Ontario Racing Commission Administration v. Ontario Harness Horse Association (OHHA), 2011 CanLII 100429

RULING NUMBER COM GEN 001/2011

COMMISSION HEARING TORONTO, ONTARIO – JANUARY 5, 2011

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

ONTARIO HARNESS HORSE ASSOCIATION (OHHA)

The Ontario Harness Horse Association (“OHHA”) appealed the Director’s decision of December 10, 2010, with respect to the Ontario Racing Program 2011. By way of Notice of Motion, the ORC Administration sought to have the appeal filed by OHHA dismissed arguing that the Panel lacked the jurisdiction to reverse the Commission’s Policy Decision on the Framework.

On January 5, 2011, a Panel of the Ontario Racing Commission consisting of Chair Rod Seiling, Vice-Chair James Donnelly and Commissioner John Macdonald was convened to hear the Motion.

Maureen Harquail appeared as Counsel for the Administration and Andrew Finkelstein appeared as Counsel for OHHA.

Upon hearing the evidence of Steven Lehman, Chief Administrative Officer of the ORC and upon reviewing the exhibits filed and upon hearing the submissions of Counsel for the Administration and Counsel for OHHA, and Chris Kruba, the Panel rules as follows:

i) There is no jurisdiction either in totality or substantial result to reverse the Framework as an ORC Policy.

ii) It does have jurisdiction to alter race dates within the Framework.

iii) The Panel therefore has jurisdiction to hear the appeal on the merits, and to grant relief within the Framework.

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

Dated at Toronto this 14th day of January, 2011.

BY ORDER OF THE COMMISSION

John L. Blakney

Executive Director

REASONS FOR DECISION

1. The ORC Administration, upon motion, seeks an Order dismissing OHHA’s appeal from the Ontario Racing Program decision by the Director on December 10, 2010.

2. That appeal framed by OHHA prior to consulting counsel was:

“It is the OHHA position that there should be no change to the Ontario Horse Racing Model and that the moratorium on race dates should be extended for the 2011 racing season until further studies and consultation are complete.”

3. Counsel for OHHA filed an amended Notice of Appeal requesting that the Director’s Order be varied to require certain tracks to provide additional live racing dates in 2011 as follows:

Total Live Race Dates

Woodbine 135 days minimum with winter racing 5 days per week

Mohawk 108 days minimum

Flamboro 225 days minimum through 12 months

Western Fair 130 days minimum

Windsor 111 days minimum

Woodstock 27 days minimum

Dresden 25 days minimum

Georgian 105 days as per the Director’s Order but through 12 months (2 days per week).

4. The amended Notice of Appeal also seeks an Order prohibiting redistribution of purse money among tracks.

5. The Motion proceeded on January 5, 2011. The decision was reserved with the matter returnable before the Panel on January 24, 2011.

6. The issue of late filing was resolved by the Panel at the opening of the Hearing. No such issue remains.

7. The thrust of the Administration submission was that this panel has no jurisdiction to reverse the Commission’s Policy Decision on the Framework, the implementation of which interconnects racing across Ontario. The Administration position as outlined by CAO, Steve Lehman was that substantial alteration of that interdependent structure would precipitate a destructive domino effect on the entire program.

8. In fallback position, the Administration contended that by reason of OHHA’s participation in the development of, and its support for the Framework, OHHA should now be estopped from opposing that Framework or its effect. This submission fails as will be discussed in the reasons to be delivered.

9. In order that the parties may have reasonable opportunity to consider their positions, the decision on the Motion is released now. The opportunity to deliver full reasons on the Motion is reserved; such reasons to be released with the reasons on the substantive issue on the appeals. At this stage, appeals relating to Flamboro, the Northern Horsemen’s Association and Hiawatha, remain to be heard (the Sudbury appeal having been withdrawn).

10. The Director’s decision was in the context of the Framework for race date allocation approved by the ORC Board on September 9, 2010. The rationale for that Framework is summarized in the opening paragraphs of the Director’s Decision under the rubric, “Overview” and need not be repeated here.

11. The background leading to the Framework is reviewed in the November 29, 2010 Notice to the Industry (Exhibit 1, tab 6). That notice is appended to these Reasons to demonstrate:

• The exhaustive and extensive collaborative consultation and planning process leading up to the Framework.
• The goals identified through that process.
• The scope and industry-wide effect of the inter-dependent schedule

12. As communicated to the industry by “Notice” November 29, 2010, the Framework:

“Is being used for the first time to set standardbred race dates. It is acknowledged that this is an initial step in the continuing process of consultation and collaboration with the racing industry.”

13. Implicit in that Framework is the right of the Director to assign race dates and undoubtedly to revise as inequities within the Framework may be perceived. The Panel having a statutory right of review must have that same jurisdiction.

14. Accordingly, the Panel rules:

• There is no jurisdiction either in totality or substantial result to reverse the Framework as an ORC Policy.
• It does have jurisdiction to alter race dates within the Framework.

15. The Panel therefore has jurisdiction to hear the appeal on the merits, and to grant relief within the Framework.

Dated this 14th day of January 2011.

Rod Seiling

Chair

James M. Donnelly

Vice Chair

John Macdonald

Commissioner

Attachment