Reasons for Judgment
Court and Parties
Court File No.: CV-23-00014573-0000
Date: 2025-05-01
Ontario Superior Court of Justice
Between:
Howard Walton operating as Norseman Racing Stable, Plaintiff
Counsel for the Plaintiff: S. Wagman
-and-
Fort Erie Live Racing Consortium, Defendant
Counsel for the Defendant: D. Thomas
Heard: April 1-2, 2025, at St. Catharines
Justice: J. R. Henderson
Introduction
[1] The plaintiff brings this action against the defendant, Fort Erie Live Racing Consortium (“Fort Erie”), for damages arising out of the alleged negligence of Fort Erie in assigning a carry weight to the plaintiff’s horse, One Bay Hemingway (“Hemingway”), for the Lake Erie Stakes race that was hosted by Fort Erie on September 12, 2023.
[2] At the trial, the parties agreed that the correct carry weight for Hemingway for this race was 120 pounds. In its draft racing documents, Fort Erie initially assigned a carry weight of 120 pounds to Hemingway, but when Fort Erie prepared its final racing documents, Fort Erie staff reconsidered the matter and assigned Hemingway a carry weight of 118 pounds.
[3] Racing with a 118-pound carry weight, Hemingway won the Lake Erie Stakes race. However, a protest was filed by a competitor. The Alcohol and Gaming Commission of Ontario (“AGCO”) heard the protest and determined that Hemingway did not carry at least his correct carry weight. Therefore, Hemingway was disqualified.
[4] If Hemingway had raced with the correct carry weight and won the race, the plaintiff would have received a total of $75,000, being $60,000 as the first-place winner and $15,000 as the breeder.
[5] The plaintiff’s case against Fort Erie is founded in negligence. Fort Erie submits that it did not owe a duty of care to the plaintiff in its capacity as a racetrack operator. In the alternative, if a duty of care existed, Fort Erie submits that it did not breach the standard of care. Further, if Fort Erie is found to be negligent, Fort Erie submits that the plaintiff was contributorily negligent as the plaintiff failed to claim a carry weight at the time of entry as required by the Rules of Thoroughbred Racing (the “Rules”), and the plaintiff did not review the final racing documents for correctness.
The Facts
[6] There is no significant dispute with respect to the facts. Hemingway is owned by the plaintiff. All relevant decisions and actions with respect to entering Hemingway in the Lake Erie Stakes race of September 12, 2023 were conducted or directed by Hemingway’s trainer, Sid Attard (“Sid”).
[7] Prior to the close of entries for the race on September 7, 2023, Sid arranged for an agent to place a telephone call to Fort Erie and enter Hemingway in the race. That call was received by a Fort Erie employee who entered Hemingway by inputting information about Hemingway and the plaintiff into a computer software program called InCompass.
[8] InCompass is a program that maintains data with respect to horses that have previously raced at Fort Erie or Woodbine racetracks. When Fort Erie staff inputs an entry for a race, InCompass will auto-generate an “entry sheet.” The entry sheet is an internal Fort Erie document that contains information such as the race date, the horse’s name, the owner, the trainer, and the carry weight. The entry sheet also contains information about past performance that InCompass gathers from Equibase, which is an online horse racing service.
[9] Carry weight is determined by the past performance of a horse. In summary, horses that have not won certain types of races will be entitled to lower carry weights. The carry weights for the Lake Erie Stakes race ranged from 118 pounds to 124 pounds, in two-pound increments.
[10] In this case, InCompass generated a carry weight of 124 pounds for Hemingway, which was the maximum carry weight for this race, as InCompass does not calculate eligibility for reduced carry weights for stakes races. Thus, the computer-generated entry sheet showed a carry weight of 124 pounds for Hemingway.
[11] The entry sheet that had been generated by InCompass was given to Tara Stenson (“Tara”), a data eligibility clerk for Fort Erie. After reviewing Hemingway’s past performance, Tara manually changed the entry sheet to show a carry weight for Hemingway of 120 pounds.
