emphasis in the presentation on the new track facility is troubling and we agree with OHHA that there are valid concerns that there will not be sufficient effort put into maintaining the track and the racing product to protect the market share over the next two years.
It was not part of the track’s presentation that the reduced racing days were required because of an issue of financial viability. It is apparent that the reduced race days will reduce costs for the track but nothing in the presentation persuaded us that that was somehow something to be achieved to benefit the horsemen or that needed to be achieved by the track in order to survive. There is no suggestion that the reduced costs would somehow allow more revenue to be put into the purses by the track to supplement the purse account. Rather the presentation simply was that the local horsemen had not produced sufficient entries to fill the race cards, despite the position of OHHA last year that there would be enough horses to fill the cards. The reason, according to the track, for the lack of entries is the purse level, and by increasing the purse level the track will have enough horses to fill the cards. The track also indicated it had made efforts to fill the race cards, but the horsemen who testified indicated that the race secretary had not called around looking for entries, as is the usual case when the box is not filled. While there is no obligation on the race secretary to call individual horsemen, the lack of that usual level of effort is telling.
This is the third year that Windsor has applied for race dates in the same range. In each of those years the application was rejected. In previous years, the option of fewer race dates but more races on each card was used to see if that would provide the revitalization and racing opportunities needed. The option was not successful. OHHA is correct that the current application represents an ongoing reduction from 1999 in the live racing program at this track, the very opposite of what was supposed to happen when slots were introduced by the province. The apparently relentless slide in live racing at Windsor, despite the significant investment through the slots program, calls out for a new approach on the part of both the track and the horsemen.
OHHA produced a study that dealt with a track in the US by a consultant concerning the interrelationship of slots and live racing. It chose not to call the consultant to testify as to the applicability of his study to the Windsor situation. The study would seem to suggest that the reduction in live racing will affect adversely the success of the slots. We are not convinced that the study goes as far as OHHA says it does or even that it applies to the Windsor situation.
In our view the track has not made a case that operating at the same level as last year is not economically viable and it specifically stated its position is not one of financial need. It has left too many questions unanswered. It has not focused on any benefits to the industry or the public that the horsemen or this Commission can discern in this application. It has not addressed how this application addresses and implements the goals of the slots program. It has not shown any positive elements that might be balanced against the clear loss that the horsemen, and supporting businesses and infrastructure, face with such a substantial reduction in live racing dates. When it says that it will maintain racing at this location for the next two years, given the closure of amenities such as snack bars and food and beverage service, we are left without a clear vision that the facility will support a safe and sustainable industry in the area, until the new track is open. There has been no evidence of a strong marketing plan and there remains uncertainty about the type and quality of the facilities available over the next two years.
The Commission, in considering these applications, recognizes the different economic interests at play. The Commission must however be satisfied that the application is in the public interest and in the best interests of racing. That threshold has not been met by this application.
We were invited by the track to deal with the issue of purse pooling. The track led evidence from Mr. Pat Soulliere as to the status of the purse pool and indicated on the assumptions in his chart that if the track were to race four days per week, then the purse pool would be exhausted. We are not to be taken as criticizing Mr. Soulliere’s prudent approach to preserving a significant reserve in the purse pool. The horsemen must accept that the purse pool reserve must be protected. His evidence was that for every additional $84,000 in the purse account, you could race an additional day.
The track is owned by a company whose principals also operate Dresden and Woodstock racetracks. The track has participated in discussions at an industry level to address the issue of the purses and racing opportunities in southwestern Ontario. While those issues are beyond the purview of this panel on this application, it is open to the track owner whose related company operates Dresden and Woodstock to deal with the issue. We note that the Windsor Raceway application included combined submissions on the backstretch and other issues for the three tracks but not on the issue of the purse pool or the race dates. It is open to the track and the horsemen together to deal with that issue.
The Commission therefore rejects the application for 103 race dates and directs that the track file a fresh application for more race dates. We are not convinced that the track has sufficient reasons not to race for the same number of dates as last year with the horse supply in the area. We note that it is incumbent on the local horsemen and the horsemen in southwestern Ontario to work with the track to address the issues of the purse, increasing the wagering handle and improving the attractiveness of the racing product for the fan.
The reality is that this location needs to be sustained with sufficient investment to support the market in this area for horse racing, to ensure a smooth and successful transition to the new location.
Flamboro Downs Great Canadian Gaming Corporation
The application for approval of race dates and intertrack dates was heard by the Commission on October 26 and November 13. The application for approval of the backstretch improvement plan was not before this panel on agreement of the Administration and the track.
On October 20, the Commission gave notice to the industry that a hearing would be held on this application in the following terms:
The Board has determined that two issues should be addressed at the hearing into approval of the race date application, as follows:
a) whether or not the reduction in race dates from 258 to 208 for 2007 should be approved, and
b) whether or not the backstretch improvement plan should be approved.
OHHA is invited to present the submissions made with respect to Flamboro Downs at page 9 of its letter of October 12, 2006 and to otherwise participate (not as a party) in this portion of the hearing.
With respect to item b) the Administration and the track agreed that this matter was not to be dealt with in these proceedings.
The Commission granted leave for the Mayor of Hamilton who had been waiting to give his testimony to speak out of order on October 26th. His concerns with the reduced race dates in the application were based on the economic impact on the rural community, which is dependent on the economic spinoffs from the racetrack. He is concerned about any suggestion of job losses in the rural sector as his community is facing job losses in other industry sectors. Further the municipality has an interest in the success of the slots program in that it receives a percentage of the net win.
