Bruno Schickedanz v. Woodbine Entertainment Group, 2010 CanLII 99101

RULING NUMBER COM TB 020/2010

COMMISSION HEARING TORONTO, ONTARIO – AUGUST 17 & 26, 2010

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

AND IN THE MATTER OF THE APPEAL AND REQUEST FOR HEARING BY

THOROUGHBRED LICENSEE BRUNO SCHICKEDANZ

On June 29, 2010, thoroughbred horse “Wake at Noon”, owned by Bruno Schickedanz (“SCHICKEDANZ”) (ORC Licence # 117459) was euthanized at Woodbine Racetrack.

On July 2, 2010, Woodbine Entertainment Group (“WEG”) notified SCHICKEDANZ in writing that his stabling and racing privileges at WEG were suspended.

On July 9, 2010, SCHICKEDANZ wrote to the Ontario Racing Commission (“ORC”) and requested a hearing for the purpose of overturning WEG’s decision to suspend his racing and stabling privileges at Woodbine Racetrack.

On August 17 and 26, 2010, a Panel of the ORC consisting of Chair Rod Seiling, Vice-Chair James Donnelly, and Commissioner John Macdonald, was convened to hear the appeal.

Frank Roth appeared as counsel for SCHICKEDANZ; SCHICKEDANZ attended the hearing in person, David McCutcheon and Jacob Kauffman appeared as counsel for WEG, and Angela Holland appeared as counsel for the Administration.

Upon hearing the testimony of Rick Grant, Steve Koch, Jamie Martin, Greg de Gannes, Tracey Harpley, Dessislav Luokanov, Tom Marino, SCHICKEDANZ, Mark Casse, Abraham Katryan, Vicki Pappas, and Mark Fournier, upon reviewing the exhibits filed and upon hearing the submissions of counsel for SCHICKEDANZ, counsel for WEG, and counsel for the Administration, the Panel denied the appeal.

The Panel’s Reasons for Decision is attached to this Ruling.

Dated at Toronto this 6^th day of October, 2010.

BY ORDER OF THE COMMISSION

John L. Blakney

Executive Director

REASONS FOR DECISION

Overview

1. Licensee Bruno Schickedanz appealed to the Ontario Racing Commission (ORC) regarding the actions of the Woodbine Entertainment Group (WEG) to deny him both stabling and racing privileges at Woodbine Racetrack.

Background

2. Legal counsel for the respective parties, Frank Roth for the appellant, David McCutcheon and Jacob Kauffman for WEG and Angela Holland for the ORC did not dispute the facts leading up to June 29, 2010, when Mr. Schickedanz’s horse, WAKE AT NOON, had to be euthanized on the Woodbine track due to fracturing his left leg during a workout “breeze”. Mr. McCutcheon did not dispute that the ORC had jurisdiction regarding the denial of racing privileges for the appellant but argued that jurisdiction did not carry over to the granting of stalls at Woodbine Racetrack.

3. The ORC has an ongoing investigation into the matter but as yet it is not complete. Commission Investigator, Rick Grant, stated that the investigation was based on whether any ORC rules had been violated, not WEG rules.

4. WEG has its own set of track rules (Ex. 12) which every horse person who races at their tracks is required to sign. The pertinent sections are found at 1.1, 3.6 and 6.16.

5. WAKE AT NOON, a thirteen year old thoroughbred, was bred, owned and raced by the appellant for his entire racing career. The horse was voted Canada’s top thoroughbred in 2002; he earned over $1.6 million during his career. He retired twice to the breeding shed wherein he was a failure due to his inability to impregnate the mares with which he was mated.

6. The horse was first retired to stud in 2004 but raced again that year. His last race was November 18, 2007, wherein he had to be vanned off the racetrack due to injury. The injury report indicates the horse injured his front left leg. Vanning off a horse from the track is not a normal occurrence. It is done when a horse is injured so severely it is unable to exit the track on it own, or upon the order of the track veterinarian. The horse, prior to that race, had raced sound as the record shows two scratches during his sixty-seven races. Mark Fournier trained him his last year where he had dropped in class to Fort Erie. He had taken over for Abraham Katryan who had trained him for the remainder of his racing career.

7. The horse wanted to run and was happiest when afforded that opportunity. He had been galloped for three months except for a week off in March, the reasons thereof were never offered. Exhibit 17, WAKE AT NOON’s training chart supported that testimony. Tracy Harpley, Mr. Schickedanz’s farm manager, believed the horse’s exercise program to date showed he was still capable of racing.

8. Uncontroverted testimony from Ms. Harpley and exercise rider for the appellant, Dessislav Luokanov, indicated that the horse, up to that fateful day was fit and sound in their view. Testimony indicated that it was a group decision of Schickedanz, Harpley and Luokanov to send him to Woodbine to train. None of the aforementioned is a licensed trainer; however, Mr. Luokanov submitted that as a professional rider, with many years of experience, that in checking the horse over before riding it he believed the horse to be sound.

