IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF THE APPEAL OF
STANDARDBRED OWNER AUBREY FRIEDMAN
SUPPLEMENTARY REASONS FOR DECISION
Supplementing the oral reasons of May 9, 2007 may assist the parties in relation to the applicant’s (Friedman) request for an interim stay of Woodbine Entertainment Group’s (WEG) suspension of racing privileges such as to enable nomination of Friedman’s horses for WEG Stakes Races.
Turning to the first issue in the quest for interim relief, that being a serious triable issue.
There is a serious public interest in preservation of the integrity of horse racing. That interest is advanced by deterring violation of racing rules particularly as they relate to drugs. The most pernicious being non-therapeutic performance enhancers. That form of cheating bears on competitors, the wagering public and the racetrack.
The stakes at issue are high. On the one hand the right of Friedman to race at WEG tracks (Woodbine and Mohawk) having done so on a significant scale with significant success for about ten years.
On the other hand the right of WEG to make and enforce rules designed to prevent drug violation cheaters from racing at tracks owned by WEG. In brief, the right to protect the purity of its turf.
That there is a serious issue to be tried was not seriously challenged in evidence or argument. The Panel found that Friedman had successfully negotiated the first hurdle en route to interim relief by establishing that there is a serious triable issue.
As a result of the suspension, stakes nominations by Friedman have been refused by WEG specifically:
“Yorky’s Girl” – a three-year-old trotting filly for the Celia’s Counsel Trotting Series scheduled to commence back on April 9, 2007.
“Blue Bloodedwoman” – for the Standardbred Breeders of Ontario Stakes and the Simcoe Filly Stakes to be raced in 2008.
“Who’s That” – for the 2008 Simcoe Stakes.
The interim relief related to those nominations. The proposed order would require WEG to accept Friedman’s nominations which apart from Friedman’s ownership, met qualification standards.
The application for interim relief failed on the second and third factors for consideration being irreparable harm and the balance of convenience. The claimed irreparable harm was nomination deadlines would be missed and thereby Friedman lost the opportunity to compete for substantial stakes purses.
The affidavit by Jamie Martin, WEG’s Senior Vice President, Racing dated April 26, 2007 states in paragraph 31 -
“As of July 2006, Mr. Gray (Friedman’s principal trainer at the time) trained twenty-three horses at his stable, nineteen of which were owned either in whole or in part by Friedman.”
- Friedman deposes in paragraph 16 of his affidavit of April 14, 2007 –
“Over the course of the fall of 2006 the majority of my standardbred racing stock was sold and I am now left with ownership of four standardbred horses, two 3-year-olds and two 2-year-old home breds.”
Accordingly, since the July suspension, Friedman has divested all standardbred horses but four. The interim relief claim relates to those four.
Friedman placed himself in the position by keeping or acquiring those horses in full knowledge of his indefinite full suspension at WEG tracks thereby he precipitated the difficulty for which he now seeks relief. Whatever his motivation, it was subjective and in no way a product in whole or in part of any action or encouragement by WEG.
In terms of industry knowledge, the alleged violations, being positive EPO tests on three horses, are gross breaches of racing rules. A single violation for EPO, a non-therapeutic performance enhancer, carries an immediate ten-year full suspension and a $100,000 fine imposed by the Director upon the trainer. It is difficult to envisage an aspect of the public interest which would support acceptance of these nominations.
That knowledge may fairly be imputed to Friedman firstly as a result of promulgation by the Racing Commission in the spring of 2006 and secondly by virtue of Friedman’s prominent and sustained racing presence at WEG tracks.
In result, the claimed harm flowing from rejection of the nominations was entirely the result of Friedman’s business decision to retain the four horses. The time frame from his August 8, 2006 suspension to the nomination dates in the spring of 2007 provided ample opportunity to do otherwise.
In terms of the balance of convenience, preservation of the status quo results in Friedman’s inability to race and make nominations only at WEG tracks (Woodbine and Mohawk). The WEG suspension does not preclude him from racing or nominating at the sixteen remaining tracks in Ontario or in other jurisdictions. Friedman is not subject to any penalty or impediment imposed by the Ontario Racing Commission.
