ORC Rules On Smith Appeal

On Tuesday, January 26, the Ontario Racing Commission released its ruling on the appeal of Bert Smith, owner of the horse Flamewalker, who has been recently barred from entering to race at Woodbine Racetrack

.

The Woodbine Entertainment Group recently decided to reject the entry of Flamewalker at Woodbine Racetrack due to inconsistent performances.

In turn, Smith filed an appeal with the ORC in regard to the rejection of entry.

On January 22, 2010, the judges rendered their decision and issued ruling SB41282 which stated: “In accordance with ORC rules 1.02, 1.09 and 7.06 the judges hereby deny the appeal of Bert Smith of WEG’s decision and or right to refuse the entry of “Flamewalker” (tattoo 0A119) until such time as he produces at least one race line acceptable to WEG, at another track.”

The ORC's reasons for decision is part of the ruling, which appears below.

On January 15, 2010, judges Don Lawrence, William Maertens and Rick Rier held a hearing at the request of horse owner Bert Smith in order to deal with Mr. Smith’s appeal of Woodbine Entertainment Group’s decision to reject the entry of the horse Flamewalker at Woodbine Racetrack.

Location
• Judges’ office at Woodbine Racetrack.

Time
• 3.30 pm.

• Mr. Bert Smith represented himself along with Dave Menary.

• Mr. Bruce Murray represented WEG.

After hearing the testimony of Mr. Bert Smith and Mr. Bruce Murray the judges reserved their decision.

On January 22, 2010 the judges rendered their decision and issued ruling SB41282 which states: “In accordance with ORC rules 1.02, 1.09 and 7.06 the judges hereby deny the appeal of Bert Smith of WEG’s decision and or right to refuse the entry of “Flamewalker” (tattoo 0A119) until such time as he produces at least one race line acceptable to WEG, at another track.”

Findings of Fact:

• The horse “Flamewalker” is owned by Bert Smith and was trained by Dave Menary
• “Flamewalker” raced at Woodbine Racetrack on Dec. 17, 2009 winning by 91/2 lengths in a time of 1.54.1
• Due to that performance, WEG determined that “Flamewalker” must race out of D barn (retention) if he was to race at Woodbine
• On January 4, 2010 “Flamewalker” raced out of D barn and finished 9th beaten 12 lengths in a time of 1.59. The track variant was 2 seconds
• Due to the poor performance the judges had the ORC vet check the horse. The horse was scoped clean and vet checked O.K.
• Bert Smith and Dave Menary produced blood records from “Flamewalker” taken sometime after the race that suggested the horse was fighting an infection and or sick.
• WEG decided that it was in their best interests not to accept the entry of “Flamewalker” until he raced a minimum of one start at another track, producing a race line acceptable to WEG.
• Bert Smith is appealing WEG's right not to accept the entry of “Flamewalker” a duly qualified horse.
• On occasion WEG has determined that a horse must race elsewhere based on a dramatic and or sudden change in performance, inconsistency, and customer comments of dissatisfaction and when it is in WEG’s best interests to do so to protect their customers.
• The race of “Flamewalker” on January 4th, 2010 resulted in the most negative public feedback that Mr. Murray has encountered during the current meet at Woodbine.
• “Flamewalker” was placed in D barn in the hopes of a similar performance to the one of December 17, 2009. That did not take place.
• Retention is a tool that WEG has used many times over the years.
• Catalina Morgan, Charter Flight, Shark Future, Windsong Experanza, Blue Star Outlaw, and Western Silk are examples of horses that won races at WEG tracks and raced poorly in their next start and whose entries were not refused.
• “Flamewalker” has a history of inconsistency, long before Bert Smith owned him. On 18 separate occasions he won a race followed by a poor performance in the very next start.
• Bert Smith contends that WEG is acting against him and not just the horse.
• Bruce Murray states that this is not an issue about “Bert Smith” but rather a horse performance and trainer issue and that it is in the best interests of racing that the horse races elsewhere temporarily as there is so much money bet at Woodbine.
• Bert Smith is currently allowed by WEG to race all other horses he owns meeting eligibility requirements, at Woodbine. “Flamewalker” is the only exception, and that may be temporary.
• Pat Fletcher now trains the horse.

Issues

We are left to deal with two important issues.

• 1) Is this an issue of a horse or an owner?
• 2) Does WEG have the authority or right to refuse an entry that is duly qualified based on inconsistent performance?

The first issue is clear to the judges. It is only the entry of this particular horse that has been refused. Any and all of Mr. Smith's other horses that are qualified for Woodbine have been and continue to be accepted at Woodbine. This is definitely a matter of the horse “Flamewalker.”

The second issue is more complicated and the judges reviewed ORC case law and case history to help guide their decision.

In the cases of Friedman (SB025/2007), Chiaravalle(SB027/2008) and Whelan (SB019/2009) it is important to note that WEG’s exclusion rights were upheld.

In the case of Friedman (SB025/2007) the panel of Rod Seiling, James Donnelly and George Kelly write the following:

“The horse racing industry depends upon wagering for its existence. Wagering in turn is rooted in past performance lines. When horses compete in races their performance is assiduously charted. Those chart lines are offered to the public in race program format.”

The panel also states:

“There is no purpose in sounding the obvious. WEG is the industry leader, a credit to the horse racing community and the Province of Ontario. Exemplary standards are maintained in the integrity of the racing product and its presentation. The right of WEG to conduct its business and protect its investment by producing racing at its highest level must be respected. The private property rights of exclusion and trespass are components of the means by which these objectives are achieved. WEG’s mission of providing premium racing accords with the ORC mandate. Implementation of policies and actions supporting that high purpose and consistent with the statutory obligations of the ORC and the wide general public interest should be supported.”