9. The appellant testified, confirmed by Ms. Harpley, that the workout was a step in a process to determine whether to race the horse. He claimed no decision had been made to race the horse. However, there was evidence (Ex. 1, tab 12) indicating that Mr. Schickedanz did have plans to send the horse to West Virginia and had contacted his West Virginia trainer, Robert Johnston, regarding having WAKE AT NOON race at Mountaineer Park. He admitted that there was a business element to having the horse return to the track. That contact went so far as to communications with the state steward and the provision of past performance chart lines for the horse. Mr. Schickedanz claimed that his trainer there had erred in contacting the track about the horse racing there.

10. Trainer Tom Marino had an arrangement with Mr. Schickedanz that facilitated horses being shipped to Woodbine from his Kettleby, Ontario farm to workout under his auspices. The farm’s training track was not adequate nor did it have the capability for timed workouts, a requirement to race in Ontario.

11. Mr. Marino, who was trespassed by WEG as a result of the incident, submitted that he checked the horse over on its arrival and in his opinion the horse was sound. This check consisted of his checking the horse’s legs while in the stall on its arrival. His knowledge of the horse was minimal, not knowing the actual age of the horse or if it used a tongue tie. He denied, as alleged by Jamie Martin, Vice-President of Racing for WEG, that he was ordered to workout the horse and in carrying out that order failed in his trainer responsibility. Notwithstanding, he admitted that he was told by Ms. Harpley to work the horse an easy half mile. He contended, as did the appellant and rider, that it was an unfortunate accident as the horse took a “misstep”. Mr. Schickedanz had made a public comment to the media that the cause of the accident was that WAKE AT NOON had been spooked by another horse. His rider confirmed that there were no other horses in the vicinity.

12. Mr. Marino’s willingness to accept direction from the Schickedanz team was significantly different from trainers de Gannes, Casse, Katryan and Fournier. All of them testified they would not accept a new race horse into their respective barns and breeze it without taking steps as to its fitness and soundness.

13. Dr. de Gannes, who trains some horses for the appellant, would work a 13-yr-old horse but he had preconditions. He had to personally examine the horse, as to its fitness and soundness and be informed of its prior state of exercise. According to him there was a higher risk for a breakdown for a 13-yr-old versus a younger horse because of the age differential.

14. Mark Casse submitted that it was “appalling” to train WAKE AT NOON because he was a 13-yr-old former champion and had earned his retirement. He opined it is too risky to bring back a retired horse of that age due to the deterioration of muscle and bone in the horse. It was okay to exercise him at the farm but it was a mistake to bring him to the track as it would make the horse “competitive”. He personally, would refuse any request to train a 13-yr-old horse. He would not train any horse given to him for at least two weeks. In that interim, he would assess the horse’s ability to train including its fitness and soundness. He was not aware of any 13-year-old horses racing but admitted that there could be some at “cheap” racetracks.

15. Mr. Katryan, who trained WAKE AT NOON for his entire racing career except 2007 when he was trained by Mark Fournier, stated he would not train a 13-yr-old. Furthermore, he could not recall ever seeing a 13-yr-old race. When Major Zee was referenced, a 13-yr-old horse that Mr. Fournier raced, he said the circumstances were different. A horse that races continually would be less at risk than one that had been retired as it would have better stamina and also there was the issue of a gelding versus a stud horse. Like Mr. Casse, he would never agree to breeze a horse until he had it in his barn for an adequate period of time to assess its condition.

16. Mr. Fournier trained WAKE AT NOON in 2007 wherein he raced at a much lower level of racing so that he could be competitive. He acknowledged that the horse had to be vanned off the track in his last start but never was made aware of the extent of the injury to his front left leg. He treated the horse post race for pain but the horse was sent to the farm shortly thereafter.

17. In terms of awareness, all three aforementioned individuals became aware of the tragic incident involving WAKE AT NOON the same morning it occurred. All heard about it via word of mouth on the backstretch and all testified that they were saddened by the incident. Mr. Casse stated that he continues to be questioned about the incident in his travels to other tracks in North America and that the incident was bad for racing. He had just been questioned when in Florida the other day according to him. He stated the Horsemen’s Benevolent and Protective Association (HPBA), an organization that works to promote the interests of horse people, had taken a position supporting WEG in this matter. The significance, according to him, is that WEG and HPBA rarely agree on matters.

18. Vicki Pappas, a person with 45 years experience in the horse racing business in a variety of positions from trainer, breeder, owner, agent, Chair of the Long Run Society for retired horses to racetrack employee had a close association with the horse as she helped the appellant pick out his dam for purchase. She was of the same opinion as Mr. Casse that the incident was bad for racing as it causes a negative public outcry. She did acknowledge that a 13-yr-old can race but it was very difficult to bring back a horse of that age after it had been “laid off” for 3 years. She opined that one should not bring a horse to Woodbine unless there was an intention to race it.