[12] Subsequently, on September 7, 2023, a draw was conducted to determine which races would proceed, the horses in the races, the jockeys, and the post positions.
[13] After the draw had been conducted, and Tara had manually changed Hemingway’s carry weight on the entry sheet, the updated information was entered into InCompass. InCompass then generated an “overnight sheet.” The overnight sheet is a draft document that contains relevant information about the race, including the horses, the owners, the post positions, and the carry weights. At the same time, Fort Erie’s office administrator created a draft Fort Erie Racing program.
[14] On September 7, 2023, the overnight sheet was sent by email to a list of owners and trainers that frequent the Fort Erie racetrack. The overnight sheet was also uploaded to the Equibase website, where it was available to any interested party. I find that the overnight sheet that was distributed on September 7, 2023 showed the carry weight for Hemingway to be 120 pounds.
[15] Sid testified, and I accept, that he saw a copy of this overnight sheet on September 7, 2023, and he was satisfied that the carry weight was correct at 120 pounds. I also accept his evidence that he was aware that the overnight sheet was a draft document that was commonly changed.
[16] Thereafter, on September 8, 2023, both Tara and Jackie Eder (“Jackie”), the racing secretary for Fort Erie, independently reviewed the overnight sheet, the draft Fort Erie Racing program, and the InCompass information regarding past performance (from Equibase). Tara and Jackie noted that Hemingway had previously won four races at Woodbine racetrack, but they observed that each of the races was denoted with an “N” code. They both testified that the “N” code meant that the race did not count against the carry weight. Therefore, they were both of the opinion that Hemingway’s carry weight should be changed to 118 pounds, which was the most beneficial carry weight available for this race.
[17] Jackie and Tara then provided all of the required changes to the draft program, including the change to Hemingway’s carry weight, to the office administrator, who in turn made the changes to the draft Fort Erie Racing program.
[18] On September 8, 2023, the final version of the Fort Erie Racing program for the Lake Erie Stakes race was prepared for publication. Hardcopies of the final version of the Fort Erie Racing program were printed and made available for purchase at the racetrack as of September 9, 2023. A condensed version of the racing program, called the “Pocket Program”, was also published and hard copies were available for free at the racetrack as of September 9, 2023. A digital version of the Pocket Program was uploaded to the Fort Erie website and was available for free online as of September 8, 2023. The final version of the Fort Erie Racing program, the Pocket Program, and the digital version of the Pocket Program all showed Hemingway with a carry weight of 118 pounds.
[19] At approximately the same time, another entity was producing a publication known as the Daily Racing Form (“DRF”). Fort Erie is not associated with the DRF, but it is clear that much of the information in the DRF comes from the Fort Erie website.
[20] On September 7, 2023, a draft DRF was published showing Hemingway as a horse in the second race at Fort Erie on September 12, 2023, with a carry weight of 120 pounds. That DRF was obviously a draft document as it did not include post positions or odds. A final version of the DRF was published prior to the race. It showed Hemingway with an assigned carry weight of 118 pounds. That final version was available to the public for sale or by subscription.
[21] Sid testified that he read the draft DRF, but Sid was vague as to when he read it. Considering that the draft and final versions of the DRF were derived from information on the Fort Erie website, I find that Sid would have read the draft DRF between September 7 and September 9. I find that the final version of the DRF would have replaced the draft version as of approximately September 9.
[22] Therefore, in summary, I find that Sid read the overnight sheet on approximately September 7, and that he also read the draft DRF between September 7 and September 9. Both of those documents showed that Hemingway had an assigned carry weight of 120 pounds. Sid knew that the carry weight of 120 pounds was correct. Sid however did not check the final DRF or the final Fort Erie Racing program or the Pocket Program to determine whether any changes had been made prior to the race. If he had done so, he would have noticed that Hemingway’s carry weight had been changed to 118 pounds.