Mr. Ted McMeekin, a former mayor of the Town of Flamboro (later amalgamated with the City of Hamilton) provided a letter setting out his recollection of the history of approval of the slots at this racetrack. He is clear that the municipal approval was predicated on the sustaining of the local racing community through live racing and he regards the present application as a reneging on the commitments made by the track ownership of the day to the local municipality that led to the approval.
Flamboro’s presentation was made by Chris Roberts and Bruce Barbour, both of whom showed a significant understanding of the issues. Mr. Barbour’s presentation was based on his considerable knowledge of horse racing and of marketing products to customers. The track’s position is that cutting the number of race dates will not reverse the trend, which it characterizes as a rejection of the Flamboro product. It presented a two-year plan including even more reductions in race dates next year as it attempts to reposition the track in the market place.
OHHA was represented by Mr. Arlen Sternberg who called to testify the then Mayor as noted above, Jody Jameson a catch driver, James A. Whalen the president of OHHA and a horseman whose family races at this track, and John Walzak, COO of OHHA. OHHA’s position is that the track needs to show significant financial viability issues to justify such a dramatic change in race dates. It relies on public statements by the track operator, which indicate success in the past year, rather than failure, in its assessment of the situation at the track. OHHA provided 451 standard form letters signed by horse people who urge the rejection of the application and the continuation of the same racing program as in previous years.
Flamboro’s presentation, in contrast to Windsor Raceway’s, showed a clear and resolute understanding of where it wanted to go and how it proposed to do it. It is facing dramatic reductions in wagering and believes that the reduction in race dates will allow it to slow the slide, but not reverse the trend. It is not presenting the reduction in race dates as the sole response to the drop in wagering. It is proposing to move to a circuit style of racing with its other property, Georgian Downs. Flamboro has more live racing than any other track in Ontario and the evidence is that a third of the standardbred racing horses in Ontario race at one time or another at Flamboro. The track provides more days of racing than Mohawk or Woodbine but not substantially more than the combination of the two.
The track’s position in essence is that, as the prudent business manager, it prefers to act now with some tough medicine to avoid the issues awaiting those who might ignore the signs of trouble. The wagering has dropped this year on the Flamboro product significantly. It has trouble filling the race cards. It has undertaken a marketing survey of the customers and has concluded that the product offered before the end of the workday with the mid-afternoon post time is being rejected by wagerers and the general public. Therefore the track proposes to race fewer days this year (by 50 days) and to change the post time. It is proposing in the summer months when the number of race dates is most impacted, that the racing days should be “event” days that will attract a large crowd.
The Commission agrees that the track should be able to change the post time, as the rationale for the “bridge product” no longer exists. While catch driver Jodie Jameson who testified in this case may no longer be able to drive at two tracks on the same day because of the change in post time, it is not this Commission’s job to protect that work day for a small group of drivers. There is an advantage to other drivers being able to secure drives, when Mr. Jameson and the other better known drivers have to choose which track to attend. The economics dictates that the track with the highest purses will be the one he wants to drive at.
The Commission does not, however, agree that the calendar of live racing proposed is in the public interest or in the best interests of horse racing. The proposed reduction is over 20% of the racing schedule and therefore constitutes too significant an economic impact to be absorbed in one year. In reducing the racing from five days a week, the track has eliminated the holiday Mondays, both at the major community festival weekends such as Easter and Thanksgiving and in the summer holiday periods when leisure time is at its height. Further it has avoided running races at the same time as Woodbine/Mohawk on some dates, but not others. If the track wishes to avoid racing in competition when WEG is racing at Mohawk, then there are dates when that is not an issue that Flamboro has not included in its calendar of racing. On review of the calendar, there appear to be days when there is very little in the way of racing offered in Southern Ontario. We believe there are opportunities there for Flamboro to continue to play a significant role with more race dates.
This case also clearly underscores the different economic models of the track and the horsemen. For the horsemen, it is not the size of purse that matters as much as the number of opportunities to win a purse of some size. For the tracks, trying to attract wagerers and secure simulcast opportunities, the size of the purse, the time of day, the size of the fields and the number of races on the card all play into how attractive a product they produce to the wagerers. The larger the pool, the more attractive the track’s product for the wagering public.
We urge the management to apply its considerable skills to developing a strategy and approach that will minimize the conflict with the horsemen and provide a good basis for a relationship with the horsemen. For the horsemen, we say, it is simply not acceptable to paint the track operators as uninterested in horse racing or setting out to destroy the track, given the level of analysis that has been provided to us. If horsemen do not enter their horses, whether or not they get a call from the race secretary, the track cannot offer the product. A lack of entries cannot be excused on the basis that the race secretary did not call with a specific invitation. If the horsemen expect the track to survive, they must support it with their entries and provide a racing product that will attract the fans back to Flamboro. We expect a significant level of sophistication, beyond positional bargaining, on the part of the horsemen to work with the track to go forward. Both parties must address the issue of the drop in wagering in a responsible and responsive way.
We therefore approve a change in the post time as proposed, but we do not approve the substantial reduction in race dates proposed. We direct that the track provide a new application with additional race days over and above the 208 applied for.
DATED this 28th day of November 2006.
Lynda Tanaka
Chair