19. Mr. Marino’s willingness to accept direction from the Schickedanz team to breeze the horse is significantly different from the opinions of the other trainers who collectively have years of experience in thoroughbred horse racing. All of them with the exception of Dr. de Gannes, who was a client of the appellant, were of the opinion they would require a minimum of 2 weeks to assess the condition of a horse before ever breezing it on the track. Given de Gannes is a practicing horse veterinarian, it is reasonable to expect that an examination by him would be thorough just as the pre-race veterinary examination of every thoroughbred that races in Ontario. Mr. Marino, on being questioned by Steve Koch, Vice President of Thoroughbred Racing at WEG, told him he was only doing what he does for Schickedanz.

20. The horse went out onto the track in good condition, normal procedures were followed including identifying the horse for it to be timed, that the workout was normal until the horse stumbled and fell. Track officials, on seeing this put out a page for a veterinary doctor. Dr. Candace Allen was the first to respond and quickly deduced that the horse had to be euthanized due to the severity of the injury.

21. Mr. Schickedanz has owned thousands of horses. He currently owns about five hundred. They are located on his two farms in Kettleby, Ontario, Ocala Florida and at four tracks, Fort Erie, Mountaineer, Thistletown and Presque Isle under the care of trainers that he employs. He considers himself knowledgeable in the horse business and is semi active in it. He also owns thirty different companies and devotes equal time to them all.

22. Mr. Schickedanz testified that he loved WAKE AT NOON and would do nothing to harm the horse. Juxtapositioned to this statement was the undisputed testimony of Ms. Pappas that in a job interview with Mr. Schickedanz some years ago, he referenced the horses as “meat on a hoof”. On hearing this statement she opted to not consider any employment with him.

23. According to him, the group decision made on June 26, 2010 was just the first step towards possibly racing the horse. Mountaineer Park was considered because it was his opinion that the horse raced better on dirt than it did on the poly track at Woodbine and that Fort Erie Racetrack had tougher conditions for an older horse to race than did Woodbine.

24. Mr. Schickedanz was not a passive owner. Mr. Roth described him as “hands on”. The evidence clearly reflects that he actively participated in the decision making process as they related to his horses. This evidence contradicted Mr. Roth’s characterization of his involvement when arguing the merits of interim relief.

25. The appellant believed that WAKE AT NOON was eligible to race at Woodbine. This statement was in juxtaposition of that offered by Jamie Martin who referenced Woodbine’s Thoroughbred Rule Book (Ex 12), Rule No. 6.16 which reads “Any horse 10 years old or older that has run for a claiming price under $12,500 in the past 12 months and has not won a race in the past 12 months, will not be eligible to race at Woodbine”.

26. Mr. Schickedanz testified that older horses can and do race. He referenced a number of examples to support his position such as Nine Pine who won a Grade I stake at 12 years old the past week. Evidence was supplied to ORC Investigator Rick Grant (Ex. 1, tab 14) by the appellant that purported to show older (10 & up) horses do race. Those numbers for over a two week period across North America showed 15 11-year-olds, 6 12-year-olds and 6 13-yr-olds raced. WEG in its Book of Documents (Ex. 7) at tab 13 showed that from 2007 up and including 2010, 14 10-year-olds and two 11-year-olds raced at Woodbine. The ability to race as an older horse is governed by a number of factors with one of the more important ones being whether a horse raced at an early age and what toll, if any, did it have on the animal and, did it race continuously.

27. In terms of his notice regarding stalls and racing privileges being withdrawn by WEG, Mr. Schickedanz first heard about it via Dr. Greg de Gannes. While he and Steve Koch traded voice mails, they never did talk to one another.

28. Jamie Martin did confirm to him via a telephone conversation that his stabling and racing privileges at Woodbine had been revoked.

29. The appellant stated that he could not remember that WAKE AT NOON had to vanned off the track in its last race on November 18, 2007. Exhibit 3, tab 2 indicates that the horse was lame on its front left leg.

30. WEG executives, Jamie Martin and Steve Koch, agreed that WAKE AT NOON was not sneaked onto the Woodbine premises. Horses, according to Woodbine procedures, are to be registered 24 hours in advance of their arrival but registering via the “in slip” sign in is not unusual. The appellant’s employees only registered the horse as it entered the stable gate on June 29, 2010, to workout despite the fact the decision had been made on June 26, 2010 to ship the horse to Woodbine along with two other horses which were registered (Ex. 1, tab 3)

31. Mr. Martin testified that the greatest threat to thoroughbred racing is the health and welfare of the horse. According to him, the tragic demise of the horse, Eight Belles, during the Kentucky Derby has heightened this threat. WEG acted in the WAKE AT NOON incident to protect its business interests. Those interests include maintaining a good safety record as it relates to horses at the track. WEG has undertaken a number of proactive steps to help with its safety and welfare for horses at Woodbine. To support those efforts is a policy of transparency that includes posting all horse related incidents on its website. Having it occur during Plate week had no bearing according to Mr. Martin who testified that he thought having all the Plate week on goings might help the incident get under the radar. The public response was not related to WEG public comments in his view.

