Ontario Racing Commission
RULING NUMBER COM TB 001/2008
COMMISSION HEARING TORONTO, ONTARIO – JANUARY 23, 2008
IN THE MATTER OF THE RACING COMMISSION ACT S.O. 2000, c.20;
AND IN THE MATTER IN THE APPEAL OF
THOROUGHBRED LICENSEE AARON ALEXANDER
The Chair of the Ontario Racing Commission designated a Panel to hold a hearing to determine:
(a) whether the Commission had jurisdiction with respect to a complaint by Aaron Alexander concerning the actions of Woodbine Entertainment Group (WEG) in issuing a notice to him under the Trespass To Property Act; and, if so
(b) whether the Commission should assume that jurisdiction.
On January 23, 2008, Chair Rod Seiling, Vice Chair Hon. James Donnelly and Commissioner George Kelly convened to hear the issue of jurisdiction.
Robert McQueen appeared on behalf of Aaron Alexander, David McCutcheon and Angela Casey appeared for Woodbine Entertainment Group, and Johanna Braden appeared for the Administration.
On reading the exhibits and hearing the submissions of the parties, the Ontario Racing Commission determined that:
(a) it did not have jurisdiction to hear the matter; and
(b) if it did have jurisdiction to hear the matter, this was not a case where that jurisdiction should be exercised.
Written reasons for decision are attached to this Ruling.
DATED this 4th day of February 2008.
BY ORDER OF THE COMMISSION
John L. Blakney Executive Director
REASONS FOR DECISION
In the matter of Aaron Alexander’s exclusion from Woodbine Entertainment Group’s (WEG) premises following issuance of notice of trespass May 4, 2007, Mr. Alexander, an ORC licensed exercise person, requests an Ontario Racing Commission (ORC) hearing pursuant to Section 7(k) of the Ontario Racing Commission Act (2000) (R.C.A.).
The relief sought:
- Voidance of the WEG exclusion
- Damages of $25,000
- The grounds alleged:
- The trespass notice was issued without cause
- The notice is invalid on its face by reason of a defective date
- No written Reasons for the notice were provided
- WEG acted in breach of S 19(a) Racing Commission Act 2000 which provides: "The Director shall refuse to issue a licence to an applicant or to renew the licence of an applicant if there are reasonable grounds to believe that, while the applicant carries out activities for which the licence is required, the applicant will not act in accordance with law, or with integrity, honesty, or in the public interest, having regard to the past conduct of the applicant."
- Licensees are entitled by right to a hearing by the Commission.
- Under S 11(7) R.C.A. as a person aggrieved by a decision under delegated authority.
- Under S 22(2) as a licensee subject to Notice of Proposed Order (or suspension).
Neither section has application in this proceeding. Recourse, if any, for the applicant is restricted to the Commission’s discretionary power to hold hearings "relating to the carrying out of its objects and powers." S 7(k)
As a starting point, WEG has by statute and common law, the right to exclude from its property those whom it sees fit to exclude (the "Sudbury Downs" case) OHHA v ORC (2002) 2002 CanLII 41981 (ON CA), 62 OR (3d) 44 ONT. C.A.
In the trespass context, guidance relating to discretionary hearings and jurisdiction for such hearings is rooted in the Sudbury Downs case as supplemented by ORC decisions in the separate matters of William Robinson, William Elliott and Aubrey Friedman.
Thereby underlying principles have been established relating to:
- Jurisdiction to modify private property rights incidental to the Commission’s governance function.
- Circumstances warranting such intrusion by the ORC.
- Preconditions to that jurisdiction are:
- The issue must be "primarily racing"
- It must relate to "the good of racing generally"
- The public interest will be served by holding a hearing. That public interest consideration embraces all facets of the broad spectrum of horse racing.
The burden of establishing that upon those preconditions the hearing should proceed falls to the Applicant. Long standing property rights at common law and as codified by the Trespass to Property Act are not to be interfered with lightly. Hence that burden of proof is heightened.
The Robinson Reasons for Decision are instructive:
- Although the issue must relate to "the good of racing generally", relief is not restricted to monumental industry-wide issues. Individual licensees may have their rights reviewed in the context of the public interest in the good of horse racing generally.
- Many trespass disputes will fail to meet the threshold requirements and so will be beyond Commission review.
Assuming the threshold has been met, the issue becomes – given the Commission’s obligation in its governance role to: "Exercise its powers and perform its duties in the public interest and in accordance with the principles of honesty and integrity and social responsibility." – (S 6) Should the jurisdiction conferred be exercised?
That exercise requires consideration of:
- Rights of the licensee particularly as relating to opportunity to earn a living in a chosen career.
- WEG’s right to ORC support when its business goals and methods accord with the ORC mandate.
- The broad responsibility of the ORC, the boundaries of its resources and the obligation to apply those resources responsibly. The Commission must deal with priorities where necessary and avoid micro-management. It must not become "a trespass court or a forum for resolution of private contract disputes." – William Elliott #2
- This application by Mr. Alexander came forward in less than classic presentation. There was no evidence written or oral, and no agreed statement of facts. The documentary record was:
- A "document brief" which included the Notice of Appeal, counsel’s letter of October 31, 2007, requesting a hearing, and notice of the hearing.
- Letter of July 19, 2007, from WEG to the appellant’s solicitor stating: "Employees at WEG met with Mr. Alexander on May 20, 2007 where the issues that lead to Mr. Alexander being trespassed were fully explained to him. Mr. Alexander responded to these issues. These were reviewed and it was decided continued denial of access to WEG property was warranted. If Mr. Alexander resolves these issues to our satisfaction, he can make application to have his access conditions changed."