[23] Hemingway won the race on September 12, 2023. A protest was filed. The AGCO governs the procedure for a protest and/or complaint with respect to any thoroughbred race. In a written decision dated September 21, 2023, the AGCO found that Hemingway failed to carry at least his correct carry weight over the entire distance of the race. Hemingway was accordingly disqualified.
Does Fort Erie Owe a Duty of Care?
[24] The plaintiff submits that Fort Erie invited horse owners to enter horse races hosted by Fort Erie. Accordingly, the plaintiff submits that Fort Erie owed a common law duty of care to the horse owners to ensure that all of the horses competed with the correct carry weights.
[25] Fort Erie submits that there is no established common law duty of care owed by a racetrack operator to a horse owner. Further, Fort Erie submits that the plaintiff is unable to prove that a new category imposing a duty of care should be recognized as the respective duties of horse owners and racetrack operators are fully covered by statutory provision.
[26] It is acknowledged that the plaintiff, as a horse owner, and Fort Erie, as a licensed racetrack operator, are regulated by the AGCO. Section 2 of the Horse Racing Licence Act, 2015, SO 2015, c 38 (the “HRLA”), gives the AGCO the power to govern, direct, control and regulate horse racing in Ontario. Pursuant to the HRLA, the AGCO has made and implemented the Rules.
[27] Rule 8.02 states:
The owner or trainer shall claim all weight allowances at the time of entry and the claimant shall be held responsible should a horse be started carrying an incorrect weight. If as a result of carrying too little weight a horse is disqualified, the owner or trainer claiming such weight shall be held responsible.
[28] I accept that rule 8.02 places a statutory duty on the owner and trainer of a horse. It does not, however, state that a racetrack operator is exempt from liability, nor does it define the duty, if any, of a racetrack operator. The rule covers the responsibility for carrying an incorrect carry weight in respect of a horse race, but it does not specifically deal with the relationship between a horse owner and a racetrack operator. Thus, it is open to this court in this case to find that there exists a common law duty of care owed by Fort Erie to horse owners whose horses compete at the Fort Erie racetrack.
[29] The modern starting point for an analysis of whether a duty of care exists in law is the two-step test in Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), a case that was adopted and clarified in Canada in Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, at paras. 21-39. That test has been considered in relation to an alleged negligent police investigation in Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, at paras. 20-65, an alleged negligent audit of financial statements in Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, [2017] 2 S.C.R. 855, at paras. 23-45, and the alleged negligence of an investment fund manager in Wright v. Horizons ETFS Management (Canada) Inc., 2020 ONCA 337, at paras. 77-90.
[30] In summary, the two-step process for proving the existence of a common law duty of care is as follows:
The plaintiff must establish that there was sufficient proximity in the relationship between the parties such that the harm to the plaintiff was a reasonably foreseeable consequence of the defendant’s actions, and
If (1) is established, the court must consider whether there are any residual policy reasons that would negate the imposition of a duty of care or limit the scope of the duty.
[31] Regarding the first step in the process, the court must first decide whether there are analogous categories of cases in which sufficient proximity has been previously identified. In the present case, neither party submitted that the relationship between a horse owner and a racetrack operator fits within an existing or analogous common law duty of care. Accordingly, this court must decide whether a new a duty of care should be recognized in these novel circumstances: see Cooper, at paras. 31-36.
[32] At this step, the nature of the relationship between the parties and the foreseeability of harm must be considered together. The onus is on the plaintiff to satisfy the court that the defendant ought to have had the plaintiff in mind as a person potentially harmed by the defendant’s conduct: see Cooper, at para. 32, Hill, at para. 29, Wright, at para. 87, and Livent, at paras. 29-34.
[33] In this case, I find that there is sufficient proximity between a horse owner and a racetrack operator to justify a duty of care. I accept that there is an obligation on the owner of the horse to inform the racetrack operator of the correct carry weight, but I reject the defendant’s submission that there is no reciprocal obligation on the racetrack operator. Once the owner/trainer enters a horse race and claims a carry weight, the racetrack operator must still exercise reasonable care to process the entry.