32. WEG’s concern was not whether Commission rules had been violated but whether the appellant had violated WEG rules. Mr. Martin submitted that the horse was ineligible to race at Woodbine under WEG’s rules, No. 6.16 (Ex. 12). This ineligibility was a concern as WEG facilities are for horses to race at Woodbine although he did admit sometimes horses train there, which do not race there but it was very unusual for a 13-yr-old horse to be training there.

33. Mr. Martin submitted that WEG trespassed the trainer, Mr. Marino, as ultimately the trainer is responsible for his horse. Owners are also held responsible, he submitted, as in this case Mr. Schickedanz was part of the decision making process.

34. He opined that Mr. Marino had no authority and was simply told to work the horse which he did. He contended that Mr. Schickedanz did not send the horse to Dr. de Gannes as he knew that he would not train the horse. Dr. de Gannes confirmed that generally speaking, Schickedanz horses shipping in from the farm at Kettlby are in good condition. Owners also are held accountable according to Mr. Martin as they too are part of the decision making process. ORC rules, in fact, have specific owner responsibility rules as they relate to the horses they own.

35. Mr. Martin stated that WEG did not investigate the horse’s demise because it was dead but he did conduct his own investigation that included talking to WEG personnel involved in the incident and Mr. Schickedanz. No meeting was ever held with the appellant but discussions did occur via telephone. According to him, he wanted to find out that if similar circumstances arose again, would Mr. Schickedanz do the same thing. Mr. Schickedanz did not believe he had done anything wrong and therefore he was not assured that under similar circumstances WEG would not see a recurrence.

36. Woodbine, according to Mr. Martin, receives thirty-eight hundred applications each year for its twenty-two hundred stalls at Woodbine. No testimony or evidence was submitted that the ORC plays any role in that allocation process. Mr. Schickedanz had stalls allotted to him via two trainers, Mr. Marino and Dr. de Gannes. Undisputed testimony indicated he only races about 20% of his horse at Woodbine.

37. A horse does not have to be stabled at Woodbine to race at Woodbine. According to ORC rules, the track must supply stalls for the day of the race. Horses do ship into Woodbine to race. Exhibits 20, 21, and 22 were tabled in support of these occurrences. These exhibits are Horsemen’s Activity Reports for three trainers, Wright, Ezra and Simmons respectively who all ship in on race day to race at Woodbine.

38. Considerable testimony was led related to media coverage of the incident. In general, they do not deal with the merits of the matter before the Panel. They are relevant in so much as they go to the issue of public interest, one of the Commission’s identified responsibilities under the Racing Commission Act along with protecting the health and welfare of the horse. Based on these media reports, the public reaction to WAKE AT NOON’s demise was very negative.

39. At the conclusion of the hearing on the merits of the appeal, Mr. Roth requested and was granted the opportunity to argue for interim relief for Mr. Schickedanz. He acknowledged that the scheduling of the hearing was a form of interim relief but submitted that any further delay was preventing him from racing his horses at Woodbine. In terms of responsibility, he suggested that it was Mr. Marino’s as trainer. Mr. McCutcheon submitted that in the past such orders had been based on allowing specific horses to run in nominated stake races and that situation was not currently operative. The Panel denied the request with written reasons to follow.

Issues

40. Does the ORC have jurisdiction to interfere over a track’s right to deny stall privileges to applicants? Did WEG act in the public interest in its response to the breakdown and euthanization of WAKE AT NOON on its track at Woodbine on June 29, 2010, by withdrawing stall and racing privileges at Woodbine for Mr. Schickedanz? Was WEG acting to protect the health and welfare of horses by withdrawing stall and racing privileges to Mr. Schickedanz in response to the breakdown and euthanization of WAKE AT NOON on June 29, 2010 at Woodbine? Should WEG be allowed to cancel Mr. Schickedanz’s racing privileges at Woodbine to protect its business interests which coincide with the public interest in racing as a result of the breakdown and euthanization of WAKE AT NOON on June 29, 2010, at Woodbine?

Decision

41. After carefully listening to the testimony and reviewing the evidence and submissions made the Panel denies the appeal.

Reasons for Decision

42. As a general rule, the broad public interest in racing includes all parties directly or indirectly involved in racing as well as the health and welfare of racing stock. Wagering levels and fan attendance have been in progressive decline. The racing industry endures sustained competition for the gaming dollar. The gaming customer upon entering track premises has an option, to gamble 12 times on a 12 race card over a three hour interval or to instantly and with capacity for instantaneous and unlimited repetitions push a button on a slot machine. Racing suffers self-inflicted misery from such as medication and chemist cheats or cruelty by excessive whipping. Callous insensitivity in the care of racing stock offends the public sense of fairness. Instinctive revulsion to cruelty to animals is a normal human response. Cruelty, apart from being intrinsically wrong, is harmful to the best interests of racing by eroding public support. Horses must rely on tracks and the industry regulator for protection.

