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ORC Rules On Smith Appeal


Published: January 26, 2010 4:52 pm ET

Last Comment: February 1, 2010 8:17 am ET | 13 Comment(s) | Jump to Comments

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.

IN THE MATTER OF - Bert Smith (Y00532) vs. Woodbine Entertainment Group

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.

• Judges’ office at Woodbine Racetrack.

• 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.


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.

February 1, 2010 - 8:17 amThis, to me, is a ridiculous

Maury Ezra SAID...

This, to me, is a ridiculous precedent. Horses do bounce. It is part of racing, and part of handicapping. There are many reasons for a horse running a great race and many reasons for a horse running a clunker. It is a fact of racing. Is Woodbine now going to refuse entries of every horse that bounces now? I see major problems with them defining an unacceptable bounce too. The more I type about it, the more insane I feel this ruling is.

January 29, 2010 - 3:31 pmEveryone has a bad day even

Everyone has a bad day even a horse can!!! Would have to totally agree with "Bernie".

As a bettor I would quickly look at the performances shown in the program if he had a win then a loss then a win then a loss -- you can see a pattern quickly and avoid the bet.
By the statements being made that could also, mean that my favourite grey ADMIRALS EXPRESS wouldn't be welcomed at Woodbine or Mohawk. Which is such a shame as those are the 2 tracks closest to me that I could see him race live.

Marie Stoyles-Moura

January 29, 2010 - 1:32 amI'll admit I would have been

I'll admit I would have been cursing Sunday afternoon if I had of been at Woodbine and watched Casanova Killean romp with my head up my... and my hands in my pockets. The thing just jogged in :57 at Georgian two back after galloping for the first 1/8.
Gambling tip from someone who has lost enough dough betting the ponies; if a horse or a race is really puzzling and makes you feel uneasy - turn the page.

January 28, 2010 - 9:57 amMr. Davis why are you so

jarvis rich SAID...

Mr. Davis why are you so cynical? I do not know Bert Smith personally but I am almost positive he bet that horse the day he won by and the day the horse lost. I also don't know Dave Menary personally but I am pretty sure he makes his money in this business on training bills and his 5% on purse earnings and not at the betting windows. The problems that have arisen in this industry were here long before Bert Smith and Dave Menary came on the scene. This whole bouncing idea is a debate for another time and is more of an excuse than a true reason. Many horses do not race well out of retention. Maybe the routine Dave Menary has with a classy old horse like this does not work well under detention restrictions and the horse was also up 23k in claiming class. There are many many many factors in play and the least of which is the trainer and the owner. I think W.E.G maybe jumped the gun on this one.

January 28, 2010 - 9:36 amSometimes we cant see the

Shawn Murphy SAID...

Sometimes we cant see the forest through the trees. This is not a bounce, thoroughbreds bounce the odd time, they are different animals. The bettors see this type of thing and throw the program in the garbage and gets in their car and drives home cursing. This horse on Sunday afternoon made me exactly that, raced 8 times previously, never hit the board them boom,
7 Casanova Killean 7 1/2Q 1/3 2/Q 2/Q 1/H 1:55.2 28.3 Ma Macdonald 26.65

I realize that this is a game of chance, horses wake up one morning feeling better than they did the day before, but with a complete reversal of form someone has to look into it.Good for WEG.

January 27, 2010 - 10:14 pmStandardbreds(and apparently

Standardbreds(and apparently T-breds as well,) can race like a bear one week and then a mut the next; and for many reasons other than sickness. This should not be a shock to any of us - gamblers or trainers. With a long, well documented history of "bouncing' this horse and others like it should be a "red flag" to gamblers (be careful). After all wagering on horse racing, although weakly based on a quasi-science (handicapping), is still a risk based activity. With the attention this particular horse has garnered by being barred, I think WEG will have to implement this rule quite frequently in the future. If WEG consistently and impartially denies entries of "bouncing" horses, the "B track" boxes should be more full than ever.

January 27, 2010 - 2:44 pmIf the horse has followed a

If the horse has followed a win with a poor performance 18 times, a handicapper who doesn't see the pattern deserves to lose his money. If this is the case (and I haven't seen the horse's racelines) this is a classic bounce pattern. To protect the public from losing their money on a horse like this, teaching them to read the program would be a more logical approach. Also, its "Bernie" not Barry.

January 27, 2010 - 1:54 pmI agree whole heartedly with

Dan Davis SAID...

I agree whole heartedly with WEG! Way to Go for trying to save the game! Too bad Kawartha Downs and some other B Tracks wouldn't follow suit in some way. Even if the
Judges continually hound some of these trainers with inconsistencies!
Another big issue from a bettors stand point is what about when the horse you bet is
one of the favourites ....gets away 3rd ....then just past the half gets locked in
(doesn't go first over) then gets shuffled right to last and then again in the lane
follow a wall of horses instead of swinging out wide to at least make the bettor feel
like he had some kind of shot. Nothing worse than seeing a driver running over horses
at the wire!!!Then fellow bettors use that STIFF word!!

January 27, 2010 - 9:06 amWith all due respect to the

Dan Mailman SAID...

With all due respect to the opinion offered by Barry McGarry, that opinion is not supported by the facts. 18 times this horse has followed a win with a poor performance. It doesn't have to be fair to the owner, it should be fair to the wagering public at any cost.

January 26, 2010 - 11:56 pmThe concept of a horse

The concept of a horse "bouncing" is well documented in thoroughbred racing. In general terms a horse is said to have "bounced" when the animal turns in a subpar effort following a peak performance in its previous race. It happens every day at every thoroughbred track and is part of the handicapping puzzle. If every thoroughbred who "bounced" at Woodbine was sent away to develop consistency, the entry box at Fort Erie would overflow.
Given the fact that there was a track variant of 2, no evidence of performance enhancers in the 1:54 mile, and the fact the horse may have been in the early stages of sickness, the 15 length deterioration is explainable. By throwing the owner/trainer/horse under the bus WEG has created suspicion of integrity issues that are not supported by the facts presented.

January 26, 2010 - 11:51 pmI strongly agree with Dan's

Karl Holub SAID...

I strongly agree with Dan's comment and the decision to exclude "Flamewalker" from WEG's entry boxes. An alternative to total exclusion can be resolved in letting the horse enter the race as a non-wagering entity. This way the bettors are protected from tossing away hard earned cash on an out-of-form athlete. The only drawback I see with this angle is that the non-wagerable starter can change the entire complexion of the race, by being considered "road trouble" to the pari-mutuel horses entered. Take the exiled horse and race it back into shape away from WEG, return with heads held high, and race your horse with dignity restored.

January 26, 2010 - 6:37 pmA good policy now WEG lets

A good policy now WEG lets apply it to all!!

January 26, 2010 - 6:19 pmW.E.G. is in the enviable

Dan Mailman SAID...

W.E.G. is in the enviable position of leader in North American racing. Their priority, however guarded, is to protect the interests of the betting public. Harness racing is leaking badly when it comes to live gamblers on site at most tracks. From a gamblers perspective there can be no worse feeling than to realize you have wagered on a dead horse with no shot as the race unfolds. Horses are athletes and as such, can and do have bad days. The betting public can rarely sympathize with that reality when their hard earned cash has just turned into worthless paper. I can understand the basis for Mr. Smith's appeal and have respect for the process that led to the decision by judges to deny this appeal. Let Flamewalker race away from W.E.G. and prove he deserves another shot on the tougher circuit. But another good race, bad race performance like the events that led to this appeal, should mean he does not return to the big track. Congratulations to W.E.G. for protecting the integrity of harness racing on Canada's largest stage.

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