IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000 c 20;
AND IN THE MATTER IN THE APPEAL OF
STANDARDBRED LICENSEE WILLIAM ELLIOTT
Standardbred Licensee William Elliott appeals to the Commission the decision of Woodbine Entertainment Group to disallow his entries into the Canadian Trotting Classic and Nassagaweya events. WEG refused Mr. Elliott’s entries on the basis that he received a second TC02 positive, and according to its policies and rules for entry, WEG has the discretion to disallow entry of horses from any trainer who has received a second drug positive result.
Further, Mr. Elliott appeals from the judges’ refusal to affect a transfer of his horses to new owners so that they could participate in the events described above.
On September 13th, 2006, Chair LyndaTanaka convened to hearing this matter.
Luisa Ritacca appeared at the hearing for the Administration and Gerald Sternberg appeared on behalf of Mr. Elliott. And David McCutcheon and Colleen Butler appeared for Woodbine Entertainment Group.
Upon hearing the evidence of the parties, reviewing the documentary evidence and upon hearing the submissions from counsel, the Commission determined that Mr. Elliott’s appeal should be dismissed.
The Commission’s reasons are attached to this ruling.
DATED at Toronto this 26th day of September 2006.
BY ORDER OF THE COMMISSION ________________________________
John L. Blakney
Executive Director
ONTARIO RACING COMMISSION
STANDARDBRED HEARING
IN THE MATTER OF STANDARDBRED LICENSEE WILLIAM ELLIOTT
BEFORE: Lynda Tanaka Chair
- REASONS -- - - - - -
Conducted in the Hearing Room of the Ontario Racing Commission, 7th Floor, Suite 400, 10 Carlson Court, Toronto, Ontario, before Toronto Court Reporters on the 13th day of September, 2006.
Appearances:
Luisa J. Ritacca for the Administration,
Gerald Sternberg for Mr. Elliott,
David McCutcheon,
Colleen Butler for Woodbine Entertainment Group.
Upon resuming ---
THE CHAIR: All right, this is going to be pretty rough because I don't have time to really put it together but I am anxious that the process move along, so if you'll just bear with me a moment. At the outset, let me say that I am not a big fan of process or procedural red tape trumping substance and that I prefer the right outcome to the right process in many instances. So I've been troubled by the case and the fact situation that's been presented to me, particularly with respect to the difficulty the judges had of reaching anyone who had the tags to allow proper notification of Mr. Elliott as to the difficulties.
But in the end all that means is that different owners would have been affected, rather than the ones who own these four horses. And so it is in essence not something that I believe should really determine the outcome of the case.
The two issues that were identified in the opening submissions related to whether or not the judges should have allowed the transfer of trainer on Monday this week or Tuesday at the latest, Tuesday night, I guess, and whether or not, as the argument has developed now, I should now order the transfer of the trainers. And I refuse to do that.
I believe that in this case, the proper process of the judges making their investigation and having the ORC investigators attend to ensure that the horses' care, custody and control has truly been transferred to an independent trainer is very important. It is a very costly process for this Commission to unravel relationships that are less clear cut.
In terms of my being able to do it on the evidence I have here, even in the case of Mr. Chiaravalle, I am not comfortable that I do in fact have an owner before me who understands the issues. He has denied knowledge of Woodbine's rules and policies and denied knowledge of the nomination issues under which his horses raced and he's put down, I figure, about $19,000 if he were in the -- or would have put down around $19,000 for two horses to qualify for stakes races if he were in the one that we have the conditions for, the Canadian Trotting Classic. I expect the Nassagaweya has less of a cost, but this owner has not -- can't tell me basic facts and hasn't read basic documents that all have to do with obligations and responsibilities.
So I will not interfere with the judges normal process which is being conducted in the normal time frames for the transfer of the trainer in these circumstances. The second issue that was described for me was whether or not I should in essence order WEG to add these horses to the box, the first for the Canadian Trotting Classic and then three for the Nassagaweya. They are declining to do that exercising their discretion under their normal stakes conditions on being notified of the circumstances which they feel set an undesirable situation for the entry of those horses. I have reviewed the Robinson case, both the February, 2004 decision with respect to the initial jurisdiction to hold a hearing and the merits and I believe that this Commission should not become a trespass court or a forum for the resolution of private contract disputes and that is what I believe is in essence here. I accept the argument and the principle that WEG's actions are consistent with the principle of horseracing being conducted and being seen to be conducted with utmost integrity. I do not believe that this case on the facts that I have satisfies the onus on the applicant for me to review WEG's position and the exercise of its discretion. Indeed its general racing conditions reserve to it the absolute exercise of discretion.
Now I accept that the Court of Appeal has tempered that discretion considerably but I don't see anything here which engages the overriding public interest to force WEG to accept entries which it has determined it does not wish to take.
In my view there is no public interest issue involved here and the normal course of dealing with a situation that arises with the trainer who has a positive test should flow. Now Mr. Sternberg has urged me to circumvent that usual process and he's urged me that since this is the first TCO2 where Mr. Elliott is the trainer then it shouldn't be treated as a second by Woodbine's -- under Woodbine's policy. But leaving aside section 1.2 of Woodbine's policies we still have the general racing conditions of stakes and the principles under section 1.1 of their rules.
Further, Mr. Elliott's 2000 fine related to his involvement with a horse with a positive test as first assistant to Mr. Robinson. That case is an example of the difficulties facing the Commission when the trainer of record attempts to avoid liability by pointing to an assistant trainer and an assistant trainer pointing back to the trainer of record.
Mr. Elliott was fined in those circumstances because of his involvement with the horse as first assistant trainer. He was therefore involved in a positive test, maybe not as trainer of record but he was found by this Commission following the hearing to be involved with respect to the care, custody and control of that animal.
Let me just make sure that I've addressed things and I haven't left out anything I think is really significant.
In terms of the connection between the certificate of positive analysis and the tag, I accept Judge Miller's uncontradicted evidence that that number on the positive test certificate matches the tag that he saw.
Mr. Sternberg argued that I should take into account in exercising my discretion the fact that a TCO2 level that is taken on a race test may reflect the natural level of a horse. And the problem is that Mr. Elliott did not take the standing of any support to this proposition or even give basic information as to whether or not he was going to be seeking independent testing, whether he had authority to put the horse in quarantine for that process, so I give no weight to that argument. That is nothing more than to say that he is -- there are presumptions in his favour pending the case before the judges when it finally achieves resolution. Presumptions in favour of his innocence go so far as to allow him to continue racing, but not on the WEG tracks if they exercise their discretion in the way they have.
So as far as this Commission is concerned, the box is closed and we will not order WEG to accept those four entries on those two races. And it is entirely up to WEG whether they wish to make the draw this afternoon or tomorrow.
So the normal process of dealing with the positive test with respect to Mr. Elliott will flow through the judges and the administration in the normal course. And if Mr. Elliott is unhappy with the process of the judges and the outcome, then he is free to come back, to come to the Commission by way of appeal of that TCO2 test.
And if there are issues between WEG and the owners, it's a private issue, as far as this panel is concerned, which they can work out.
And that is my ruling.
Thank you very much to all the counsel for putting so much effort into being able to have this case on such short notice.
Thank you.
CERTIFIED CORRECT:
Maureen D. Hopkinson, CVR-CM,
Commissioner of Oaths.