43. The issue is not specific to this 1.6 million dollar winner that it deserved better – as it did. The problem goes to the generic issue, the proper treatment of a horse with this racing background.

44. WEG has maintained standards of excellence in performance and presentation. That result is due in large part to its exacting standards of conduct rigidly enforced. If WEG’s defence mechanisms are compromised, the public interest in the well-being of racing is the loser. If racing in Ontario is to have a future it will be with WEG but never without WEG.

45. The Panel recognizes that it may interfere in WEG’s property rights as they relate to horse racing based on the precedent of the Sudbury Downs case. The issue to be determined remains that it must be for the “good of horse racing” or as commonly referenced the “public interest”.

46. WEG, as a licensee of the ORC, is expected to uphold both the mandate and governing principles of the regulator. Protecting the public interest and the health and welfare of the horse fall within those parameters. S. 6 of the Racing Commission Act states, “The Commission shall exercise its powers and perform its duties in the public interest and in accordance with the principles, honesty, integrity and social responsibility.” TB Rule No. 15.09.01 reads, “Any act or omission in the business practices related to thoroughbred racing in any or all of its forms, which when measured against generally accepted standards of good conduct would be regarded as dishonest, unfair or unsportsmanlike shall be deemed to be an illegal practice.” Subsection 9 (a) of the rule reads, “Without limiting the generality of the foregoing, the relationship between an owner and trainer shall be based on integrity, disclosure and maintaining the health of the horse and acting in the best interests of racing.”

47. The decision had been made, in reality, to return WAKE AT NOON to the races. There was a financial aspect to his decision, a decision he did not share with Ms. Harpley as Mr. Schickedanz admitted. The contacts with West Virginia and his trainer there support this statement. All that was remaining was for the horse to fulfill his end of the equation via his training regimen which included the “breeze” at Woodbine. There were other alternatives to keeping the horse happy such as just continuing his light schedule at the farm to donating him to Long Run for adoption. A return to the races was not a panacea for happiness for WAKE AT NOON.

48. In contrast, Schickedanz, in his own version of the facts, was making progressive demands on the horse. He took no precautionary measures to protect WAKE AT NOON.

49. Returning a twice retired former champion back to the races at the age of 13 without taking any reasonable precautions as to his fitness and soundness was an ill considered decision by Mr. Schickedanz. He should have recognized the increased risks of attempting to return a 13-yr-old twice retired horse back to the races versus a younger horse. The necropsy report, now that it is available, cannot be used to try and argue WAKE AT NOON was fit and sound because it did not find anything wrong. Such a report cannot, by definition, begin to address whether a horse was “sound” for racing. Reasonable precautions would include but not be limited to having a veterinarian check out the horse as to his fitness and soundness before starting to train him, all the more pertinent given he had to be vanned off the track after his last start because he was lame in his front left leg. A complete veterinary diagnosis became all the more important when the horse had to be given a week off in March for a sore foot. Could it possibly have been related to his earlier injury? If the appellant had also taken a reasonable step to involve a professional trainer, the tragedy might have been averted both from a thorough check up as to fitness and soundness and to the advisability of trying to return WAKE AT NOON to the races. Neither a farm manger, no matter how capable she may be nor an exercise rider can be expected to posses the knowledge and skill required to prepare a race horse for racing.

50. It is also reasonable to expect that when the horse was sent to trainer Marino he would have been provided a complete history of the horse. He was not even aware of the age of WAKE AT NOON or if he wore a tongue tie. The need to put a tongue tie on the horse gives weight to Mr. Casse’s testimony wherein he said it was a mistake to bring the horse back to the track as it would make him “competitive”. Tongue ties are required to physically control the movement of the horse’s tongue so as to ensure it receives adequate air when asked to exercise above a normal rate (jogging v workout or race). This all supports the contention that Mr. Marino was mainly facilitating the Schickedanz team instructions and not exercising his own responsibilities as a licensed trainer.

51. The appropriate standard of reasonableness is articulated in Dunsmuir v. New Brunswick 2008 SCC 9, [2008] S.C.J. No. 9. “Reasonableness is a differentiated standard animated by the principle that underlies the development of two previous standards of reasonableness: certain questions come before administrative tribunals that do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible reasonable conclusions. Tribunals have a margin of appreciation within a range of acceptable solutions.”

52. Furthermore the Courts have stated in Hammather, Court File No. 381/08 “The ORC at para 3 “The ORC, in making any decision, must recognize the interests of the public, including all the participants in the industry, and the good of racing generally.”

