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IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF THE APPEAL OF
STANDARDBRED OWNERS VAL D'OR FARMS AND SCHOOR RACING STABLES
Standardbred owners Val D'Or Farms and Schoor Racing Stables requested a hearing to determine the eligibility of their horse, CANYON WIND, to participate in the Open Pace division of the Hambletonian Society's Breeders Crown No. 17, to be run September 3, 2005 at Mohawk Racetrack, with eliminations races to be run August 27, 2005.
The ORC Panel hearing the matter consisted of Chair Tanaka, sitting alone. The Chair convened on an urgent basis on August 25, 2005. Aaron Dantowitz appeared on behalf of the Administration, Susan Rothfels and Paul Rand appeared on behalf of Val D'Or Farms and Schoor Racing Stables, and Ben Wallace appeared on his own behalf.
On hearing the evidence of Tom Charters, Scott McKelvie, Ben Wallace, Steve Elliott, and Bicks Di Meo, on reading the exhibits filed and on hearing the submissions of the parties, the Chair found that the entry of CANYON WIND as a supplement to Breeders Crown No. 17 did not comply in all particulars with the requirements set out by the Hambletonian Society. The Chair declined to order that Val D'Or Farms and Schoor Racing Stables be permitted to supplement CANYON WIND to the Open Pace division of Breeders Crown No. 17.
The Chair therefore directed that the race program for August 27, 2005 be printed reflecting the existing draw for the elimination races.
The Commission's reasons for decision form part of the transcript of the hearing, and are attached to this ruling.
DATED this 1st day of October 2006.
BY ORDER OF THE COMMISSION
John L. Blakney
Executive Director
1
ONTARIO RACING COMMISSION
STANDARDBRED HEARING
IN THE MATTER OF THE Racing Commission Act,
2000, S.O. 2000, c 20
-and-
IN THE MATTER OF: THE HORSE CANYON WIND
BEFORE: Lynda Tanaka Chair
---------------REASONS---------------
Conducted in the Hearing Room of the Ontario
Racing Commission, 7th Floor, 20 Dundas Street
West, Toronto, Ontario, on the 25th day of August
APPEARANCES:
Aaron Dantowitz., Counsel for the
Administration
Susan Rothfels., Counsel for the Appellant
Paul Rand.,
Terry Stone., Director of Racing
Also Present: Michael Granoff
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Reasons - The Chair - 2
-- REASONS --
THE CHAIR: Just give me a minute
because I want to get this -- we need to deal
with this tonight. Let me just check.
Okay, I'm going to deliver some oral
reasons so that you know and so that the Race
Secretary knows what is going to happen and I
reserve the right to edit and add to or delete
portions of those reasons because I do want to
trace through the Rules properly.
I note in the Siegel case, which is
the one case that has been provided to us, that
the Commission at that time spent a considerable
amount of time determining the jurisdiction of
the Commission to deal with the question and
dealt with the issue of the Race Secretary's
decision-making process under Rule --
decision-making power under Rule 16.18 or 29.01
and whether that person deals with those
decisions as a racing official or a delegated
official and the Commission, at that time, ruled
that in exercising power under 29.01, which is
one of the rules referred to, he's acting not on
behalf of the Commission but on behalf of the
Racing Association and not as a delegated
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Reasons - The Chair - 3
official and it's the delegated official that we
review.
But, in any event, I accept at face
value the submissions of counsel that I have
jurisdiction, sitting as a Panel of this
Commission, to resolve this issue of the
eligibility of this horse to participate in the
elimination races and, if it is successful in
that race, to participate in the open pace of
the Breeders Crown number 17 to be run September
3rd, 2005 with the elimination races to be run
August 27.
The evidence before me from Mr.
Charters is that the Hambletonian Society
publishes conditions. He has versions of them
in his computer but the U.S.T.A. 2005 Stakes
Guide contains what he testified were the
conditions under -- that established the
eligibility of the 5-year old horse Canyon Wind
to participate in the open pace race.
There was some confusion created,
really after the fact after the dispute had
arisen, by virtue of Mr. Charters forwarding by
e-mail electronically a version of the
conditions which was not the version published
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Reasons - The Chair - 4
in the U.S.T.A. Stakes Guide.
