Ontario Harness Horse Association v. Ontario Racing Commission

Ontario Harness Horse Association v. Ontario Racing Commission Collection Decisions of the Court of Appeal Date 2002-06-21 Docket numbers C36305 Judges Morden, John Wilson; Catzman, Marvin Adrian; Rosenberg, Marc Subject Civil Decision Content DATE: 20020621 DOCKET: C36305 COURT OF APPEAL FOR ONTARIO MORDEN, CATZMAN and ROSENBERG JJ.A. BETWEEN: ) ) ONTARIO HARNESS HORSE ASSOCIATION ) ) ) John B. Laskin and Arlen Sternberg for the appellant Applicant ) Donald Bourgeois and Joanne Mitchell for the respondent Ontario Racing Commission (Appellant) ) - and - ) ) ) THE ONTARIO RACING COMMISSION and SUDBURY DOWNS HOLDING, A DIVISION OF MACRANALD ENTERPRISE INCORPORATED ) ) ) ) ) ) ) Douglas Los for the respondent Sudbury Downs Holding David McCutcheon and Carlton Mathias for the intervenor Ontario Jockey Club Respondents ) (Respondents in Appeal) ) ) Heard: January 18, 2002 On appeal from an order of the Divisional Court (Justices Jean MacFarland, James Carnwarth and Michael Meehan) dated January 19, 2001. MORDEN J.A.: Introduction [1] This appeal, in the main, is concerned with a narrow issue respecting the jurisdiction of the Ontario Racing Commission: is the Commission entitled to decline jurisdiction to hold a hearing respecting the refusal of the respondent, Sudbury Downs Holdings, a race track owner, to allow standardbred horses owned or trained by members of the appellant, the Ontario Harness Horse Association (OHHA), to race at its track on the sole basis that the race track is the private property of Sudbury Downs? There are other issues respecting the Commission’s powers which I shall consider at appropriate places in the course of these reasons. The Proceeding before the Court [2] I shall begin by setting forth what has transpired in this proceeding to this point. The OHHA commenced an application for judicial review in which the Commission and Sudbury Downs were named as respondents. The Ontario Jockey Club was subsequently granted intervenor status as a respondent. In its notice of application the OHHA sought the following relief: (a) an order quashing the decisions of the Ontario Racing Commission (the “Commission”) dated March 3, 2000 and May 26, 2000 (the “Decisions”) in which the Commission refused to convene a hearing with respect to the exclusion of members of the Association (the “Association Members”) from entering races or racing at Sudbury Downs, a race track operated by the respondent Sudbury Downs Holdings, a Division of Macranald Enterprises Incorporated (“Sudbury Downs Holdings”); (b) an order requiring that the Commission convene a hearing with respect to the exclusion of the Association Members from entering races or racing at Sudbury Downs; (c) an order declaring that the Commission has jurisdiction to hold hearings and to make orders to resolve disputes between persons licensed under the Racing Commission Act, R.S.O. 1990, c. R-2 (the “Act”), including in respect of disputes arising from the assertion of private property rights by licensed race track operators as the basis for excluding other licensees from entering races or racing at race tracks which are operated pursuant to licences issued by the Commission; [3] The two “decisions” of the Commission referred to in paragraph (a) above are in the form of letters. The first is a letter dated March 3, 2000 from Stanley Sadinsky, Q.C., the Chair of the Commission to the President of the OHHA and the second is a letter from counsel to the Commission to counsel representing the OHHA. Both letters make the same point, which was that the Commission did not have jurisdiction because decisions of the courts had upheld the race track owner’s right to exclude persons from the race track premises under the common law and the Trespass to Property Act, R.S.O. 1990, c. T. 21. I quote from a part of the second letter: The law in Canada, both at common law and under statute, is that the owner of private property has an absolute right to determine who may enter his property. Such a right, not only extends to private landowners, but also to those who invite the general public onto their land. This position is endorsed in Russo v. Ontario Jockey Club 62 O.R. (2d) 731 and Sibiga v. British Columbia Racing Commission [1995] B.C.J. No. 1363. Further, as stated in the unreported decision of The Ontario Jockey Club v. The Ontario Racing Commission which followed the decision of the Ontario Court of Appeal in Kimball v. Windsor Raceway, common law rights or statutory rights such as the Trespass to Property Act cannot be removed by a statutory power to regulate or licence alone, unless there is a statutory provision extending the power to abrogate such rights. It is the position of the Commission that the Racing Commission Act does not contain any provision that would remove the common law and statutory rights of the licensee in question. In light of the authorities, the Commission is of the view that the owner of the race track facility is entitled to exercise its private property rights and it therefore declines your request to convene a hearing. [4] The Divisional Court dismissed the application. Its reasons, in the form of an endorsement, read: The applicant argues that Ontario Racing Commission has power to abrogate private property rights in exercising its power to regulate racing, particularly where the public interest is triggered. The applicant submits that the public interest is triggered in the circumstances of this case because competition is lessened by the exclusion of these persons from overnight racing. In our view, if such power is to be given it must either be clearly stated or implicitly apparent. In our view the legislation here is neither. The law is well settled that an owner of property – here Sudbury Downs has the right to exclude persons from its property and the fact that it holds a licence which permits it to hold races pursuant to the Racing Commission Act does not displace that right. In our view, this case is not distinguishable from earlier decisions: there are no factors which are materially different. The Court of Appeal in Kimball v. Windsor Raceway (1973), 40 D.L.R. (3d) 516 at 517: “… a derogation from the common law right of the respondent can only be accomplished by a legislative enactment or by a rule or regulation having legislative effect.” This Court is bound by this judgment of the Court of Appeal. The application is dismissed. Costs to Sudbury Downs fixed in the sum of $5,000.00 and to the Ontario Racing Commission