53. The Panel concurs with Mr. Roth wherein his final submission at para 56 he states, “The law requires the ORC to examine the facts that emerge from the evidence at the hearing and decide, in its discretion, whether or not to interfere in the public interest with the decision by WEG.” He went on to quote Justice Morden from the Schickedanz Book of Authorities (Ex. 5, tab 1) at para 56 where the Justice wrote, “Whether or not the Commission takes any action after holding a hearing will turn, of course, entirely on the facts which it finds and, then, on the exercise of the broad discretion which it undoubtedly holds.”

54. In Flamboro Downs and the Belmont Hotel, SB Ruling No. 129/1995 at para 8 the Panel wrote “Horse racing must be conducted and be seen to be conducted with the utmost integrity. The future of the industry depends on maintaining public confidence that it is being operated totally ‘above board’.” We concur noting that in this instance integrity includes the health and welfare of the horse. The public will soon lose all confidence in the sport as well as those charged with the responsibility of protecting the public interest and the welfare of the horse if it perceives a dereliction of those duties.

55. It therefore follows that WEG acted appropriately in the public interest in dealing with Mr. Schickedanz. Given the almost immediate dissemination of the news of WAKE AT NOON’s demise and the negative reaction to it, WEG had not to just act but be seen to acting. The ORC can legally and does take into account the public reaction under its ability to accept hearsay evidence. It is one of the more obvious means to assist it relative to public interest issues.

56. The Court in Friedman [2007] O.R.C.D. No. 24 at para 24 wrote, “The public interest in horse racing is broad, embracing owners, drivers, grooms, industry employees and participants at all levels, including track operators. There is a public interest in the viability of horse racing, the fair and just treatment of industry participants and in the protection of the health and well being of the horses… Given the owners’ capital investment, the ability to race falls within the ambit of the public interest. That entire level of public interest requires that the ORC resolve the issue of refusal by a track operator to accept racing entries.”

57. Both WEG and the appellant have a business interest. To accommodate Mr. Schickedanz’s business interests would mean that his trump those of both WEG and the entire horse racing industry that depend on WEG tracks for their economic livelihood. This Commission has written volumes on the importance for horse racing to maintain a viable racing business at WEG tracks in as much that the business interests of WEG, a non-profit entity that exists for horse racing, become those of the industry as well. Given this fact, it is reasonable for WEG to exercise its private property rights in order to protect both its and the industry’s business interests. And more so in the case where WEG’s interest and the public interest are one and the same.

58. Mr. Schickedanz does not depend on racing to make his living. He races about 20% of his horses at Woodbine. He has other venues at which to race those horses, no evidence was led that any of them could only race at Woodbine. He already has a racing infrastructure in place for those horses to race at other tracks, both in Ontario and the United States.

59. Mr. Martin is right when he identified the welfare and health of the horse as thoroughbred racing’s biggest threat. The Panel is aware of the public outcry related to health and welfare immediately following the untimely death of Eight Belles. The Commission, from its own dealings on health and welfare of the horse on a number of issues such as the new “urging” rules is quite familiar with the public’s views on this subject. They are foursquare for health and welfare, period! If one were to doubt this truism, one only has to look at the broad base of support from the industry and the public on this rule change, a change that just a few years ago would have triggered possible boycotts from the industry and damnations from the public.

60. The industry‘s reaction in its condemnation of Mr. Schickedanz as per the HPBA support for WEG is remarkable in its own right. It is the appellant’s own organization supporting WEG, something it very rarely does. HPBA has a history of loyalty to its members come h--- or high water. Adding insult to injury in this case was the fact that WAKE AT NOON, with about $1.6 million in earnings for Mr. Schickedanz, had, in the public’s mind, earned his retirement.

61. In Friedman v Ontario Racing Commission [2008] O.J. No. 1706 the Court cited with approval the text that had been enunciated by the ORC in its decision in Lamoureux et al v Ontario Racing Commission, Nov 8, 2002, Ruling No. Com SB 22/2002. “In sum we concluded that the onus of proof in this case rests with the applicants and in order to upset the decision of the [racetrack], they must satisfy us on clear and convincing or cogent evidence that they should be permitted to race.”

62. The burden of proof is on a balance of probability. The trier of fact must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred, that the circumstances are within the Sudbury Downs criteria and require ORC intervention modifying WEG’s property rights (F.H. McDougall 2008 SCC 53, 2008 3 SCR 41).

63. The health and welfare of the horse is a prime element in the well being of racing. If the protection of the horse is not assiduous and visible, racing suffers. Death of a horse on track is a high profile industry issue. WEG is vigilant regarding health and safety issues. WEG must protect against a public misperception that it tolerates mistreatment of horses on WEG premises. The intense public response in this case demonstrates that demand for that visible protection.

64. WEG’s stated objective was to make WEG tracks the safest possible. For this purpose, a safety protocol is in place providing:

• A safe racing surface with track standards.

• A trained staff of gate help and outriders with ORC Stewards.

