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Vice - Horse Racing. Brooks v. The Alcohol and Gaming Commission of Ontario
In Brooks v. The Alcohol and Gaming Commission of Ontario (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a JR, this brought against "the decision of the Alcohol and Gaming Commission of Ontario .... [SS: aka] (the “Standardbred Directive”). That Directive dealt with the distribution of certain funds that were the subject of a forfeiture order in 2014.".
Here the court illustrates rare enforcement events and procedures taken (initially) under the Racing Commission Act, 2000 [repealed 01 April 2016] and (subsequently) under the Horse Racing Licence Act, 2015:[4] The applicant Jeffery Brooks was a licensed racehorse owner who operated the applicant Bulletproof Enterprises Ltd. In 2010, the applicants’ licenses were suspended, and all funds, purse accounts and other monies held in Bulletproof’s accounts at Woodbine Entertainment Group (“WEG”) were frozen, pending a full hearing on allegations of misconduct (the “Freezing Order”).[1] Roughly $890,000 was frozen.
[5] The hearing took place in 2013. A panel of the Ontario Racing Commission heard from numerous witnesses and received extensive documentary evidence. The Panel made findings of wrongdoing against the applicants, suspended their licenses for ten years, ordered forfeiture (the “Forfeiture Order”), and imposed a fine.[2] The Vice-Chair found that 119 horses were ineligible to compete for purse money and were disqualified. That finding related to a total of 1,025 races in 2009 and 2010.
[6] As set out in the Forfeiture Order, the frozen funds were forfeited and to be redistributed pursuant to the Rules of Standardbred Racing among the other qualified participants, such as other owners, trainers, and jockeys. However, most of the purse money had been paid out already. As held by the Panel when considering penalty:A secondary penalty element is that this wrongdoing deprived rule-abiding licensees of their lawful purse entitlements. In some measure this is corrected by disqualification of the horses racing in 2009 and 2010 and redistribution of the purse money currently subject to ORC seizure. Redistribution will occur only on the $890,000 currently held at WEB. About 5.5 million in purses, in the two-year time frame having been paid out is not available to be redistributed. No Order was sought relating to those purses – a decision probably premised on futility and common sense. [Emphasis added.] [7] Before this court, the applicants submit an analysis of various banking documents in the record shows that some of the $890,000 was not purse money. However, at the forfeiture hearing the applicants did not seek nor obtain a finding that only a portion of the frozen funds held by WEG were purse funds. A similar issue was raised by another party at the forfeiture hearing, through the Director’s notice of proposed order. A ruling was requested that any money held by the Ontario Sires Stakes program, other than purse money, be forfeited to that program. The applicants did not request such a ruling.
[8] In preparing to challenge the Freezing and Forfeiture Orders in the Divisional Court in 2016, counsel for the applicants emailed Commission counsel about whether all the funds in the WEG account were subject to the Commission’s order. However, the grounds ultimately asserted in the Divisional Court did not include a challenge to the Commission orders on the grounds that a portion of the funds held by WEG were not purse funds.
[9] At the Divisional Court, the Freezing Order was found to lack jurisdiction, and the applicants did not seek any remedy in relation to that Order. The Court upheld that Forfeiture Order on the merits. [3]
[10] The applicants appealed unsuccessfully to the Court of Appeal[4] in 2017. Again, no issue was raised about the scope of the Commission order or the nature of the funds in the WEG account. The Court noted that the Forfeiture Order related to “the frozen accounts.”
[11] In 2019, the Commission[5] released the Standardbred Direction. The Registrar found as follows:(i) that re-seeding and re-distribution in accord with the Rules would require the identification, notification and participation of each owner, trainer and driver (jockey) entitled to participate in the purse distribution with respect to every horse that participated in every one of the 1025 races;
(ii) the passage of time due to the court proceedings prejudiced the Registrar’s ability to accurately identify, locate and direct payment of the appropriate share of the purse distributions to the participants in the affected races;
(iii) that the administrative cost of re-seeding and re-distributing the frozen purse monies to participants was likely to exceed the frozen purse monies; and,
(iv) that it was in the best interests of racing to direct those funds to the benefit of the Ontario racing industry as a whole (rather than unwinding all of the purse distributions from the affected races). [12] The Registrar therefore decided, under r. 1.09 of the Rules of Standardbred Racing, to exercise his discretion to waive the re-seeding rule and the rule that would otherwise permit an appeal to the Horse Racing Appeal Panel. The resulting Standardbred Direction implemented the decision to redirect the frozen funds to the Commission.
[13] In January 2020, the applicants commenced this application for judicial review seeking to quash the Standardbred Directive and related relief. Despite the COVID-19 Pandemic, the respondent delivered a record of proceedings in June 2020. The applicants did not take steps to move their application forward in court.
[14] In March 2023, in response to a motion to dismiss for delay, the applicants wrote a letter to the court and the parties with a lengthy explanation for the time that had passed. The letter indicated that they would were in the position to set an early date for the hearing of their application. In the circumstances, the respondent did not pursue the motion.
[15] The applicants did not proceed to move their matter forward expeditiously or otherwise. No court materials were delivered. Then, over a year later, the respondents contacted the court about the continuing delay. The application then moved forward under case management. . Toscani and Holland v. AGCO
In Toscani and Holland v. AGCO (Div Court, 2024) the Divisional Court dismissed a JR of "the decision of the Horse Racing Appeal Panel (“HRAP”) which dismissed their appeal from rulings by the Registrar, Alcohol and Gaming Commission of Ontario (“Registrar”) that they had violated the Rules of Standardbred Racing (“RSR”) established under the Horse Racing Licence Act, 2015".
These quotes illustrate procedures in this little-litigated area of 'horse law':[3] In accordance with Rule 22.38 of the RSR, the Registrar required that blood samples be taken from GF and tested for total carbon dioxide, or “TCO2” to determine whether they were within the permissible thresholds set by the Registrar.
[4] The test results showed that GF’s blood levels of TCO2 were above the permitted threshold. This is generally a sign that the horse has been administered an alkalizing substance, which can enhance race day performance. There are other reasons why a horse may have high TCO2 levels. If an owner wants to claim that his or her horse has high TCO2 levels for reasons other than the administration of alkalizing substances, pursuant to Rule 22.38.07, the owner may have the horse quarantined and re-tested over a few days. If a quarantined horse’s TCO2 levels stay high after the effects of any alkalizing substances should have subsided, then the RSR precludes a finding that the owner and/or the trainer of the horse violated the rules.
[5] The Applicants did not request that GF be held in quarantine nor did they re-test GF following the TCO2 testing done at the time of the August 7, 2021 race.
[6] The Registrar imposed penalties for the violation of Rule 22.38 as follows:a. Mr. Toscani as Horse Owner – GF was ineligible from racing for 30 days;
b. Mr. Holland as Trainer – Suspension of Mr. Holland for 90 days, a monetary penalty of $5,000, designation of “unplaced” for GF in the race, redistribution of the purse money and two-year probationary terms on Mr. Holland’s license, until February 15, 2024. [7] The Applicants appealed to the HRAP and participated in a six-day hearing in October 2022.
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