in the sum of $2,500.00. [5] I might mention at this point that counsel agree that the statute that we are to apply is the Racing Commission Act, 2000, S.O. 2000, c. 20, which came into force on December 15, 2000, and not its predecessor, the Racing Commission Act, R.S.O. 1990, c. R.2. The Facts [6] I shall not say too much about the facts or, more accurately at this time, about the rather voluminous evidence which is before the court in the form of affidavits and exhibits. This is because there are clear differences between the OHHA and Sudbury Downs on what the facts are and on their significance. Further, for this court to decide the clear jurisdictional issue presented, it is not necessary to dwell on the evidence at length and, certainly, not to resolve the competing contentions. Clearly, if the Commission has jurisdiction to hold a hearing with respect to the OHHA’s allegations, it would be very important for it to make findings of fact on the whole of the evidence before deciding what action, if any, to take. [7] Having said this, I relate the following background facts and allegations. [8] The OHHA is an organization formed in 1961. It has over 5100 members who are involved in the harness horse racing business throughout Ontario, including owners, breeders, trainers, drivers and people who care for standardbred horses. The OHHA’s purposes include representing men and women involved in harness horse racing in negotiations with bodies governing harness horse racing, including Standardbred Canada, the Ontario Racing Commission, and the federal and provincial governments. [9] There are ten OHHA members who, since 1999, have been refused entry in overnight races at Sudbury Downs. They allege that the overnight races are their primary source of income. The OHHA alleges that Sudbury Downs Holdings has refused to allow these members to participate in these races despite the fact that: (i) each of them has held a licence in good standing issued by the ORC for many years; (ii) all of them had participated in racing at Sudbury Downs prior to their elimination in 1999; and (iii) none of them has any serious disciplinary record in relation to racing (with nine of them having no disciplinary record whatsoever). [10] The ten members allege that they have collectively invested $2.5 million to establish horse racing businesses, nine of which were specifically located in or near Sudbury, in order to take advantage of racing at Sudbury Downs which is 180 miles (320 km) away from the next closest race track. [11] Sudbury Downs race track is owned and operated by MacRanald Enterprises Incorporated. Patrick MacIsaac is the president of MacRanald Enterprises. Sudbury Downs holds two types of races – overnight races and Ontario Sire Stakes races. Overnight races are held more frequently and, as I have indicated, are alleged by the OHHA members who have been excluded from racing and who are local competitors to be their primary source of income. [12] The elimination of the OHHA members from racing occurred after failed contract negotiations between the OHHA and Sudbury Downs led to a boycott of Sudbury Downs in 1998. [13] The OHHA alleges that Sudbury Downs’ refusal to permit the Association Members to race has materially lessened and interfered with competition in overnight races at Sudbury Downs. At least 5%, and as much as 20%, of local competitors have been eliminated from overnight racing at Sudbury Downs as a result. [14] Sudbury Downs’ basic position on the facts is summed up in the overview part of its factum, as follows: Since 1999, the respondent, Sudbury Downs has felt it necessary to exclude certain of the applicants in this proceeding who are members and/or supporters of OHHA, from some areas of its race track premises, and to deny them access to certain activities at the race track, for the following reasons: (a) the applicants have all been vocal and aggressive supporters of a campaign by OHHA to convince local horse people in Sudbury to engage in a boycott of Sudbury Downs race track; (b) the means employed by the applicants to convince others to join in the OHHA boycott have included attempts to intimidate, coerce, and otherwise disrupt and interfere with lawful racing activities at Sudbury Downs, and the rights of other participants to freely and peacefully participate in such activities at the race track; (c) many of the above actions of the applicants have been carried out at Sudbury Downs property, in the barn and backstretch area, while local horse persons are preparing for and/or exercising their rights to engage in racing activities; (d) in each case, Sudbury Downs has been compelled to exclude from certain of its premises, and to deny access to certain racing activities at Sudbury Downs, certain individuals who have engaged in disruptive activities in the past, and who it reasonably believes will engage in such activity in the future to the detriment of the rights of Sudbury Downs to carry on its business, and the rights of other individuals who wish to exercise their rights to participate in racing activities; (e) the respondent, Sudbury Downs, has never refused access to its premises or denied participation in any racing activities to any individual based solely on his or her membership in OHHA, and has no intention of denying access to any person on such basis in the future. [15] The excluded members and the OHHA deny Sudbury Downs’ allegations that they engaged in, or were likely to engage in, intimidatory or disruptive behaviour. [16] I might mention that during the hearing the court raised the question of the OHHA’s standing to bring this proceeding. The response was that the issue in the proceeding, that of the Commission’s jurisdiction, was fundamental to all members of the OHHA. This has been implicitly recognized throughout this proceeding and no standing issue is raised. The Authority on which the Commission, Sudbury Downs, and the Ontario Jockey Club Rely [17] The root authority supporting the Commission’s reliance on the private property rights of Sudbury Downs as the basis for declining jurisdiction in this matter is the judgment of this court in Kimball v. Windsor Raceway Holdings Ltd. (1973), 1 O.R. (2d) 428 which dismissed an appeal by the plaintiff from a judgment of Addy J., reported at [1972] 3 O.R. 307 (H.Ct.). With respect, I do not think that the judgment in Kimball addresses the powers of the Commission which are relevant in the present case. The proceeding in Kimball was a civil action and was concerned solely with the personal