CITATION: Sheppard v.

Ontario Racing Commission, 2011 ONSC 1932

DIVISIONAL COURT FILE NO.: 335/10
DATE: 20110325

ONTARIO

2011 ONSC 1932 (CanLII)

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

FERRIER, LEDERER AND LAUWERS JJ.

BETWEEN: )
)
JONATHON SHEPPARD and ) Harvey A. Swartz, for the Applicants
JUDDMONTE FARMS INC. )
)
Applicants )
)
– and – )
)
ONTARIO RACING COMMISSION and ) Brendan VanNiejenhuis and Andrea
ROBERT EVANS ) Gonsalves, for the Respondent, Ontario
) Racing Commission
Respondents )
) Peter F. C. Howard, for Robert Evans
)
)
) HEARD at Toronto: March 25, 2011

LEDERER J. (ORALLY)

[1] On September 20, 2009, following a race at Woodbine, a jockey lodged a complaint that

his horse had been interfered with. The Stewards at the track agreed and made a decision which

adjusted the order in which the horses finished. There was an appeal to the Ontario Racing

Commission (“ORC”). There was a full hearing on May 26, 2010. The ORC rendered its

decision on June 10, 2010 at which time it reinstated the original results of the race.
 Page: 2

[2] This is a judicial review of the decision of the ORC. Three substantive submissions were

made by the applicants.

2011 ONSC 1932 (CanLII)

Notice

[3] Juddmonte Farms Inc., the owner of the horse which, by the decisions of the Stewards,

would have finished in third place, but which as a result of the finding of the ORC, finished in

fourth place, submitted that it did not receive notice of the hearing. There was evidence

consistent with the rules of the ORC that both Juddmonte Farms Inc. and the jockey had been

notified by letter sent by regular mail to the addresses that they had each provided to the ORC for

this purpose.

[4] Counsel for Juddmonte Farms Inc. submitted that there was no proof that, in fact, these

letters were sent. During cross-examination, the legal administrator with the ORC, the official

responsible for mailing out notices, indicated that she had no specific recollection of putting a

notice of the hearing in an envelope and sending it to Juddmonte Farms Inc. A reading of the

transcript indicates that the practice of the ORC was to deliver notices to those listed on the

document. There is nothing in the evidence to suggest that anything other than that the normal

practice was followed.

[5] In the circumstances, there was actual notice. The Chief Administrative Officer of

Juddmonte Farms Inc. deposed that she was aware that the decision of the Stewards was being

appealed. Further, the jockey who had been on the owner’s horse for the race in question was

telephoned the day before the hearing. None of those who were advised of the appeal or the
 Page: 3

hearing made any effort to communicate with the ORC to inquire as to its purpose or to advise of

their interest in participating.

2011 ONSC 1932 (CanLII)

[6] Moreover, it is apparent that even if Juddmonte Farms Inc. had been notified, there is no

reason to believe that its participation would have had any impact on the results of the hearing.

Juddmonte Farms Inc.’s jockey initiated the complaint but could not provide evidence as to what

happened. He was unable to identify which horse had interfered with his. The administration of

the ORC and the trainer of the horse which the Stewards placed first took positions that

represented and were aligned with the interest of Juddmonte Farms Inc.

[7] The parties present called experts to support this view and there is no reason to believe

that the addition of witnesses would have added information or a perspective, not before ORC at

the time of the hearing. Furthermore, there was no evidence on this application describing the

evidence that Juddmonte Farms Inc. would have adduced at the ORC hearing (see Canadian

Transit Co. v. Canada (Public Services Staff Relations Board), [1989] 3 FC 611 and

Telecommunications Workers Union v. Canada (Radio-television and Telecommunications

Commission), [1995] 2 S.C.R. 781)

[8] The application for judicial review of Juddmonte Farms Inc. is dismissed.

Bias

[9] Jonathon Sheppard, the owner of the horse, which by the decision of the Stewards would

have finished in first place, but which as a result of the finding of the ORC, finished in second

place, submitted that there was a reasonable apprehension of bias in the ORC.
 Page: 4

[10] One of the Stewards had telephoned Jonathon Sheppard to advise him of the ORC

hearing. As a result, he appeared at the hearing with counsel. Despite the lateness of his

2011 ONSC 1932 (CanLII)

participation, the ORC allowed him standing and permitted him to call an expert witness.

[11] In its reasons, the ORC commented that, while it found no fault that the actions of the

Steward, in the future communications of parties interested in an appeal, should occur through

the legal department of the ORC. In its factum, counsel for Jonathon Sheppard submitted that

this demonstrated bias in that it suggested that the ORC was critical of how he came to

participate in the proceedings.

[12] There is simply no evidence that suggests any circumstance in which an informed person

viewing the matter realistically and practically and having thought the matter through would

conclude that a reasonable apprehension of bias was present.

The Evidence

[13] It is acknowledged by all the parties that the appropriate standard of review is

reasonableness. The decision of the Stewards was based on their finding that a horse moving

from the eighth path to the second path interfered with another. The ORC is authorized to and

conducted a de novo hearing. It determined that there had been no interference. The horse that

moved had simply occupied open and available space.

[14] The applicants seek to have this Court overturn the findings of the ORC and replace them

with those of the Stewards. These are findings of fact. In this case, the ORC conducted a

comprehensive hearing. It heard, accounted for and weighed evidence from a variety of
 Page: 5

witnesses as well as a DVD and photographic evidence of the race. There was no palpable or

overriding error. The fact that the applicants are unhappy with the result is not a reason for us to

2011 ONSC 1932 (CanLII)

interfere.

[15] The application for judicial review of Jonathon Sheppard is dismissed.

[16] To be complete, even if we had been inclined to grant either of these applications for

judicial review, we would have had difficulty ordering the remedy requested. The jockey of the

horse found by the Stewards to have interfered was a necessary party. The decision of the

Stewards caused him to be suspended for three racing days. This is a significant penalty. As a

result of the decision of the ORC, the finding of misconduct was overruled. It would have been

inappropriate for the Court to overturn the decision of the ORC making the jockey vulnerable to

a penalty without having heard from him.

FERRIER J.

[17] Costs to the ORC, including disbursements and HST, fixed at $8,000.00. Costs to Evans

fixed at $7,000.00 including disbursements and HST. Sheppard and Juddmonte to be jointly and

severally liable for the costs. Costs are directed to be paid out of purse monies held by

Woodbine Entertainment Group to the credit of Sheppard and Juddmonte.

FERRIER J.
 Page: 6

LEDERER J.

2011 ONSC 1932 (CanLII)

LAUWERS J.

Date of Reasons for Judgment: March 25, 2011

Date of Release: April 15, 2011
 CITATION: Sheppard v. Ontario Racing Commission, 2011 ONSC 1932
DIVISIONAL COURT FILE NO.: 335/10
DATE: 20110325

2011 ONSC 1932 (CanLII)

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

FERRIER, LEDERER AND LAUWERS JJ.

BETWEEN:

JONATHON SHEPPARD and JUDDMONTE FARMS

INC.

Applicants

– and –

ONTARIO RACING COMMISSION and ROBERT

EVANS

Respondents

ORAL REASONS FOR JUDGMENT

LEDERER J.

Date of Reasons for Judgment: March 25, 2011

Date of Release: April 15, 2011