IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000 C. 20;
AND IN THE MATTER IN THE APPEAL OF
STANDARDBRED LICENSEE ADAM KAMINSKI
Standardbred licensee Adam Kaminski appealed from a decision of the Hanover Raceway that found his horse “Adam Five” to be ineligible to race in the upcoming Balanced Image Race because the horse was not “OSS eligible”, meaning it had not paid its Ontario Sires Stakes fees.
On July 25, 2006, a panel of the Ontario Racing Commission consisting of Chair Lynda Tanaka and Commissioners George Kelly and Bernard Brennan, DVM, convened to hear the appeal.
Patricia Latimer appeared at the hearing for the Administration and Mr. Kaminski appeared on his own behalf.
On hearing the evidence of Gord Dougan and Mr. Kaminski, and on reading and reviewing the exhibits filed, and on hearing the submissions of counsel and Mr. Kaminski, the Commission was split in its decision. Chair Tanaka and Commissioner Brennan DISMISSED the appeal, and upheld Hanover Raceway’s interpretation of “OSS eligible.” In dissent, Commissioner Kelly found that Adam Five was OSS eligible.
The Commission gave oral reasons for the decision, the transcript of which is attached to this ruling.
DATED at Toronto this 14^th^ of August
BY ORDER OF THE COMMISSION
Terry Stone
Acting Executive Director
Reasons - Kaminski
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2 ONTARIO RACING COMMISSION
STANDARDBRED HEARING
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IN THE MATTER OF THE Racing Commission Act,
4 2000, S.O. 2000, c 20
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-and-
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7 IN THE MATTER OF: ADAM KAMINSKI
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BEFORE: Lynda Tanaka Chair
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George Kelly Member
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Bernard Brennan Member
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---------------REASONS---------------
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16 Conducted in the Hearing
Room of the Ontario Racing Commission, 7th
17 Floor, Suite 400, 10 Carlson Court Toronto,
Ontario, on the 25th day of July
18 2006.
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21 APPEARANCES:
22 Patricia Latimer Counsel for the
Administration
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24 Adam Kaminski Unrepresented
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Reasons - Kaminski
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2 ----- Upon resuming
3 THE CHAIR: Please be seated. I would
4 like to thank Counsel and Mr. Kaminski for their
5 able argument in dealing with this.
6 The Commission is split on the
7 decision. So I will deliver the reasons of Dr.
8 Brennan and I and Mr. Kelly will give his
9 reasons for his decision.
10 Dr. Brennan and I have resolved the
11 matter in this way: This is a dispute with
12 respect to the conditions for racing for the
13 Balanced Image two-year old trot race which is
14 an added money event run by Hanover Raceway.
15 The term that is in dispute is stated
16 this way: quote: "For foals of 2004. To be
17 raced as two-year old trotting colts and/or
18 fillies in 2006, who are OSS eligible.
19 The advertisement then provides for
20 conditions and the schedule of payments as well
21 as the date of the elimination race and the
22 final races.
23 We have evidence before us with
24 respect to the background on the establishment
25 of the Balanced Image two-year old trot race
Reasons - Kaminski
1 from Mr. Dougan who is the manager of Hanover
2 Raceway.
3 We have an argument from Mr. Kaminski
4 that OSS eligible means that the horse is
5 eligible for the OSS program whether or not the
6 nomination and sustaining payments have been
7 made.
8 He has told us that the horse cannot
9 race in OSS races because the nomination payment
10 was not made and since then the payments which
11 are provided under the program, which could be
12 made to make it possible for the horse to race,
13 have not been made by him. So the horse cannot
14 race in OSS races but he says that the horse is
15 OSS eligible because it was sired by a stallion
16 that was an Ontario stallion properly qualified
17 in meeting the conditions.
18 The interpretation at Hanover is that
19 the word OSS eligible means that the nomination
20 and sustaining payments have paid and the horse
21 is eligible to race in OSS races.
22 The phrase OSS eligible, to our minds,
23 is ambiguous. We have referred to WEG's
24 statement of eligible -- make sure I get this
25 right -- eligible to Ontario Sires Stakes
Reasons - Kaminski
1 program at page 72 of the Standardbred Canada
2 publication Exhibit 5.
3 We agree with Mr. Kaminski that the
4 difference is the wording is not a distinction
5 which matters in this debate.
6 In the face of the ambiguity of the
7 words OSS eligible, as interpreted by the race
8 track and as interpreted by Mr. Kaminski, we go
9 to the rest of the advertisement and we see no
10 language there which assists us in resolving the
11 ambiguity.