rights of the plaintiff against the defendant – in short, with whether the plaintiff had a valid cause of action. I shall elaborate on this. [18] The plaintiff was licensed by the Ontario Racing Commission as a groom, trainer, and driver of standardbred horses. The defendant, a licensed raceway owner, barred the plaintiff from engaging in his calling on its raceway. The plaintiff brought an action against it. Addy J. at p. 309 of his reasons stated the nature of the action: The plaintiff sued the defendant company for general, special and punitive damages and for an order obliging the defendant to continue to receive horses, which the defendant wishes to drive, providing, of course, that the horses qualify pursuant to C.T.A. [Canadian Trotting Association] and track rules. The action is based on the allegation that, although the raceway is owned by a private corporation, it has not a full and unfettered right of deciding who, among those duly licensed persons engaged in the trade or occupation of racing, should be allowed entrance to the backstretch or to use the track. [19] Addy J. rejected submissions that the receipt of public money by the defendant created a right of entry by persons licensed to use the track and, also, the submission that the grant of monopoly to the defendant created such a right. He made a finding that the defendant had failed to prove that the conduct of the plaintiff was in any way prejudicial to the best interests of racing or that he had interfered with those interests. [20] The plaintiff also relied on rule 15.02 which had been made by the Commission under s. 15 of the Racing Commission Act, R.S.O. 1970, c. 398. Rule 15.02 provided, in part: 15.02 No person shall operate as an Association racing official, Association employee (except such Association employees as are exempted by the Commission), owner, trainer, driver or stable employee, nor shall anyone practice his profession, trade or calling on a race track without an annual license issued to him by the Commission, and such license shall be honoured as a pass to such part of the grounds as, when and where the licensee is obliged to perform his duties, … [Emphasis added]. [The current version of this provision in the Rules of Standardbred Racing, 2001 appears to be rule s. 3.02.] and section 15 read: 15. Rules for the conduct of horse racing may be promulgated by the Commission under this Act and any order or ruling issued or made by the Commission under this Act shall be deemed to be of an administrative and not of a legislative nature. [The current version of this provision in the Racing Commission Act, 2000, S.O. 2000, c. 20 is s. 11(1) and (11).] [21] Addy J. held that the plaintiff was not entitled to any relief under rule 15.02. At page 319 he said that rule 15.02: is clearly a direction addressed to the operators of racetracks pursuant to the Commission’s power to regulate horseracing. The breach of this direction by the operator of a racetrack renders him subject to whatever sanctions or penalties may be legally imposed by the Commission, but does not create a right in any or all of the licensed personnel to sue in a Court of law, in their own name, for a remedy on the basis of a right acquired by any of them against any operator. The O.R.C. cannot, because it is not clearly so stated in the Act, grant to a third party any right over the business or property of a race track operator. [22] I think it is clear that the foregoing in so far as it related to the powers of the Commission, was concerned only with the meaning and application of rule 15.02. Addy J. then said at p. 319: This does not mean that the Commission cannot, as a condition to being licensed as a race-track operator, insist and direct that a licensed operator act in a specified way and, more particularly , accept all O.R.C. licensed drivers, trainers, owners or stable hands. Since the defendant has therefore not been deprived of any of his basic property rights, or the rights or privileges incident thereto, and since the plaintiff has not been granted any basic or personal right over the property or business of the defendant, the remedy which the plaintiff seeks to enforce is clearly not available to him in a Court of law. His forum and his method of obtaining redress is to address himself to the O.R.C. to have it take whatever action it may deem appropriate under the circumstances, against the offending operator, pursuant to the power vested in the O.R.C. and in accordance with its rules and regulations. Should the O.R.C., without justification, refuse to act or consider the complaint, then the plaintiff would have a redress at law against the O.R.C. but not against the defendant. [Emphasis added] [23] The plaintiff appealed to the Court of Appeal and, as appears from the reasons of Jessup J.A. and Arnup J.A. (with both of whom Schroeder J.A. concurred), relied upon the “right” conferred under rule 15.02. Jessup J.A., after quoting rule 15.02 in full, said at p. 429: If the appellant has that right, it is in derogation of the common law right of the respondent to exclude from its premises such persons as it sees fit. Such a derogation from the common law right of the respondent can only be accomplished by a legislative enactment or by a rule or regulation having legislative effect. In my opinion, Rule 15.02 does not have such a legislative effect. I say that because of the provisions of s. 15 of the Racing Commission Act, R.S.O. 1970, c. 398, which provides: 15. Rules for the conduct of horse racing may be promulgated by the Commission under this Act and any order or ruling issued or made by the Commission under this Act shall be deemed to be of an administrative and not of a legislative nature. [24] Arnup J.A. agreed with Jessup J.A.’s reasons at p. 430 and added that rule 15.02, properly interpreted, did not confer on the plaintiff the right he asserted. He concluded his reasons at p. 430 as follows: The Commission has prescribed that its licence to an owner, trainer or driver must be honoured as a pass for admission to the relevant parts of the race track grounds, but that is all it has prescribed. Therefore, it is my view that the right claimed to flow from the licence which the appellant holds from the Commission does not, in fact, arise from the provisions of Rule 15.02. Without such a right, the action cannot succeed. What Did Kimball Decide? [25] It is clear from the reasons of both Addy J. and the Court of Appeal that the only issue that each court decided was that the law did not afford the plaintiff a