Whelan Wins Case Against ORC, WEG

In a ruling issued on June 30, 2010 by the Ontario Superior Court of Justice, a panel of three judges has ruled in favour of horseman Jim Whelan whose entries had been denied at Mohawk Racetrack

after he failed to sign the 2008 Application for Access Rights of Woodbine Entertainment Group.

The Honourable Mr. Justice Maurice Cullity, The Honourable Madam Justice Anne M. Molloy and The Honourable Madam Justice Katherine E. Swinton ruled 2-1 in favour of Whelan. Each side issued reasons for judgment, with Cullity and Molloy stating that "it is not reasonable for WEG to exclude those who refuse to sign an agreement containing terms that purport to give WEG powers beyond what it legally possesses."

The conclusion of the judgment in favour of Whelan is as follows.

I have found in WEG's favour on most of the issues raised. WEG is entitled to insist on an executed Access Agreement both for those who seek admission to its Property and trainers or owners who seek to have their horses admitted there. WEG is also entitled to insist upon an executed waiver of liability and indemnity, as part of its private property owner rights. The ORC's decision on these points is unassailable. Further, there is no problem with the ORC declining to interfere with the requirement of an agreement to revenue sharing. That is a matter for the CPMA. However, the ORC acted unreasonably by permitting WEG to insist on a signed Access Agreement containing provisions that purport to give WEG absolute unfettered power to exclude licensed ORC horse racing participants who have committed no fault.

That does not mean that WEG is not entitled to require that an Access Agreement be signed by those who use its facilities. Many portions of the agreement are not problematic, as I have referred to above, and as is largely conceded by Mr. Whelan. It is not necessary for WEG to have a signed agreement from owners and trainers before it can enforce its track rules, and it is not reasonable for WEG to exclude those who refuse to sign an agreement containing terms that purport to give WEG powers beyond what it legally possesses.

It may be that wording can be found that would preserve the rights of licensees while at the same time asserting WEG's rights as private property owner. Perhaps there could be language stipulating that the agreement shall not be construed as a waiver of any rights to procedural fairness or natural justice, nor any rights of licensees under the ORC's governing legislation. Perhaps it could stipulate that rights granted under the agreement are subject to the supervision of the ORC in the public interest. These suggestions are merely that — suggestions. I do not purport to approve any particular formula or wording, but merely to leave open the option of the ORC revisiting this issue if the agreement is amended in some way to address the concerns I have identified.

Until such time, it is not reasonable to require Mr. Whelan to execute the Access Agreement as a condition to racing at WEG tracks. The decision of the ORC is set aside and an Order shall issue prohibiting WEG from excluding Mr. Whelan's horses from racing solely on the basis that Mr. Whelan has not signed the current version of the Access Agreement.

If costs cannot be agreed upon between the parties, written submissions may be addressed to the court within 30 days of the release of these Reasons.

Signed,
The Honourable Madam Justice Anne M. Molloy
The Honourable Mr. Justice Maurice Cullity

To view the full 24-page ruling, click here.