12 We then go to industry practice and
13 the evidence before us was that the Balanced
14 Image two-year old trot was created by the race
15 track as a result of the success it had with a
16 race called the Dream of Glory which was for
17 three-year old trotters. This race has been
18 run for five years with the same description of
19 eligibility; that is, OSS eligible, and the race
20 track has enforced the interpretation that this
21 phrase means eligible to race with all
22 appropriate OSS payments having been made and
23 some horses have not been able to compete in the
24 Dream of Glory race because they were not fully
25 paid up and eligible to race in OSS races.
Reasons - Kaminski
1The evidence we have before us is that
2Hanover's intention was to build on the success
3 of the Dream of Glory which provided
4 opportunities for the local trotting industry to
5 compete at the three-year old level by providing
6 a similar opportunity for two-year olds and they
7 used the same wording.
8 The testimony we have is that the race
9 track tried to resolve the ambiguity by giving
10 instructions to the media as to the form of the
11 ad to add the clarification that the payments
12 for the OSS had been made and the media's
13 response was that they did not understand why it
14 was necessary to add those words to clarify.
15 We then have Exhibit 6, which is the
16 letter of Scott McKelvie of WEG, in which he
17 provides their interpretation of the words that
18 they do not require that horses eligible for the
19 OSS program means including all nominating and
20 sustaining payment. So we have a difference of
21 interpretation at WEG from the interpretation of
22 slightly different wording at Hanover.
23 The intention of Hanover was to give
24 horsemen who had according to what Hanover --
25 the Hanover's manager testimony to us is, was to
Reasons - Kaminski
1 give their horsemen another opportunity to race
2 and, in racing, to recover the costs by earning
3 purses but not in an OSS race and the allocation
4 of OSS races is determined by the HIP program
5 not by Hanover.
6 So the opportunity was given for those
7 who have paid their OSS costs. And, in creating
8 this race, the race track has recognized that
9 those horsemen who have made those payments have
10 in fact incurred greater costs than those who
11 have not made the payments.
12 In all the circumstances, the Panel
13 -- Dr. Brennan and I have resolved that the
14 correct interpretation for Hanover's the
15 Balanced Image two-year old trot race is that
16 OSS eligible means OSS eligible with payments
17 made in order to -- so it's OSS eligible to
18 race.
19 We urge Hanover to continue its
20 efforts to try and clarify these conditions so
21 that we don't have any more people who are
22 misled but, on balance, given the number of
23 people who put their horses forward and
24 interpreted the wording as eligible to race, we
25 believe that fairness requires that we do
Reasons - Kaminski
1 support that interpretation. Mr. Kelly?
2 MEMBER KELLY: It's obvious that I
3 disagree. The OSS eligible to me means that
4 the horse has been sired by an OSS registered --
5 duly registered stallion. That makes a horse
6 OSS eligible. It has nothing to do with
7 nomination and sustaining payments.
8 Nomination and sustaining payments has
9 a lot to do with whether the horse -- the foal
10 -- could race in an OSS event. This at
11 Hanover is not an OSS event and therefore the
12 rules are not the same. The conditions that I
13 read here in exhibit -- can't remember the
14 exhibit number. Says that --
15 THE CHAIR: 3.
16 MEMBER KELLY: 3: To be raced as a
17 two-year old trotting colt and or filly in 2006
18 who are OSS eligible. To me, any horse who was
19 sired by an Ontario sire; registered sire is to
20 me is eligible.
21 Now, if Hanover wishes to interpret
22 this differently, you know, I can't argue with
23 them that the intent was probably as they stated
24 in this Hearing. But to me the condition to
25 this race is written in this flyer which
Reasons - Kaminski
1 basically says OSS eligible and to me this horse
2 is OSS eligible and I encourage Hanover, for
3 future, to say who are OSS eligible duly
4 sustained as a two-year old or three-year old.
5 The conditions didn't say that.
6 I agree with Woodbine when they say
7 that you don't have to be paid. If you're OSS
8 eligible, then you are OSS eligible which
9 basically is going back to the sire; an OSS
10 sire. So, with that, I disagree with my
11 colleagues here and that is all I have to say.
12 THE CHAIR: Thank you. Thank you for
13 bringing the appeal forward.
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Reasons - Kaminski
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5 I hereby certify the foregoing to be
6 a true and accurate transcript as taken
7 by me to the best of my skill and
8 ability.
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11 _____________________________
12 Christine McAlister, B.A.,C.S.R.
13 Toronto Court Reporters
14 1410 - 65 Queen Street West, Box 69
15 Toronto, Ontario M5H 2M5
16 (416) 364-2065
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25 TORONTO COURT REPORTERS - TORONTO - ONTARIO