On the other hand, WEG and its predecessors have been the flagship of Ontario racing. It is common knowledge that its racing product is of the highest quality and is regarded as such locally, nationally and internationally. The cornerstone of success sustained over at least the last fifty years has been the integrity of its racing product. That such achievement is zealously guarded can be no surprise. That lofty status has an effect across the broad face of the industry. If WEG were to flounder, there would be sparse hope for the remnants of racing.
The issue of how the doping of horses is to be handled will have profound repercussions for all of standardbred racing and its many cottage industries.
The issue of Woodbine’s Racing Rules founded on contractual and private property rights can only be fairly and properly decided on a full evidentiary base. Until that time, the balance of convenience scales weigh heavily in favour of WEG.
For these reasons read with the oral reasons, the application for interim relief was refused.
DATED this 17th day of May 2007.
BY THE PANEL (original signed by)
______________________
Rod Seiling
Chair
______________________
James M. Donnelly
Vice Chair
______________________
George Kelly
Commissioner
IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF THE APPEAL OF
STANDARDBRED LICENSEE WAYNE PRESZCATOR
Wayne Preszcator appealed on the issue of penalty from Standardbred Ruling SB36632 dated March 30, 2007, wherein he was fined the sum of $1,500 and suspended for 60 days for violation of Rules 9.09 and 26.02 of the Rules of Standardbred Racing.
On April 26, 2007, a Panel of the Commission consisting of Vice-Chair, Hon. James Donnelly and Commissioners George Kelly and Brenda Walker convened to hear the appeal. Brendan Van Niejenhuis appeared as counsel for the Administration and Wayne Preszcator appeared on his own behalf.
On reading the exhibits filed, and on hearing the evidence of Wayne Preszcator, and on hearing the submissions of counsel and of Wayne Preszcator, the Panel ordered as follows:
The fine of $1,500 was upheld;
The suspension of 60 days was varied to a suspension of 13 days, which have already been served from April 4, 2007 to April 16, 2007 inclusive.
The Panel indicated that written reasons for decision would be released at a subsequent date.
DATED this 30th day of April 2007.
BY ORDER OF THE COMMISSION
John L. Blakney
Executive Director
IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF THE APPEAL OF
STANDARDBRED OWNER AUBREY FRIEDMAN
Standardbred owner, Aubrey Friedman, requested a hearing to request Commission review of the actions of Woodbine Entertainment Group (“WEG”) in prohibiting the acceptance of entries of horses owned by Friedman at Woodbine Racetrack and Mohawk Raceway.
On May 9, 2007, a Panel of the Commission consisting of Chair Rod Seiling, Vice-Chair Hon. James Donnelly, and Commissioner George Kelly, convened a hearing for the purposes of determining whether the Commission should take jurisdiction and hold a full hearing to review the actions of WEG.
At the hearing on May 9, 2007, Aubrey Friedman also requested an interim order staying WEG’s prohibition and requiring WEG to accept his entries and nominations pending a final determination of his application to review WEG’s actions, if the Commission decided to take jurisdiction.
Also at the hearing on May 9, 2007, the Ontario Harness Horse Association (“OHHA”) brought a motion for intervenor status for the purpose of making submissions on Friedman’s application. The application for intervenor status was granted in a preliminary ruling by the Commission.
At the hearing, Brendan Van Niejenhuis appeared as counsel for the Administration. Warren Rapoport appeared as counsel for Aubrey Friedman. David McCutcheon and Colleen Butler appeared as counsel for WEG. Frank Cesario appeared as counsel for OHHA.
On reading the application record, the responding application record, and the supplementary application record, and on hearing the opening submissions of counsel, the Panel ruled as follows:
The Commission has jurisdiction to hold the hearing requested by Aubrey Friedman.
The request for a variation or stay of the decision by WEG is denied.
The Panel as constituted on May 9, 2007, is seized of the matter on its merits.