[34] I find that both racehorse owners and racetrack operators financially depend upon the existence of fair competitive horse races. A racehorse owner relies upon the careful processing of the entries by the racetrack operator so that the horses will be afforded the opportunity of running in a fair race. Furthermore, I accept that misconduct by a racetrack operator could cause harm to a racehorse owner. That is, it is reasonably foreseeable that negligence by a racetrack operator could result in an unfair advantage for one horse over another and thereby cause financial harm to the disadvantaged horse owner.
[35] Regarding the second step, I find that there are no residual policy reasons that would negate or limit the imposition of a duty of care on a racetrack operator. I reject the defendant’s submission that the Rules provide a sufficient alternate remedy; there is no remedy in the Rules for negligence by a racetrack operator. I also reject the submission that imposing a common law duty on racetrack operators will open the floodgates to an excessive amount of litigation.
[36] Therefore, I find that there is a common law duty on a racetrack operator to exercise reasonable care in the processing of horse race entries with a view to holding a fair competitive race. This duty includes an obligation to take reasonable care in assigning carry weights to all horses in a race.
Negligence of Fort Erie
[37] In cases in which it is alleged that the defendant made a negligent decision, the standard of care is that of a reasonable person, judged in the circumstances prevailing at the time the decision was made. The defendant is not held to the standard of perfection. The defendant is not to be judged from the vantage of hindsight. Moreover, “minor errors” or mere “errors in judgment” that any reasonable person might have made do not, on their own, breach the standard of care: see Hill, at para. 73, Aylmer Meat Packers Inc. v. Ontario, 2022 ONCA 579, at para. 63, and Dhillon v. City of Cambridge, 2021 ONSC 7385, at paras. 53-54.
[38] Therefore, in this case, the question is whether Jackie and Tara exercised reasonable care in making their decision as to the carry weight for Hemingway, judged in the context of the information that was available and the prevailing circumstances at the time.
[39] The evidence shows that Jackie and Tara were both experienced in the field of horseracing. They have both worked in or around the Fort Erie racetrack for many years, and they were both familiar with eligibility requirements and the manner in which carry weights are assigned.
[40] I find that Fort Erie had a reasonable administrative system in place for processing race entries. The intake staff at Fort Erie would obtain information for each entry from the owner/trainer and would use the InCompass software program to generate additional detailed information about the horse, the owner, past performances, and carry weight. A draft document is circulated to interested parties for their review, and later is reconsidered by Fort Erie staff persons. The final racing program is finalized a few days before the race and is made available for review.
[41] An important consideration in determining whether Jackie and Tara breached the requisite standard of care is the fact that the plaintiff breached his obligation to claim a carry weight for Hemingway at the time of entry. Sid testified that he was aware that the correct carry weight was 120 pounds, and that he so informed his agent. However, I find that the agent did not inform Fort Erie of the correct carry weight, or any carry weight.
[42] The Rules place the onus on the owner and trainer to ensure that the horse ran with the proper carry weight. The first part of rule 8.02 reads: “The owner or trainer shall claim all weight allowances at the time of entry and the claimant shall be held responsible should a horse be started carrying an incorrect weight.” (emphasis added)
[43] The plaintiff’s breach of rule 8.02 made the job of Fort Erie staff more difficult. If the plaintiff had claimed a carry weight at the time of entry, as per the Rules, Jackie and Tara could have considered that information conjunctively with the information about past performance that was available through InCompass. In my opinion, the reasonableness of Jackie and Tara’s actions must be assessed in light of the fact that they were attempting to assign a carry weight to Hemingway without any carry weight information from the plaintiff and in the face of the plaintiff’s breach of the Rules.
[44] Another circumstance for consideration is the fact that Hemingway had raced primarily at Woodbine racetrack. The InCompass information showed that Hemingway had previously won four races at Woodbine. Jackie and Tara work at Fort Erie and were less familiar with the Woodbine races. Therefore, in assigning a carry weight to Hemingway, Jackie and Tara relied heavily on the InCompass information, obtained from Equibase, about Hemingway’s past performance.