• The soundness of each horse is subject to veterinarian inspection on the race date.

• If a horse is scratched and goes on the Vet List it is ineligible to race until discharged by veterinarian action.

65. In order to maintain that status, WEG formulated, promulgated and enforced track rules with the consistent underlying theme:

• this is WEG’s track and WEG’s business

• participants are welcome only through compliance with WEG standards

66. The media, industry and public reaction is admitted in evidence for the purpose of proving the existence, extent and timing thereof but not as proof of its content.

67. WEG’s reservation of the permission issue is unequivocally stated in WEG track rules as follows:

1.1 (a) it is a privilege, not a right, to use the premises and race at the racetracks. Any conduct determined by WEG, in its sole and absolute discretion, to be injurious to the sport of horse racing or not to be in the best interests of the sport of horse racing, may result in the imposition of a penalty in accordance with Section 7.1 of these Rules and Regulations.

1.1(b) 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. Nothing in these Rules and Regulations shall in any way limit any other rights which WEG may have, whether at common law or in statute, including under the Occupiers’ Liability Act (Ontario) or the Trespass to Property Act (Ontario).

68. Thereby WEG emphatically reserves to itself the right to exclude persons from the premises. To that stage, WEG’s position is supported by long standing private property rights.

69. Perhaps there is room for refinement in the understanding of WEG’s position. WEG owns property and conducts a high profile successful business thereon. The operation of that business has been exemplary, enabling WEG to consistently maintain its stature as an industry leader.

70. WEG has property and business protection rights expressed in terms of statute, contract and track rules. Expression of those rights in intimidating terms may threaten to deny but is not a denial of natural justice. The harm flows not from WEG’s words but from any improper action by WEG. In the event of such unfair, harmful action, the ORC Hearing process is available.

71. The track as property owner is clearly entitled to make the decision to revoke permission to be on the property. The track need provide no intervening mediation, conciliation, negotiation, hearing or legal process. Whether that right to exclude is framed in mild or aggressive terms makes no difference. Either way the result is:

• The track has the right to make that decision.

• No matter how the track’s rule or access agreement is framed, the ORC is not bound by WEG’s decision. Nor is it in any way inhibited.

• The parties cannot by contract vary or rescind the provisions of the Racing Act.

• The horse person has an unassailable statutory right to have the track decision reviewed by ORC Hearing under authority of S11 (7) RCA 2000. The track’s words are a matter of form. Its actions are a matter of substance.

72. Thereby intimidating contractual terms add nothing to WEG’s power and diminish not in the slightest the horse person’s rights.

73. The evidence supports WEG’s actions from both the health and welfare of the horse and the public interest. Allowing WEG to exercise its private property rights is reasonable.

74. WEG’s actions are based on its own rules of racing. The Court in Whelan v Ontario Racing Commission and Woodbine Entertainment Group, 2010 ONSC 3118 found that WEG could impose rules for racing in addition to those imposed by the ORC and that the ORC’s findings of fact are entitled to deference and are reasonable. Mr. Schickedanz did not refuse to sign the agreement and therefore the portion of the ruling that is under appeal by WEG related to a refusal to waive procedural rights is irrelevant to this case. What is relevant is that Mr. Schickedanz’s procedural rights were protected via the granting of his request for the hearing.

75. The allotment of stalls does not meet the criteria established in Sudbury Downs. It is not primarily about racing but rather about economics (free stalls) and the convenience of stabling horses at the track to race.

76. Tracks, by necessity, utilize a number of criteria in allotting stalls given their respective business needs. Some of them are the quality of the horse, the quantity, the type relative to the race conditions written, readiness to race and past performance of the trainer involved.

77. One does not have to have stalls at the track to race at that track. Evidence was led that confirms this fact. Horses can and do ship in to race. The qualifying aspects for this to occur is that the horse meets the published condition for that race and that it has a timed work out within a prescribed period of time. The track must, as per ORC rules, provide the ship in horse with a stall for that race day. None of the aforementioned requires a horse to be stabled at the track. A horse can ship in for a timed work out or can use a race record taken at another track.

78. Woodbine receives some 3800 stall applications for its 2200 stalls. To accept Mr. Schickedanz’s application would leave the Commission open to an appeal to any person who did not receive their respective full stall request. Surely the regulator should not be involved in that business aspect of a track’s operations.

79. The intent of interim relief is to assist when the scheduling of a hearing date becomes problematic. That situation was not present given the scheduling of the hearing in advance of the final investigation by the Commission Administration, thereby granting the appellant a measure of interim relief. The granting of such relief in the past has been directed for specific horses eligible for specific “stakes” races. No evidence was led that this was the case and Mr. Schickedanz has other venues where he can and does race his horses.