cause of action against the defendant. Apart from addressing the nature of the Commission’s power to make rule 15.02, the courts were not obliged to deal with the Commission’s powers generally. In fact, Addy J. in his concluding passages, which I have quoted and, in part, emphasized, said that the plaintiff’s proper forum was the Commission and that, should the Commission unjustifiably refuse to act, the plaintiff would have redress against the Commission, not the defendant. He expressed the opinion that the Commission could use its licensing power in such a way that the plaintiff would obtain some relief. [26] I recognize that the statements of Addy J. are dicta and that they were not repeated by the Court of Appeal. Neither, however, did the Court of Appeal dissociate itself from the statements. I think that reference can properly be made to Addy J.’s statements to emphasize what was not decided in Kimball, namely the nature and scope of the powers of the Commission which could be tested in a different kind of proceeding, one against the Commission itself. [27] Accordingly, I am obliged to express my respectful opinion that subsequent decisions which have relied upon Kimball as authority on the nature and scope of the Commission’s powers have, in that particular regard, erred. I refer in particular to Re Wray and Ontario Racing Commission (1982), 138 D.L.R. (3d) 307 (Ont. Div. Ct.) and Ontario Jockey Club v. Ontario Racing Commission (Ont. Div. Ct.), February 3, 1995. [28] In Wray the Commission had refused to hold a hearing into the exclusion by the Windsor Raceway of a licensed trainer and driver of standardbred horses. The Divisional Court dismissed the application of the trainer and driver for judicial review of the Commission’s decision. It relied squarely on Kimball and addressed only the effect of the Commission’s rules and not its administrative power under what is now, primarily, s. 7 (generally, to govern and regulate horse racing) of the Racing Commission Act, 2000, which I shall deal with shortly. [29] In Ontario Jockey Club v. Ontario Racing Commission, the Commission decided that a licensed driver was “entitled to entry and an opportunity to race at a race track licensed in this province”. The Divisional Court granted the race track owner’s application for judicial review and set aside the Commission’s decision. In its endorsement it said that the circumstances of the case were virtually identical to Kimball and that it was “determinative” of the issue. [30] The court concluded its judgment as follows: Common Law rights or Statutory Rights such as the Trespass to Property Act cannot be removed by a Statutory Power to regulate or licence alone. There must be a provision by Statute extending the power to abrogate such rights. This case is unlike the Cadillac Fairview Corp. Ltd. v. R.W.D.S.U. (1989) 71 OR 2d 206 where it was held that s. 64 of the Ontario Labour Relations Act did so abrogate. There is no such section at the Racing Commission Act, R.S.O. 1990 c. R. 2. [31] As I have indicated above, I do not think that Kimball is determinative of a case in which the Commission’s administrative powers under the governing statute are in issue. Later in the reasons I shall address the bearing of Cadillac Fairview on this issue. [32] What may properly be taken from Kimball and the decisions that have followed it is the proposition that a race track owner, as an owner of private property, has at common law, and under the Trespass to Property Act, the right to exclude from its property those whom it sees fit to exclude. What must be decided in this appeal is whether the Commission, in carrying out its mandate under the Racing Commission Act, 2000, has the power, in certain circumstances, to modify the exercise of this right. [33] I should add, at this point, that I do not think the Commission was wrong in considering that it was bound by the case law in Ontario, specifically Wray and Ontario Jockey Club v. Ontario Racing Commission, to conclude that it had no jurisdiction. As I have just related, in the latter case the Divisional Court had set aside the Commission’s decision granting relief to a licensed driver. The Racing Commission Act, 2000 [34] I turn now to the Racing Commission Act, 2000, S.O. 2000, c. 20. In the appendix to these reasons I set forth the most material provisions in the Act but, for convenience, I set forth immediately below those provisions in the Act to which I shall be making the most frequent reference. 5. The objects of the Commission are to govern, direct, control and regulate horse racing in Ontario in any or all of its forms. 6. The Commission shall exercise its powers and perform its duties in the public interest and in accordance with the principles of honesty and integrity, and social responsibility. 7. The Commission has power, (a) to govern, direct, control and regulate horse racing in Ontario in any or all of its forms; (b) to govern, control and regulate the operation of race tracks in Ontario at which any form of horse racing is carried on; (c) to license persons to operate race tracks, at which horse racing in any of its forms is carried on, and to impose the terms on a licence that the Commission considers expedient; (d) to license owners, trainers, drivers, jockeys, apprentice jockeys, grooms, jockeys’ agents, jockeys’ valets, exercise riders, tradespersons and those other persons in or about race tracks, at which horse racing in any of its forms is carried on, and to impose those terms on a licence that the Commission considers expedient; (e) to prescribe the form of licences and the conditions under which they may be issued, continued or renewed; …. (k) to hold hearings relating to the carrying out of its objects or powers, to establish the procedure for the hearings and to require, by a summons signed by the chair or by another member of the Commission, a person to give evidence on oath and to produce the documents and things that the Commission considers requisite in a hearing. …. 