The matter must be expedited and counsel must discharge their duties and be available.
The Panel as constituted on May 9, 2007, is also seized of the hearing requested by Standardbred Licensee Todd Gray.
Subsequent to the hearing, the Panel issued the following clarifications through Senior Legal Counsel:
There are to be two separate hearings (Friedman and Gray). The Gray hearing is to proceed first, followed by the Friedman hearing. The Panel is not ordering that the two hearings be joined.
With respect to the issue of the EPO positives, the Panel is proposing that there may be merger of this issue as between the Friedman and Gray hearings.
The Panel gave oral reasons for its decision which form part of the transcript and is attached to this Ruling.
DATED this 10th day of May 2007.
BY ORDER OF THE COMMISSION
John L. Blakney
Executive Director
ONTARIO RACING COMMISSION
STANDARDBRED HEARING
IN THE MATTER OF
WOODBINE ENTERTAINMENT GROUP and AUBREY FRIEDMAN, Owner
This is an excerpt of the proceedings held before The Ontario Racing Commission, Re: AUBREY FRIEDMAN, taken before Toronto Court Reporters, Suite 1410, 65 Queen Street West, Toronto, Ontario, at 10 Carlson Court, Suite 400, Mississauga, Ontario, on the 9th day of May, 2007.
HELD BEFORE: Rod Seiling, Chairman
J. Donnelly, Vice Chair
G. Kelly, Commissioner
Appearances:
Brendan Van Niejenhuis, for the Ontario Racing Commission Administration,
Warren Rapoport, for Aubrey Friedman,
P. David McCutcheon for Woodbine Entertainment Group Racing Stables.
Hearing continued ...
CLERK: All rise. This hearing before the Ontario Racing Commission is now in session.
MR. CHAIRMAN: Please be seated. I want to reiterate the panel has not made a decision but we did find it odd that we would hear the arguments in advance of the evidence. In regard to the bulk of the material and the thoroughness of the arguments we are of the preliminary view that we have a sufficient base on which to decide the issues. However, if there is additional evidence you think we should hear we are prepared to hear it.
MR. VAN NIEJENHUIS: Perhaps we could just take two minutes to have a small word with counsel.
MR. CHAIRMAN: Okay.
(DISCUSSION OFF THE RECORD)
MR. RAPOPORT: Are you content that you have enough information for the stay ruling as well because that is obviously my concern that that be dealt with today given the various urgency reasons set out in the affidavit material.
MR. CHAIRMAN: We feel we have enough information to deal with all the issues before us.
MR. RAPOPORT: Then I am content with the matter as it stands but my friends may have different views.
MR. MCCUTCHEON: I would ask for your indulgence to speak to my client for a minute if I could, Mr. Chair. My client is agreeable to that, Mr. Chairman. Thank you.
MR. CHAIRMAN: We will recess and we will be back in at 12:30.
MR. MCCUTCHEON: Thank you.
LUNCH BREAK
Upon Resuming...
CLERK: All rise. This hearing of the Ontario Racing Commission is now in session.
MR. CHAIRMAN: Please be seated. After careful consideration of the evidence and the materials supplied the panel this Ontario Racing Commission has jurisdiction to hold a hearing on the basis of the Sudbury Downs decision. This issue relates to horse racing generally. The substantial issues are wide in application that are involved in this case. The public interest requires the ORC to exercise its responsibility that the issue must be resolved.
Any variation of the Woodbine order or stay as have been referred to by counsel is denied because it amounts to prejudging the case. However, the matter must be expedited. We regard ourselves as seized of the issue. To avoid the risk of conflicting decisions we propose that the panel will hear both the Gray and Friedman cases. The panel will work with the Administration to expedite the hearing. Because this is a serious matter we expect counsel to discharge their duties and be available. It may be that the EPO issues are common to both cases and can be tried with all counsel participating at the same time. Thank you very much.
CERTIFIED CORRECT:____________________________
RAYMOND P. MACDONALD, B.A., CVR
Commissioner of Oaths