80. The appellant’s own testimony confirms that he took an active part in the decision of June 26, 2010, to send WAKE AT NOON to Woodbine to “breeze”. Both owners and trainers are held accountable for the safety and welfare of their horses. As the ultimate admitted decision maker, Mr. Schickedanz is responsible for the breakdown of his horse. His age may or may not have been a factor but surely based on his past history, this horse as any other horse should have been thoroughly examined before being put back into race training.

81. It may have been a misstep but no evidence was led as to him or any of his employees taking any possible precautionary action to ensure that the horse was fit and sound. Dr. de Gannes testified that he would not work a horse before examining it and watching it go. Mr. Marino’s looking over the horse is a far cry from that and when coupled with the fact he knew little about the horse, it gives rise to the conclusion he was hired by Mr. Schickedanz to primarily facilitate the appellant’s ability to ship horses from his farm into Woodbine to train. Supporting this conclusion is that Mr. Marino’s involvement was passive as he supplied neither rider, nor supporting cast.

82. Race horses just as all horses have rights. In this case, in addition to owners and trainers, racing horses rely out of necessity on regulators and tracks to protect their respective health and welfare to the extent possible. This Commission, as a recognized leader in this area, has enacted rules such as owner responsibility to help ensure horses are protected. It has also delegated responsibility to tracks to ensure they comply and do their part in this important area such a track standards and mandatory veterinary inspection before racing.

83. Mr. Schickedanz, as per Mr. Martin’s undisputed testimony, did not assure him that if similar circumstances arose, he would not follow the same course of action. While Mr. Schickedanz testified that no decision about a return to racing had been made his contact with his Mountaineer Park trainer about WAKE AT NOON racing there clearly demonstrates that was in the works, all things being equal. In other words, economic return appears to trump health and welfare.

84. Schickedanz proclaimed his love for the horse. Implicit therein would seem to be a motivation to protect and preserve it. Monetary consideration posed a conflicting motivation.

“I was spending money on the horse and I was researching what the possible options could be.” “No decision had been made on any of those options.”

“Q. And when you say you were spending money on the horse I take it that if he was racing you were hoping to get some of that back?

A. I think anybody would be thinking that if they were doing it. Is that a bad thing by the way?”

85. Monetary considerations overcame emotion. The horse was set on a course which if successful would lead to a return to racing.

86. The horse technically entered the grounds legally via Woodbine’s “in slip” process. What is material is the manner in which it was accomplished as it relates to the convoluted non-communication by the Schickedanz team when coupled with the fact that the horse was not eligible to race at Woodbine and in WEG’s purview, should not have been at the track under its rules. These matters opened the door to questions that unfortunately became relevant because of the tragic demise on the track. Once the decision was made on June 26, 2010, to send the horse to Woodbine, it is reasonable to ask why was the horse’s name not provided with the other horses going with him?

87. In summary that this conduct was grievously contrary to the public interest in racing has been demonstrated by powerful and uncontradicted evidence to the standard identified in F.H. v McDougall 2008 SCC 53, 2008 3 SCR 41 Paragraph 49.

88. In the public interest, a high standard of care for horses must be enforced and visibly so. That public interest extends to the quality of the racing product and to the treatment of the horses producing that product. The public relies and can count on receiving quality of, from and about WEG not only in its racing but in its care and support of matters necessarily incidental to racing. That standard is on all fours with the public interest. That public interest is best served by swift unmistakable denunciation. Elements of general and specific deterrence are necessary for protection of that public interest. Given Mr. Schickedanz’s inflexible denial of wrong doing, the need for specific deterrence is ongoing.

89. The indefinite term of the WEG suspension requires consideration. WEG without knowledge, consent or participation in the occurrence has become involved in its aftermath. WEG concluded this conduct was beyond its rules and tolerance. The public has a powerful interest in protection of the well being of racing and thereby in the care and treatment of racehorses. Schickedanz is free to perceive these events as he may. The consequences of that perception become his responsibility. Schickedanz contends that he has done nothing wrong. With that mindset, there can be neither remorse nor rehabilitation. Until there is understanding of the nature of the wrong doing there can be no assurance against an equally serious, although factually different, misadventure. WEG’s position is that Schickedanz must come to realization of his wrong doing. In order to protect itself in the interval, WEG resorted to a mechanism that may otherwise have been an inappropriate penalty – an indefinite suspension.

90. Schickedanz’s conduct was in breach of WEG Rules 1.1 and 3.6.

91. No basis for intervention by the Ontario Racing Commission has been made out. At some stage, review of the continuing indefinite element of the suspension may be appropriate.

92. A mid-Hearing application for interim relief staying WEG’s suspension was made. Failure to establish grounds of irreparable harm and balance of convenience led to dismissal of the application. That there was a triable issue was not contested. That the application was made mid-Hearing was unusual and rendered the relief sought unlikely.

93. The appeal requesting ORC intervention is dismissed.

DATED this 6^th day of October 2010.

Rod Seiling

Chair

James M. Donnelly

Vice Chair

John W. Macdonald

Commissioner