19. The Director shall refuse to issue a licence to an applicant or to renew the licence of an applicant if, (a) there are reasonable grounds to believe that, while the applicant carries out activities for which the licence is required, the applicant will not act in accordance with law, or with integrity, honesty, or in the public interest, having regard to the past conduct of the applicant; or (b) the applicant is carrying on activities that are, or will be, if the applicant is licensed, in contravention of this Act, the regulations, the rules or the terms of the licence. [35] From s. 7(k) of the Act, it can be seen that the Commission has the power to hold hearings “relating to the carrying out of its objects or powers.” The “objects” of the Commission are “to govern, direct, control and regulate horse racing in Ontario in any or all of its forms” (s. 5). Under s. 6 the Commission has the obligation to “exercise its powers and perform its duties in the public interest and in accordance with the principles of honesty and integrity, and social responsibility”. I note that this express obligation is new with the current Act which, as I have said, came into force on December 15, 2000. [36] I turn now to the generally expressed powers of the Commission under ss. 7(a) and (b) which, for the most part, track the wording of ss. 5 and 6: the Commission has the power to govern, etc. “horse racing in Ontario” (s. 7(a)) and, something possibly more specific, “the operation of race tracks in Ontario” (s. 7(b)). [37] Before returning to the potential meaning of these terms, I shall refer to an important general authority on the scope of the Commission’s powers. In Re Morrissey Armstrong and Ontario Racing Commission (1958), 12 D.L.R. (2d) 772, affirmed [1960] S.C.R. 104, this court affirmed at p. 773 “the wide scope of administrative powers granted to the Commission.” This decision was made with reference to the Racing Commission Act, R.S.O. 1950, c. 329. The relevant provisions in that statute are contained in the present Act, which, as I have said, contains additional provisions that emphasize the duty of the Commission to exercise its powers in the public interest. [38] In Morrissey, this court held that the Commission had the power to prohibit an owner from entering his horses in races held in Ontario unless the owner changed the names of the horses. It appeared that in naming the horses the owner was carrying on a personal vendetta with another person who was a prominent figure in horse racing in Ontario. Roach J.A., for this court, referred to ss. 11(a), (b), (m), and (j) and 15 of the Act at that time which are similar to ss. 7(a), (b), 11(1) and (11), and 21 of the current Act. He then said at p. 773: 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. [39] At pp. 775-776 he said: In our unanimous opinion, the Ontario Racing Commission had unquestionably the jurisdiction to do the very thing that they had said they would do in the event that the names were not changed. That would be the exercise by the Commission of an administrative function and not by any stretch of the imagination a legislative act. This Court is not concerned with the wisdom or the propriety or the expediency for action by the Commission such as it threatened to take. Where administrative functions are entrusted to a body, such as the Racing Commission, the Court will not interfere, provided that the Commission, or such body, acts within the limits of its administrative power and if the Commission carried out what it proposed to do, in our opinion, it would be acting within the administrative powers entrusted to it. …. All that this Court intends is to say – that the Commission has the administrative power to prevent these horses racing on Ontario race tracks under those names, if, in the exercise of its wisdom, it is undesirable in the best interests of racing or the public interest that they should do so. [40] The judgment of the Court of Appeal was affirmed by the Supreme Court of Canada. Martland J., speaking for the court, said at p. 109: With respect to the second point of argument, I agree with the Court of Appeal that the wide scope of administrative powers entrusted to the Commission by virtue of The Racing Commission Act was sufficient to enable it to do what it had said it would do in the event that the names of the race horses were not changed. The Commission has power to govern, direct, control and regulate horse racing in Ontario. It is for the Commission itself to determine what conduct it considers to be contrary to the public interest in deciding as to whether a licence issued by it should be revoked. The Commission did not indicate the exact steps which it proposed to take in the event that the names of the horses were not changed, but it is clear that it could have taken the step of revoking the licence held by the appellant Armstrong if it had decided so to do. [41] I note that there was no provision in the Racing Commission Act which conferred power on the Commission to order the name changes. Both courts held that the power was conferred by the general wording “govern, direct, control and regulate race horsing in Ontario.” The Supreme Court held that this power was backed up by the power to revoke the owner’s licence. [42] Returning to ss. 5, 6, 7(a), (b) and (k), in the Racing Commission Act, 2000, and their potential meaning with respect to the issue raised in this case, it appears to me that the main elements which must be addressed, all, of course, within the context of the Act, are: (1) the meaning of “govern” and “regulate”; (2) the meaning of “horse racing” and “the operation of race tracks”; and (3) the bearing of the foregoing on Sudbury Downs’ property rights. (1) The meaning of “govern” and “regulate” [43] With respect to the potential scope of “govern” and “regulate”, it seems to me that these words which, for present purposes, may fairly be regarded as meaning the same thing, necessarily involve the power to alter the existing legal landscape in some ways – providing for some modification of legal rights, including property rights. In Re Karry and City of Chatham (1909), 20 O.L.R. 178 (H.Ct.) aff’d 21 O.L.R. 566 (C.A.), which was concerned with the scope of a power to pass by-laws for “regulating victualling houses”, Boyd C. said at pp. 179-80: One general principle has to be kept in mind, and it is well expressed by Lord Hobhouse in Slattery v. Naylor (1888), 13 App. Cas. 446, 449, 450: “It is difficult to see how the council can make efficient by-laws for such object as … regulating places of amusement … providing for the general health … not to mention others, unless they have substantial power of restraining people, both in their freedom of action and in their enjoyment of property.” [Emphasis added] (2) The meaning of “horse racing” [44] It is sufficient if I confine the question to the meaning of “horse racing”. I do not think it is debatable that the grounds on which a licensed track owner excludes a licensed horse owner, trainer, driver, etc. from racing is a matter which comes within “horse racing”. A direct illustration of this is rule 14.13 in the rules relating to standardbred racing made by the Commission under its power under s. 11(1) of the Act to “make rules for the conduct of horse racing in any of its forms.” Rule 14.13 provides: The race secretary may reject the declaration to an overnight event of any horse whose past performance indicates that it would be above or below the competitive level of other horses declared to that particular event. [45] Reference was made to this rule in the course of the dispute between the parties in this case. I quote from a letter dated April 6, 2000 from the Director of the Commission to Mr. MacIssac: As you know our office has been investigating a complaint that the Race Secretary at Sudbury Downs has declined certain entries until such time as the individual licensees making the entries meet with you to discuss certain matters. On April 5th, 2000, I attended a meeting you had scheduled with Mr. Gerry Lamoureux to discuss whether or not Sudbury Downs would accept Mr. Lamoureux’s entry to race. During the meeting you informed me that you had not rejected Mr. Lamoureux’s entries or refused him admission to your grounds under the Trespass to Property Act. In light of this, I informed you at the meeting that the only ground under which an entry can be rejected under the rules of racing would be found under Rule 14.13 which reads: “The race secretary may reject the declaration to an overnight event of any horse whose past performance indicates that it would be above or below the competitive level of other horses declared to that particular event.” It was clear from the meeting of April 5th, that in Mr. Lamoureux’s case, the race secretary’s decision to reject his entry was not based on rule 14.13. Therefore, Sudbury Downs is required to bring its practice of accepting or rejecting entries immediately in compliance of the parameters afforded by the rules of racing. Please advise me of what steps Sudbury Downs will be taking to rectify this situation. [46] Obviously, the Commission, in making rule 14.13, regarded its subject matter to be within its jurisdiction as relating to “the conduct of horse racing”. If it was right in this regard, as far as its rule-making power was concerned, as I think it was, surely it would be right in regarding the matter of exclusion of licensed horse owners as being within its administrative power. (3) The bearing of the foregoing on Sudbury Downs’ property rights [47] I now consider the intersection between the Commission’s powers, just considered, and Sudbury Downs’ property rights. I must say at the outset that I do not think that it is a completely accurate characterization of the issue between the parties to say that it is concerned with Sudbury Downs’ property rights. While it is true that taking some action which may allow members of the OHHA to race at Sudbury Downs necessarily involves some interference with its property rights, the essence of the dispute is not over property rights but over the exclusion of certain licensed persons from the sport of horse racing. It is much more a horse racing issue than a property issue. Its bearing on Sudbury Downs’ property rights is more incidental than direct. [48] What is the Commission to take into account in exercising its powers? Section 6 mandates that the Commission exercise its powers “in the public interest”. Section 19(a), as part of the licensing provisions, imposes the duty on any licensee, which includes Sudbury Downs, to “act in the public interest.” It is not necessary to expound at length on a meaning of “the public interest”, a term which finds itself in many statutes. It is sufficient to say that in the present context it must mean that not only the interest of Sudbury Downs be taken into account but also the interests of other participants in the industry – horse owners, drivers, etc. and race track patrons – in short, the good of horse racing generally. One facet of the dispute in this case relevant to the public interest, depending on the facts that may be found, is its bearing on the competitive level of the racing at Sudbury Downs. In rule 14.13, just referred to in connection with the meaning of “horse racing”, the Commission has declared itself on the importance of competition. [49] It should be taken into account that horse racing is, necessarily, a heavily regulated industry. The Commission has made several rules relating to standardbred racing which restrict the private property rights of a race track owner: “Members of the Commission and its designated representatives, in the performance of their duties, shall have the right to full and complete entry to all parts of the grounds and buildings of any [race track operator]” at any time. (rule 7.08); “… Any person or authorized agent eligible to claim a horse shall be allowed access to the grounds of the [race track operator] in order to effect a claim at the designated place of making claims and to take possession of the horse claimed.” (rule 15.07); and, under rule 5.13, Commission judges have “reasonable control over and unrestricted access to” all areas of race track property. [50] These rules are made under s. 11(1) of the Racing Commission Act, 2000, which, as I have said, empowers the Commission to make rules for “the conduct of horse racing.” No doubt, race track owners regard these rules as being sensible and within the authority of the Commission, even though they restrict their power to exclude from their property whomever they see fit to exclude. It makes sense to me that the Commission’s administrative powers in relation to horse racing under s. 7, which this court in Morrissey described as being of “wide scope”, should not be narrower than its rule-making power in relation to horse racing under s. 11(1) in so far as its competence to affect real property rights is concerned. [51] Taking all of the foregoing into account, I think that under the Racing Commission Act, 2000, the Commission has the power, in the public interest, to take action which may, incidentally, affect Sudbury Downs’ property rights. An analogous authority supporting this view is the decision of this court in Re Cadillac Fairview Corp. Ltd. v. R.W.D.S.U. (1989), 71 O.R. (2d) 206 upholding the exercise of power by the Ontario Labour Relations Board to make an order granting union organizers access to company property. In the present case, I do not think that the Commission’s power under the Racing Commission Act can be said to be more circumscribed than those of the Ontario