- WEG’s application for access rights signed by the Applicant and dated 31/03/07.
- A page from the WEG/HBPA Agreement.
- Trespass notice May 4, 2007.
- WEG’s Thoroughbred Rule Book.
Beyond that limited evidentiary base, the Panel had the content of the Notice of Appeal and counsel’s oral, and in some cases, written submissions. Analysis of that less than robust Record proceeds as follows:
- Material factual considerations bearing on the "primarily racing" aspect include:
- No breach of racing rules or directives is alleged.
- There is no involvement of the treatment, care, medication, training or racing of any racehorse.
- No pre-race or post-race conduct or misconduct is involved.
- No issue of racing integrity or impropriety.
- There is no involvement of racing stock or of racing personnel in terms of owner, trainer, driver, groom or racing official. (the Applicant is a licensed pony boy)
- The incident occurred on the backstretch of racetrack property.
- One ORC licensed person was involved. It is unclear whether the second party was a licensee.
- The dispute between the parties did not relate to any aspect of racing.
- The confrontation emanates from what appears to be a long-standing personal small-scale vendetta.
- The substance of the dispute as disclosed by this Record was: Harnessing and removing a lead pony from the Applicant’s stall by the other party. Allegations about "where I was getting the feed and hay for my horses." A retort by the Applicant, "why he was concerned with my business affairs." A response that was "very aggressive – rushed toward me – right up into my face – swearing at me – threatened to call security."
In the Notice of Appeal, the Applicant described his response: "I was to leave the premises immediately. I was accused of stealing feed and hay and of using old feed and hay and of using stalls to break other people’s horses. I denied all of the allegations as they are untrue."
That incident lead to the Notice of Trespass. The Applicant contracted with WEG by executing and delivering WEG’s Application for Access Rights. By that contract, the Applicant agreed to abide by WEG rules in these terms:
- "I acknowledge and agree that WEG reserves the right to revoke the access rights, if granted, at any time in its sole and absolute discretion and without notice, reason or compensation."
A similar reservation of WEG’s rights is found in Rule 1.1(b) of WEG’s Thoroughbred Rule Book. "WEG RESERVES THE RIGHT UNDER THE TRESPASS TO PROPERTY ACT (ONTARIO) AT ANY TIME TO DENY ADMISSION TO ANY PART OR PARTS OF THE PREMISES TO AN APPLICANT OR ANY OF HIS AGENTS, SERVANTS, EMPLOYEES, INVITEES OR ANY PERSONS UNDER HIS CONTROL IN THE SOLE AND ABSOLUTE DISCRETION OF WEG WITHOUT ANY REASON OR CAUSE EXISTING OR BEING STATED OR GIVEN."
Presumably for the purpose of drawing attention, that provision in the rules is in capital letters and bold print.
The Applicant contends that WEG’s failure to provide written reasons for invoking its trespass remedy amounts to denial of due process, natural justice and procedural fairness.
The Access contract and WEG’s Rule 1.1(b) provide an expression of WEG’s common law and statutory right but not an extension thereof. Since it is not an extension of rights, it cannot be seen as an unfair term forced upon a party to the contract through an imbalance of bargaining rights. That term stands for what it is, a statement of the status quo by one party and an acknowledgment thereof by the other. When viewed from that perspective, the term weighs against an argument by the Applicant in favour of a right to a due process, natural justice or a procedural fairness review following exclusion.
WEG maintains that oral reasons for the trespass notice were given at the meeting of May 20, 2007. Some measure of support for this assertion is found in the Notice of Appeal (reference to feed and so on). WEG gave no supplementary written reasons, nor was it so obliged under trespass law.
Unless jurisdiction is conferred on the ORC through the "Sudbury Downs" criteria, the exercise of WEG’s property rights is not subject to due process review.
In terms of the public interest, certain elements are axiomatic:
- WEG’s business interest is in producing premium racing in terms of quality and integrity.
- That lofty aspiration dovetails with the Commission mandate to perform its duties in the public interest and in accordance with principles of honesty, integrity and social responsibility.
- To the extent of that dovetailing, WEG’s efforts warrant ORC support.
The public interest which applies to all facets of racing is not served by deflecting the Commission from its legitimate obligations and enterprises and instead engaging the Commission in disputes which do not meet the "Sudbury Downs" criteria. Such diversions deserve summary disposition and may in the future anticipate same.
This backstretch personal discord fails to meet the threshold of conduct "primarily relating to racing." It does not meet the standard of "the good of horse racing generally." The public interest does not support ORC intervention. The Applicant has not discharged the onus of establishing the "Sudbury Downs" criteria. WEG is not called upon to litigate the exercise of its lawful property rights because the ORC has no jurisdiction to intervene.
In passing, comment is made:
- ORC hearings are not the forum for a claim for assessment and recovery of damages.
- The assertion that the Trespass Notice is void because the date thereon although accurate in substance is distorted in form is devoid of merit ("this May day of Friday 4, 2007").
- Reference is made in the Notice of Appeal to a Human Rights proceeding. That underlying incident occurred in 2000. The same two opponents were involved. No attempt was made to re-litigate that issue in this proceeding. Counsel for Mr. Alexander confirmed that the current incident is not claimed to be racially motivated.
- Reference was made in counsel’s submissions to a provision in the WEG/HBPA contract. The Applicant is not a member of HBPA. That contract is irrelevant.
- For these reasons, the Application is dismissed.
Dated this 4th day of February 2008.
James M. Donnelly Vice Chair