IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;

AND IN THE MATTER OF THE APPEAL

OF NORTHERN HORSEMEN’S ASSOCIATION

Northern Horsemen’s Association appealed the Notice of Order dated December 5, 2007, issued by the Executive Director. The Order approved the cancellation of Wednesday, December 12, 2007 at Sudbury Downs Raceway. A previous Order dated October 22, 2007 had required Sudbury Downs to reschedule 3 race dates lost due to a labour dispute on Wednesdays November 28 and December 5 and 12. That order also set out certain conditions whereby the final Wednesday could be cancelled if benchmarks were not met. The Executive Director determined that the condition for cancellation had been met. The Order of December 5th was issued canceling December 12, 2007 and requiring extra races be held on December 15th and 31st. The Northern Horsemen’s Association appealed that decision.

The Ontario Racing Commission Panel hearing the matter consisted of Chair Rod Seiling and Commissioners George Kelly and David Gorman. The Panel convened on December 13, 2007. Aaron Dantowitz and Wendy Hoogeveen appeared for the Administration and Robert Bodkin appeared for the Northern Horsemen’s Association.

Upon reviewing the evidence and on hearing the submissions by Counsel for the Administration, the Northern Horsemen’s Association and the written submissions from Sudbury Downs, the Panel granted the appeal and ordered Sudbury Downs to hold a race date on December 22, 2007 at Sudbury Downs Raceway.

Written reasons to follow.

DATED at Toronto this 17th day of December, 2007.

BY ORDER OF THE COMMISSION ______________________________

John L. Blakney

Executive Director

REASONS FOR DECISION

Overview

1. The Northern Horsemen’s Association (NHA) appealed the Executive Director’s decision to allow Sudbury Downs to cancel its Wednesday, December 12, 2007 race date. This race date was one of three rescheduled dates that were ordered to be raced in a decision by a Panel of the Commission in a Ruling, 011/2007 (Exhibit 1, tab 8). This ruling was the result of a hearing conducted to hear an appeal by Sudbury Downs of an order by the Executive Director to race three of six live race dates cancelled in August of this year due to a labour disruption. An oral decision was provided to grant the request, with written reasons to follow.

Background

2. A hearing was convened before a Panel of the Commission on December 13, 2007 to hear the appeal. Legal Counsel for the Administration, Aaron Dantowitz, assisted by Wendy Hoogeveen, told the Panel that Sudbury Downs had chosen not to attend the hearing and had faxed their submission. It was entered into the record as Exhibit 2. Representing the NHA was its President, Robert Bodkin, who was assisted by the association’s Past Chair, Cheryl Danyluk.

3. The Chair of the meeting, Commissioner Seiling, stated that Sudbury Downs had requested permission to participate in the meeting via conference call and had been informed that it was not the policy of the Commission to conduct hearings in that manner unless there was a justifiable reason. Sudbury was informed that distance did not qualify as an acceptable reason and that it has been proven very difficult to accommodate participation in a hearing via telephone as the court reporter finds it problematic to hear and record what is being said.

4. Sudbury Downs advised the Commission via communication dated December 3, 2007 (Exhibit 1, tab 7) that it intended to cancel the makeup December 12, 2007 live race date. It stated that this decision was in accordance with the November 7, 2007 Notice to the Industry. That notice stated if analysis showed after the first two days of the makeup races, it could be demonstrated that the number of entries is below the racetrack’s ability to card 10 races per day or that horses are being entered to race where it would result in the percentage of horses racing more than once in 7 days increasing, the last race date (December 12) would be cancelled (Exhibit 1, tab 7). The track files statistics showing it only raced nine races on both makeup dates and that the number of race backs, percentage wise had increased.

5. Ms. Hoogeveen, on behalf of the Commission, in a letter dated December 4, 2007 (Exhibit 1, tab 6) informed Sudbury Downs that it could not cancel the race date unless it received prior approval from the Commission. This letter informed the track that the information received from the track along with input from the NHA would be considered. It also said that Senior ORC Judge, Chuck Fraleigh, would be in contact to gather more information.

6. The NHA provided input via a letter to the Executive Director dated December 4, 2007 (Exhibit 1, tab 5) that provided a statistical analysis of the races at Sudbury for the year. It also alleged that the condition sheet was very late for the November 28, 2007 race date and that the December 5, 2007 date was raced with potential races left in the box.