Labour Relations Board in Cadillac Fairview. At pp. 219-20 Robins J.A. said for the court: The relationship between the conduct proscribed by s. 64 [which, briefly, prohibited persons acting on behalf of an employer from interfering with representation of employees by a trade union] and the rights protected by s. 3 [which, briefly, declared that every person is free to join a trade union of his own choice] mandates that the Board, in the exercise of its jurisdiction, resolve conflicts between property rights and organizational rights. The resolution of the conflict will turn upon a balancing of those rights with a view to arriving at a fair accommodation between the interests sought to be vindicated by the assertion of the rights. The enforcement of s. 64 must contemplate incursions into the domain of private property rights and, as the complaint against Eaton’s illustrates, into the domain of commercial and business rights as well. In my opinion, notions of absolutism have no place in the determination of issues arising under a statute designed to further harmonious labour relations and to foster the freedom of employees to join a trade union of their choice. In this area of the law, as in so many others, a balance must be struck between competing interests which endeavours to recognize the purposes underlying the interests and seeks to reconcile them in a manner consistent with the aims of the legislation. [52] One distinction between this case and Cadillac Fairview that, I think, favours the OHHA is that the ordered incursion into property rights in Cadillac Fairview was much starker than the potential incursion on Sudbury Downs’ property rights in the present case. As I have said, the real issue is horse racing not property rights. [53] It will be recalled that in Ontario Jockey Club v. Ontario Racing Commission, supra, the Divisional Court said that Cadillac Fairview held that s. 64 of the Labour Relations Act extended the power to abrogate property rights but that there was no similar provision in the Racing Commission Act. I observe that there was nothing in s. 64 which expressly authorized an infringement of property rights. The court, taking into account the purposes of the Labour Relations Act, held that such a power was necessarily implied. The same process of implication is applicable in this case. Horse racing is conducted on the ground. The exercise of the power to govern and regulate this activity necessarily involves the making of some decisions which will have some effect on the private property rights of the owner of the ground. [54] The following passage in Driedger on the Construction of Statutes, 3rd ed. by Ruth Sullivan (1994) at p. 373 fairly sums up the principles that are at work in resolving the issue in the present case: The idea that a legislature might intend to limit the free and full enjoyment of individual property rights for the purpose of securing a public benefit or promoting the interests of a larger community is familiar to modern courts and excites little resistance. The focus is on striking an appropriate balance between individual property rights, which remain important, and legislative goals. [55] The “appropriate balance” is struck by construing “governing” and “regulating” horse racing as necessarily involving some impingement on private property rights. [56] Accordingly, I do not think that Sudbury Downs’ private property rights are a barrier to the Commission’s jurisdiction to hold a hearing in this matter. Section 7(k) of the Act empowers the Commission “to hold a hearing relating to the carrying out of its objects or powers”. For the reasons I have given, these “objects or powers” encompass addressing the dispute between the excluded OHHA members and Sudbury Downs. Whether or not the Commission takes any action after holding a hearing will turn, of course, entirely on the facts which it finds and, then, on the exercise of the broad discretion which it undoubtedly has. The possible remedies [57] I should mention that, initially, the primary ultimate remedy that the OHHA seems to have had in mind in seeking a hearing was the revocation of Sudbury Downs’ licence by the Commission or, more practically, the imposition of terms and conditions of its licence respecting its practice of excluding horses from its races. It may be recalled that this was held to be an appropriate remedy with respect to the horse owner’s licence in Morrissey. Having regard to the structure of the licensing powers in the current Act, the Racing Commission Act, 2000, it would appear that this power could only be exercised by the Commission hearing the matter as a reviewing body in relation to a proposed licensing decision by the Director. I refer to ss. 17 and 19-22 of the Racing Commission Act, 2000. [58] It is not necessary, or helpful, to consider at any length the action which the Commission could take following a hearing. It is sufficient to say that I am satisfied that it would be wrong to conclude that it could not take any action. One example of action it could take relates to the approval of race dates for Sudbury Downs under rule 3.01(a) (i). This provision prohibits a race track owner from operating a raceway without having race dates first approved by the Commission. [59] In a decision given on October 14, 1999 the Commission considered an objection on behalf of the OHHA to the application of Sudbury Downs for race track dates on the basis that Sudbury Downs had “denied certain people access to its grounds for the purpose of racing notwithstanding that they are licensees in good standing with the ORC.” The Commission observed that the courts had held that the race track owner had an absolute right to exclude persons. Accordingly, it was “unwilling to deny race dates to Sudbury Downs on this ground”. The implication is that, but for the private property barrier, the Commission would, at least, have considered the objection. [60] In the result, because the only ground which the Commission has declined jurisdiction to hold a hearing is not sustainable and it appears that the matter raised by the OHHA is within the Commission’s jurisdiction, I think that the OHHA is entitled to succeed on this appeal. Disposition [61] For these reasons, I would allow the appeal, set aside the order of the Divisional Court, and in its place make an order quashing the decisions dated March 3, 2000 and May 26, 2000 and directing the Commission to hold a hearing into the OHHA’s complaint respecting the exclusion of its members from racing at Sudbury Downs. I would