[45] In these circumstances, based on the available information, did Jackie and Tara exercise reasonable care in making their decision to assign a carry weight of 118 pounds to Hemingway?
[46] The onus is on the plaintiff to prove that the defendant breached the standard of care. In this case, there is no evidence that a reasonable person using reasonable care in the circumstances, absent carry weight information from the owner/trainer, would have looked at the past performance record set out in InCompass and decided that the carry weight should be anything other than 118 pounds. In fact, the evidence is the exact opposite.
[47] The only witnesses who testified as to how to interpret the past performance information in InCompass were Jackie and Tara. They both deposed that they reviewed the InCompass information and noted that all four of Hemingway’s previous wins at Woodbine were coded with an “N”. Both Jackie and Tara testified that the “N” code meant that Hemingway ran in the restricted portion of the races, and therefore the wins did not count against carry weight. Neither witness changed their testimony about the “N” code.
[48] In her affidavit, Jackie deposed that, after the disqualification, she learned there was a rule created by Woodbine, and used only by Woodbine, that a winning performance by a horse in a Woodbine race that had an “N” code will still count against carry weight if the purse for that race is an amount other than $40,000. Jackie was told that this Woodbine exception applied to one of Hemingway’s past wins at Woodbine, and therefore that race counted against carry weight. This meant that Hemingway should have raced with a carry weight of 120 pounds.
[49] In cross-examination, Jackie agreed that she was not as familiar with Woodbine racetrack and that she was unaware of this Woodbine exception at the time she determined Hemingway’s carry weight. She repeated that she relied on the InCompass information that showed an “N” code for all of Hemingway’s prior wins at Woodbine. She knew, from her experience, that this code meant that the wins did not count against carry weight.
[50] Tara did not mention the Woodbine exception in her affidavit, but in cross-examination, Tara agreed with plaintiff’s counsel’s suggestion that she had been told that the “N” code did not apply to one of the prior wins because it was a claiming race. I assume that was a reference to the Woodbine exception that was discussed by Jackie. Tara repeated that, from her experience, the “N” code meant that the wins did not count against carry weight.
[51] Significantly, I have no evidence as to whether Jackie and Tara should have been aware of the Woodbine exception at the time of their decision, or if information about the Woodbine exception was readily available to them. They were never asked how they became aware of this exception to the “N” code rule, and no other witness testified on the point. Who told them about this exception? Was there a manual or an instruction sheet for persons who use the past performance information in InCompass? Did it include a reference to the Woodbine exception? Was it available to them at the time they assigned Hemingway’s carry weight? Should Hemingway’s past wins have been coded differently? These questions were never addressed in the evidence at trial.
[52] The plaintiff relies on the fact that the AGCO found that Hemingway did not carry the correct carry weight. However, the AGCO did not make any finding as to Hemingway’s correct carry weight and did not explain how it came to its conclusion. It is very possible that the AGCO had access to information that was not available to Jackie and Tara. I accept that the AGCO decision confirms that the carry weight of 118 pounds is not correct, but it does not address the question of whether Jackie and Tara made a reasonable decision regarding carry weight based on the information they had at the time.
[53] In summary, I have two witnesses who testified that the “N” code meant that the past wins did not count against carry weight, and I have speculation as to why the AGCO found that one of the past wins counted against carry weight. If the AGCO relied on the Woodbine exception to disqualify Hemingway, I have no evidence that Jackie and Tara should have been aware of this Woodbine exception at the time of their decision.
[54] I have carefully reviewed the InCompass information regarding past performance that was introduced at the trial. It consists of one line for each of Hemingway’s previous four wins. Each line clearly shows a date, the racetrack, and the purse. The balance of each line consists of a string of numbers and letters that would only be decipherable by someone in the racing industry. Each line ends with an “N”. I have no clear evidence that a reasonable interpretation of this string of numbers and letters, ending in an “N”, was anything other than the interpretation made by Jackie and Tara.
