On June 21, 2002, the Court of Appeal for Ontario, in a unanimous decision, granted the appeal by the Ontario Harness Horse Association (OHHA) against the dismissal of its application for judicial review of a decision by the Ontario Racing Commission refusing to convene a hearing into a racetrack owner’s exclusion of OHHA members from participating in races. This decision, represents a significant change in the law in the horse racing industry, and should allow participants in the industry to seek a remedy from the commission if they consider they have been unfairly prevented from participating in races by track owners.
At issue was the jurisdiction of the regulator, the Ontario Racing Commission, to convene a hearing to consider the propriety of a decision by Sudbury Downs race track, to excluded 10 OHHA members from participating in races. The commission denied OHHA’s request for a hearing to consider the propriety of that exclusion, stating that it did not have jurisdiction. It decided that the private property rights of Sudbury Downs gave it an absolute right to exclude the OHHA members (and anyone else it wished to exclude) from its property.
When OHHA’s application for judicial review was dismissed, it appealed with leave to the Court of Appeal. The respondents were the commission and Sudbury Downs; the Ontario Jockey Club (owner of Woodbine and Mohawk racetracks) intervened to oppose the appeal. The court allowed the appeal, and concluded that the commission has jurisdiction, and ordered it to convene a hearing to consider the propriety of Sudbury Downs’s exclusion of the OHHA members.
John Laskin and Arlen Sternberg of Torys LLP acted for the appellant. Donald Bourgeois and Joanne Mitchell acted for the commission. Douglas Los of Weaver, Simmons LLP in Sudbury acted for Sudbury Downs. P. David McCutcheon and Carlton Mathias of Fraser Milner Casgrain LLP acted for the intervenor, the Ontario Jockey Club.
Sudbury Downs is seeking leave to appeal to the Supreme Court of Canada.