However the panel does caution that:

“WEG’s authority is not open-ended, there are limits. WEG, in pursuit of its legitimate business goals, may be held to a standard of conduct whereby it must act firstly, reasonably and fairly, and secondly, upon substantial and demonstrable grounds, and thirdly, in a manner compatible with the best interests of racing. WEG’s action, although not dependant upon due process, must be able to withstand a due process review conducted by the ORC.”

In Friedman’s appeal of the ORC decision to the Ontario Superior Court of Justice Divisional Court, Justices K. E Swinton, W.Low, and R.S. Echlin JJ. upheld the ORC decision and of significance to this case is when the Justices comment: “In reaching its decision, the Commission did not abdicate its regulatory mandate, as the applicant suggests. Indeed, in reaching its decision, the Commission considered the public interest, as it is required to do under s. 6 of the Act. It concluded that the property and business rights of WEG and the Commission’s obligation to protect the integrity of racing were on “all fours”, and that the “public interest is overwhelming on the side of the track having the right to take preventative measures in self-defense to protect its racing integrity” That decision was a reasonable one, given the evidence before the Commission, and it is entitled to deference from this Court.”

In the decision of Whelan (SB019 (a)/2009) the Honourable James Donnelly writes:

“WEG markets horse racing at the highest level. Good business practice dictates effective measures must be taken to maintain quality control of its product – horse racing. Damage to that product, sufficient and sustained, poses a threat to WEG’s business on a scale comparable to liability risk exposure. Absent public confidence in racing integrity, there is no market demand for wagering which apart from slots revenue, funds the industry. In consequence, quality control of racing is a high priority”

And Mr. Donnelly references Ontario Court of Appeal Justice Roach who in 1958 wrote:

“One only has to look at the powers granted to the Commission to grasp and understand the wide scope of administrative powers granted to it, all with the manifest intention that the Commission should regulate horse racing as it affects those who participate in it and the public who patronize it, and that as a public sport it shall not be adversely affected by those who participate in it or any odium cast upon it. Morrissey v. ORC 1958 Can LII 20.

In the decision Mr. Donnelly also states:

“Apart from the manna from heaven in the form of slot revenues, racing is funded by the wagering dollar. The vast majority of mutuel handle is a product of some form of handicapping. Handicapping is premised upon analysis of past performance. Past performance may relate alone or in concert to the horse, driver, trainer, owner, breeding, and so on. Inconsistent chart lines reduce the semi-science to a crap shoot. If the public loses confidence in the chart lines, the handicapping basis and with it the wagering dollar leaks out of the bottom.”

It is apparent from the cases that the judges have reviewed that the Ontario Racing Commission acknowledges and respects the high standards of WEG’s product; WEG’s importance to the existence and well being of the Ontario horse racing industry as a whole, and does support the right of WEG to protect its product as long as they do so reasonably and fairly, upon substantial and demonstrable grounds and in a manner that is compatible with the best interests of racing.

By signing WEG’s access agreement, Bert Smith has agreed to WEG’s rules and regulations.

In the case before us, WEG is not banning an owner or an entire stable. WEG is only refusing the entry of one horse, “Flamewalker.” A horse that has clearly demonstrated dramatic inconsistency in its past two starts at Woodbine, and a horse that in its last start caused more negative reaction from the public than any other race since the beginning of the Woodbine meet.

The refusal of this entry is not permanent. The conditions for return have been laid out. The horse has racing opportunities elsewhere at many other tracks in North America.

We do want to commend Mr. Smith for his research and preparedness for this hearing. Some of the examples that Mr. Smith brought forward of other horses that performed poorly subsequent to a large winning performance merit scrutiny. While we are unaware of all of the facts and or public response to these examples and therefore are unable to compare them exactly to this case, we do recommend that WEG conduct an internal review of the cases brought forward by Mr. Smith in order that WEG staff might act as consistently as possible when refusing entries based on performance. As judges we continually review our performance for consistency and we are constantly under review for consistency. Consistency is a critical component of fairness.

While we do accept that “Flamewalker” may very well have been in the early stages of sickness on the evening of January 4, 2010 at Woodbine; he did nonetheless vet check well after the race. Regardless, the best interests of racing must be served.

The judges find the requirement of WEG. for “Flamewalker” to race at other tracks until he produces a line acceptable to WEG a reasonable action considering the circumstances; that it is in the best interests of racing; and that WEG in exercising it’s rights in this case meets the tests as laid out in the case law of the ORC that we reviewed.

In accordance with ORC rule 1.02 which reads: “Standardbred racing shall be conducted in accordance with the rules, Commission directives, conditions of licenses granted by the Director or the Commission, track rules approved by the Director, any other applicable laws and regulations.”; ORC rule 1.09 which reads “ If any case occurs which is not or which is alleged not to be provided for by the rules, it shall be determined by the Judges or the Commission as the case may be, in such manner as they think is in the best interests of racing. Provided however, the Commission in its absolute discretion may waive the breach of any of the rules, which waiver or breach the Commission does not consider prejudicial to the best interests of racing.” And ORC rule 7.06 which reads: “Associations shall post track rules in the paddock and the race office. Track rules approved by the Director may be enforced by the Judges and fines or suspensions imposed.” The judges deny the appeal of Bert Smith.