[55] The only remaining question is whether Jackie and Tara should have made further inquiries about how to interpret Hemingway’s previous wins at Woodbine.
[56] In my opinion, it would be exhaustive and time consuming if they were required to engage in a detailed investigation for every horse, in every race, to determine whether their information was complete, whether it was accurate, and whether it was coded correctly. The Fort Erie system will only work if Jackie and Tara are able to rely, in most cases, on the information provided by the owner/trainer and through InCompass. I find that Fort Erie staff are entitled to rely on a reasonable interpretation of the information obtained through InCompass, unless there is conflicting information or there is something about the available information that is ambiguous or unclear, such that further investigation is needed.
[57] I find that there was nothing ambiguous or unclear in the InCompass information that should have prompted Jackie and Tara to check with the AGCO or Woodbine to clarify how Hemingway’s past wins affected carry weight. Also, Jackie and Tara had no carry weight information at all from the plaintiff, and therefore there was no inconsistency between the plaintiff’s view of the carry weight and the InCompass information.
[58] In conclusion, I find that the onus is on the plaintiff to show that the defendant breached the standard of care, that the plaintiff put the defendant in a difficult position by not claiming a carry weight at the time of entry, that Jackie and Tara were compelled to rely on the InCompass past performance information, that the only clear evidence about the InCompass past performance information is that the “N” code meant that Hemingway’s past wins did not count against carry weight, and that there is an absence of evidence as to whether Jackie and Tara should have been aware of an exception to the “N” code rule at the relevant time. Therefore, I find that the plaintiff has not proved that Jackie and Tara failed to exercise reasonable care in making their decision as to the carry weight for Hemingway.
[59] For these reasons, I find that there was no breach of the standard of care by Fort Erie, and that Fort Erie was not negligent.
Negligence of the Plaintiff
[60] Given my findings that Fort Erie was not negligent, there is no need to consider the possible contributory negligence of the plaintiff. However, if I am incorrect and there was negligence on the part of Fort Erie, I find that the plaintiff was also negligent in two ways.
[61] First, as discussed, the plaintiff failed to inform Fort Erie of the correct carry weight, or any carry weight, at the time of the entry. I repeat that rule 8.02 states: “The owner or trainer shall claim all weight allowances at the time of entry and the claimant shall be held responsible should a horse be started carrying an incorrect weight.” Sid knew that 120 pounds was the correct carry weight and informed his agent of that fact, but the agent never conveyed that information to Fort Erie. That failure constitutes negligence by the plaintiff.
[62] Second, although the plaintiff checked the draft overnight sheet, and read a draft version of the DRF, the plaintiff failed to check the final versions of the racing documents to determine whether any changes had been made prior to the race. The plaintiff knew that changes were commonly made to the draft documents, and the plaintiff had access to the final Fort Erie Racing program and the Pocket Program both online and in hard copy by at least September 9, 2023. The failure to check the final racing documents for correctness also constitutes negligence by the plaintiff.
Conclusion
[63] In conclusion, I find that Fort Erie, as a racetrack operator, owes a common law duty of care to racehorse owners whose horses enter races at the Fort Erie racetrack. However, I find that, in this case, Fort Erie did not breach the requisite standard of care. There was no negligence on the part of the defendant. The plaintiff’s case is dismissed.
[64] Regarding damages, neither party raised a causation issue. If I had found liability on the defendant, I would have ordered a continuation of the trial on the quantum of damages.
[65] If either party wishes to make submissions as to costs, I direct that the party seeking relief shall deliver written submissions, no longer than five pages, to the Judicial Assistants at: St.Catharines.SCJJA@ontario.ca within 20 days of the release of this decision, with responding submissions to be delivered within 10 days thereafter. If no submissions are received within this timeframe, the parties will be deemed to have settled all of the costs issues as between themselves.
__________________________
J. R. Henderson
Date Released: May 1, 2025