In the particular facts of this case
the owners and the trainer didn't rely on the
version Mr. Charters sent out by e-mail
originally which did not match in all aspects
the conditions set out in the U.S.T.A. 2005
Stakes Guide and, indeed, it was the evidence of
the trainer of Canyon Wind that if he had been
in his office in New Jersey he would have
referred to the U.S.T.A. Stakes Guide but he
wasn't; he was up in Canada and didn't have a
Stakes Guide with him at the time the decisions
were being made to enter this horse.
So the difference between the two
documents that only arose in the course of this
dispute, I think, is a red herring because it
really doesn't apply to these facts.
On the facts of the case that the
Stakes Guide, which Mr. Ben Wallace; an
experienced trainer who has participated in
Breeders Crown events and gone through the
supplemental payment process both in this
particular sponsored event and others, the
Stakes Guide is the document to which the
trainers refer and under the Rules of Racing the
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Reasons - The Chair - 5
trainer is responsible for the eligibility of
his horse to participate -- his or her horse to
participate in any race.
Under the U.S.T.A. Stakes Guide, it
provides for the supplemental declaration fee
"(due and payable at the time of declaration,
US funds only)". And, going down the list, for
Open Pace in 2005, the figure of $62,500.
The text goes on further to say:
Supplemental entries for the 3-Year Old and Open
Division, which is the division we're involved
with, says that: "Otherwise ineligible 3-Year
old and older horses to the Breeders Crown
Number 17 may be made eligible to the 3-Year Old
races in -- 3-Year Old races in 2004 and/or the
Open races in 2005 with a declaration to start
accompanied by payment of a supplemental
declaration fee no later than the proscribed
time and date scheduled by the Society. The
declaration is due at the track where the race
is being held."
The fact that the declaration is due
at the track where the race is being held is
consistent with the way races are set up; that
you enter them and whether they are overnight or
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Reasons - The Chair - 6
stakes you enter them at the track where the
race is to be held; you make the declaration at
the track where the race is to be held.
That Stakes Guide is published early
in the calendar year. The next information
that is published is published in trade
publications by the Hambletonian Society, which
was provided to me under Exhibit 4, and it
provides the information that supplemental
declarations are due and payable on Monday
August 22nd at 12 noon.
There is a distinction between the
declaration of a horse where they have been --
where sustaining fees have been paid because in
those instances the -- in those instances where
the sustaining fee has been paid, and you only
then have to pay a starting fee, the starting
fee is due at time of declaration and payable
not later than one hour prior to the post time
of the race or the first elimination heat as the
case may be.
So the owners are in the situation
that if they had made the sustaining payments
all along, or the sustaining payments in
accordance with the Hambletonian Society rules,
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Reasons - The Chair - 7
they would have had until one hour before the
post time of the first elimination heat to pay
the starting fee but they didn't; they chose not
to, and we had an explanation from Mr. Di Meo as
to the reasoning behind that and from the
trainer.
The Stakes Guide specifically refers
to the proscribed time and date scheduled by the
Society and the Society has indicated that the
declaration is due in accordance with the track
conditions because these races are held at so
many different tracks.
So the condition sheet from Woodbine,
which is tab 7B of Exhibit 3, says at the top,
under Mohawk Racetrack, Condition Sheet:
"Saturday-03-SEP-2005 declare by MONDAY
22-AUG-2005 12:00 PM." And then it says: 1.
BOTH SUPPLEMENTAL DECLARATIONS ARE DUE FOR ALL
AGED BREEDERS CROWN EVENTS."
Now, on the facts of this case, it was
explained to me that Canyon Wind was an
expensive yearling which did not perform up to
the owners expectations in the 2-year old and
3-year old year and the decision was made at
some point not to pay the sustaining payments to
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Reasons - The Chair - 8
the Breeders Crown Stakes process.
The horse, in the Spring of 2005,
began to race at a -- in a time that more
closely indicated a capability to race with
Breeders Crown calibre horses and that this,
with the exception of one race at Woodbine, it
was in the money in its races that are recorded
on its line which is tab 9 at Exhibit 3.
The evidence before me is that even as
late as August 20th when it participated in an
open class race; the 9th race at Mohawk that
night, the decision had not been made by its two
owners to enter it into the Breeders Crown.
The trainer was here in Canada without his
Stakes book. The owners were apparently not
planning for the eventuality that they would
have to declare this horse into the Breeders
Crown and satisfy whatever conditions the
Hambletonian Society had.