7. On December 5, 2007, the Executive Director issued a Notice of Order (Exhibit 1, tab 2) allowing Sudbury Downs to cancel the December 12, 2007 live race date. Two conditions were attached to that order. Sudbury had to race a minimum of thirteen races for both its December 15 and 31, 2007 race dates, and that the development of the conditions sheets and the draw for both dates be supervised by an ORC Judge.

8. The NHA, in a letter dated December 5, 2007 (Exhibit 1, tab 1) appealed the decision and requested a rescheduling of the lost date to December 22, 2007.

9. Mr. Bodkin introduced a number of new exhibits, 4 through 10. It was his claim that these documents demonstrated that Sudbury did not meet the conditions set forth by the Director that would have enabled the cancellation of the December 12th race date.

10. With respect to the November 28th race date, he testified that the normal practice for the track is to issue the condition sheet on the Wednesday and for the draw to be held on Friday. In this instance, he stated that the condition sheet was not available until Friday and the draw was not made until Saturday. He provided the names of a number of horse people who, he testified, would have raced at Sudbury but instead opted to race at other tracks to ensure their horses raced.

11. With respect to the December 5th race date, Mr Bodkin testified the track chose to leave a 5-horse and a 6-horse field in the box and not race them contrary to what the track has done all year with these types of class of races. He argued that Exhibits 5, 7 and 8 proved his contention. He also tabled Exhibit 4, which was an updated version of the NHA’s analysis of the number of horses per race and type of races at Sudbury for 2007 as per Exhibit 1, tab 5. This Exhibit indicated that the only two days of racing that Sudbury conducted in 2007 that did not have some short fields were November 28 and December 5, the two rescheduled dates that had conditions attached to their running.

12. Mr Bodkin also argued that the percentage of horses that was running back to back was not marginally different than was the experience at the track all year. He referenced Exhibits 10 and 6 respectively that he claimed proved his point and that when they did so, there was no corresponding drop off in performance.

13. Mr. Bodkin argued that there were sufficient horses to fill a full race card on the 22nd as the horses are there for the last day of racing in 2007, the 31st. The only reason that there is no scheduled date for the 22nd currently is that the contract with Sudbury calls for a set total number so this date is not utilized. He also stated that except for two stables, all the approximately 150 horses available for racing at Sudbury would be off until April of 2008 when the track commences racing for that year.

14. Mr. Dantowitz reminded the Panel that in the Director’s order re the conditions for cancellation, only one of the two conditions had to be met as he asked the Panel to uphold the order. He also reminded the Panel that the issue of “race backs” is not before it but he did agree that the late posting of the November 28, 2007 condition sheet would not have been in the spirit of the Director’s order for the rescheduling of the three makeup dates.

15. Senior ORC Judge Fraleigh confirmed he was the author of Exhibit 3, a December 11, 2007 memo to Ms. Hoogeveen that confirmed details regarding horse supply and meetings with both Sudbury Downs and NHA representatives. He testified that it is normal for the horse supply to drop off at Sudbury at this time of the year but did note that the lateness of the posting of the condition sheet for November 28 race date could have affected the number of horses entered, and he confirmed that there were two possible short field races left in the box for December 5th.

Decision

16. The Panel, after reviewing the testimony and considering the evidence including the submissions received, order Sudbury Downs to race a full card of racing on December 22, 2007 with the same supervisory conditions imposed by the Director for the December 15 and 31 dates for both the condition sheet posting and the draw.

Reasons for decision

17. The Panel agrees with Mr. Dantowitz that it has additional information that was not available to the Director when the order was made to allow for cancellation of the December 12, 2007 date.

18. The Panel notes as did Mr. Dantowitz, that both Sudbury Downs and the NHA, working from the same base of information, differed in arriving at the exact numbers for the same matters. The manner in which race backs were calculated is an example. Given the track will be down to one race day per week at this time, the issue will be moot and Mr. Bodkin assured the Panel there will be sufficient horses to fill the races.

19. The Panel agrees with Mr. Dantowitz that there was no direct evidence of manipulation as alleged by the appellant.

20. The Panel notes that Sudbury Downs historically races short fields. Only the two makeup dates of November 28 and December 5 went with full fields.

21. The Panel agrees that the late posting of the condition sheet for the November 28, 2007 races, for whatever reason, likely caused a shortage of entries for that day of racing.

22. The Panel accepts that the track, had it so chosen, could have had a tenth race for December 5, 2007. It had the option to card either condition 11 with 5 horses entered or condition 10 with 5 horses entered and a sixth allegedly available to go to of which the race secretary was reportedly aware. Either option would have made a tenth race.

DATED this 18th day of December 2007.

Rod Seiling

Chair