award the costs of this appeal, including those of the motion for leave to appeal, to the OHHA, payable by Sudbury Downs. I would award the costs of the application to the OHHA payable by Sudbury Downs. In this disposition, I give some weight to the fact that in opposing the application, the Commission, an administrative tribunal, was acting on the view of its jurisdiction which had been decided by the Divisional Court in previous decisions. [62] I would ask the OHHA to deliver its submissions respecting the costs of the appeal, in writing, within seven days of the release of these reasons and Sudbury Downs to deliver submissions within fourteen days of the release of the reasons. “J.W. Morden J.A.” “I agree: M.A. Catzman J.A.” “I agree: M. Rosenberg J.A.” Released: June 21, 2002 APPENDIX Provisions in the Racing Commission Act, 2000, S.O. 2000, c. 26 5. The objects of the Commission are to govern, direct, control and regulate horse racing in Ontario in any or all of its forms. 6. The Commission shall exercise its powers and perform its duties in the public interest and in accordance with the principles of honesty and integrity, and social responsibility. 7. The Commission has power, (f) to govern, direct, control and regulate horse racing in Ontario in any or all of its forms; (g) to govern, control and regulate the operation of race tracks in Ontario at which any form of horse racing is carried on; (h) to license persons to operate race tracks, at which horse racing in any of its forms is carried on, and to impose the terms on a licence that the Commission considers expedient; (i) to license owners, trainers, drivers, jockeys, apprentice jockeys, grooms, jockeys’ agents, jockeys’ valets, exercise riders, tradespersons and those other persons in or about race tracks, at which horse racing in any of its forms is carried on, and to impose those terms on a licence that the Commission considers expedient; (j) to prescribe the form of licences and the conditions under which they may be issued, continued or renewed; …. (k) to hold hearings relating to the carrying out of its objects or powers, to establish the procedure for the hearings and to require, by a summons signed by the chair or by another member of the Commission, a person to give evidence on oath and to produce the documents and things that the Commission considers requisite in a hearing. …. 9. (1) The Commission shall appoint one of its employees to be the Director of the Commission. (2) The Director shall, (a) on behalf of the Commission, exercise the powers of the Commission described in clauses 7(c), (d) and (i); and (b) exercise the powers conferred on the Director and perform the duties assigned to the Director. …. 11. (1) The Commission may make rules for the conduct of horse racing in any of its forms, and if they do not conflict with the regulations, may make rules specifying, (a) information to be included in an application for a licence or the renewal of a licence; (b) activities for the purpose of clause 19(b); and (c) examinations and standards for the purpose of subsection 20(2). …. (11) An order or rule made by the Commission under this Act shall be deemed to be of an administrative and not of a legislative nature. …. 16. (1) No person shall operate a race track at which horse racing in any of its forms is carried on unless the person holds a licence for that purpose. (2) No person shall act as an owner, trainer, driver, jockey, apprentice jockey, groom, jockey’s agent, jockey’s valet, exercise rider, tradesperson or other person of a type that the Commission considers expedient in or about a race track at which horse racing in any of its forms is carried on unless the person holds a licence for that purpose. 17. An application for a licence or the renewal of a licence must be made to the Director and must be in the form and contain the information, including information relating to personal identification, that the Director determines or the regulations or the rules prescribe. 18. (1) The Director may make those inquiries and conduct those investigations into the character, financial history and competence of an applicant for a licence or the renewal of a licence that are necessary to determine whether the applicant meets the requirements of this Act and the regulations. …. 19. The Director shall refuse to issue a licence to an applicant or to renew the licence of an applicant if, (a) there are reasonable grounds to believe that, while the applicant carries out activities for which the licence is required, the applicant will not act in accordance with law, or with integrity, honesty, or in the public interest, having regard to the past conduct of the applicant; or (b) the applicant is carrying on activities that are, or will be, if the applicant is licensed, in contravention of this Act, the regulations, the rules or the terms of the licence. 20. (1) A license is subject to those terms to give effect to the purposes of this Act that the Director proposes and the applicant consents to or that the regulations prescribe. (2) The Director may require, as a term of a licence, that an applicant for a licence or the renewal of a licence pass the examinations or attain the standards that the regulations or the rules prescribe. 21. The Director may propose to suspend or to revoke a licence for any reason that would disentitle the applicant to the issuance or the renewal of the licence. 22. (1) If the Director refuses to issue or renew a licence or proposes to suspend or revoke a licence, the Director shall serve notice of a proposed order, together with written reasons, on the applicant. (2) The notice of the proposed order shall inform the applicant that the person is entitled to a hearing before a panel of the Commission. (3) To request a hearing, the person shall serve a written request on the Director and the Commission within 15 days after the Director serves the notice of the proposed order. (4) The Director may make the proposed order, if the person does not request a hearing within the allowed time. (5) If the person requests a hearing, the panel shall schedule and hold the hearing. (6) After holding a hearing, the panel may by order, (a) confirm or set aside the proposed order; (b) direct the Director to take the action that the panel considers the Director ought to take to give effect to the purposes of this Act. (7) In making an order, the panel may substitute its opinion for that of the Director. (8) The panel may attach the terms to its order or to the licence that it considers appropriate