Unlike Mr. Wallace, who a week prior
to the entry date had contacted the Hambletonian
Society to find out what the rules were and how
high he had to, in essence, jump to get into the
race, these owners, with widespread interests in
a large number of horses who were earning and
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Reasons - The Chair - 9
represented the potential for a much larger
earnings than this older horse did, were not
available in the morning of the date of
declaration; August 22nd, until apparently just
before the 12 o'clock noon deadline.
Mr. Elliott testified that he got off
the phone with Mr. Di Meo with the instructions
to enter the horse. Mr. Di Meo testified that,
and I take from his evidence, that until he had
spoken to these owners he did not have authority
to authorise the $62,500 payment.
It was all up in the air until he got
that authority sometime around quarter to 12 or
10 to 12 in the morning with the money and the
entry due at noon. And, on the evidence I have
before me, I find that the decision to make the
entry was done at a very last minute and that
the reason it was done at the last minute was
due entirely to the actions of the owner and the
trainer and not through any action taken or not
taken by the Race Secretary or the Hambletonian
Society.
I'm being asked to exercise my
discretion to allow this horse to win in the
circumstances where other horsemen have followed
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Reasons - The Chair - 10
all the rules, made their sustaining payments
all the way along and protected their
opportunity to race for what is a very sizeable
race.
I have been referred to the Siegel
decision SB 012a/2003 and I use it by analogy.
In that case, there was a cut-off related to a
postmark which was described by the Panel as
objective albeit arbitrary cut-off time for
nominations and sustaining payments to be used
when the mails are used.
Whenever a time is used in a rule or a
condition it is arbitrary. It is also
objective. It is not disputed here that Mr.
Elliott walked into the race office late. The
hour had passed based on the clock in the race
office, based on the watches that were referred
to. It is not substantively disputed that he
didn't get to the race office on time to make
the payment by 12 noon. Then the question is,
should I exercise the discretion to excuse that?
I do not find before me the
extraordinary circumstances where someone has
done all he or she could have done to comply
with the rule or comply with Stakes' conditions
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Reasons - The Chair - 11
that are reasonably available within the trade
press and the Stakes magazines; the Stakes
guides issued, that the industry is well aware
of and which they use to guide their
decisions.
I am asked to exercise my discretion
under Rule 1.09 to waive a breach of the rule.
It's been argued before me that the Race
Secretary, in failing to accept this entry as an
eligible entry breached the rule.
My finding is that the entry did not
comply in all particulars with the requirements
set out by the Hambletonian Society. Those
conditions are set by them to achieve the goals
of their Society. I have evidence that they
are changed from time to time by the Society and
that they use reasonable efforts to publish
them.
The evidence I have before me is that
neither the owners nor the trainer referred to
the Stakes Guide or referred to the publications
made by that Society and, in those
circumstances, I'm not prepared to waive any
breach of the rule involved in this entry.
So, in the words of the submission of
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Reasons - The Chair - 12
counsel for the Administration, the status quo
is maintained and the race program can be
printed with the draw as it has been drawn.
I will do my best to get out proper
reasons that reflect, as I said, what I said
tonight.
I can tell you it is now 12 hours
since I started meetings this morning and so I'm
tempted to apologize for the quality of the
reasons but not really.
MS ROTHFELS: Thank you again, Madam
Chair, for your time this evening and thank you,
Madam Reporter, as well for working so late.
THE CHAIR: I will make a note in the
Reasons that counsel have been very cooperative
and provided much assistance this evening. And
I realise that you had to throw this case
together and represent your clients' interests
as well as you could with very limited notice.
So, thank you very much.
MR. DANTOWITZ: Thank you, Madam Chair.
THE CHAIR: And thank you, Madam
Reporter.
MR. DANTOWITZ: Likewise.
-- Upon concluding at 8:50 p.m.
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Reasons - The Chair - 13
I hereby certify the foregoing to be
a true and accurate transcript as taken
by me to the best of my skill and
ability.
Christine McAlister, B.A.,C.S.R.
Toronto Court Reporters
1410 - 65 Queen Street West, Box 69
Toronto, Ontario M5H 2M5
(416) 364-2065
TORONTO COURT REPORTERS - TORONTO - ONTARIO