Alan Goertzen Applicant - v. -, 2012 ABQB 760

Court of Queen ’ s Bench of Alberta Citation: Goertzen v Alberta (Horse Racing Alberta Act, Appeal Tribunal), 2012 ABQB 760 Date: 20121214 Docket: 1201 05241 Registry: Calgary Between: Alan Goertzen Applicant - and - Horse Racing Alberta Appeal Tribunal Respondent _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice R.E. Nation _______________________________________________________ 1. Introduction [ 1 ] This is an application for judicial review of a written Decision of the Horse Racing Alberta Appeal Tribunal ("the Tribunal"), issued on March 28, 2012.

The Decision dealt with a number of preliminary matters that had been argued at the hearing, having to do with cross-examination of a witness, attendance of an observer, bias, payment of a witness, and mootness, none of which are at issue in this judicial review. It is the conclusion that a ruling or direction of a race official must be in writing in order for it to be appealed to the Tribunal that is the subject of judicial review in this application.

2. The Background Facts [ 2 ] Horse Racing Alberta ("HRA") is an independent body governed by the Horse Racing Alberta Act , RSA 2000 c. H-13 .1 ("the Act "). The purpose of the HRA is to regulate all aspects of the horse racing industry within Alberta. [ 3 ] The claimant, Mr. Alan Goertzen ("Goertzen") entered a horse ( “ Chupacabra “ ) in the 6th race of the ABSS Alberta Diamond Stake on August 1, 2010. Goertzen contends that, just before the race started, Chupacabra ’ s rider noted some broken equipment and called out to the starter, but the starter didn ’ t stop the race.

Chupacabra finished in 6th place, but due to interference that was noted during the race, the judges moved Chupacabra from 6th to 7th place. [ 4 ] On August 20, Goertzen filled out a standard form provided by the Tribunal called a “ Notice of Intent to Appeal, ” indicating that he intended to appeal from the judge ’ s/steward ’ s ruling of August 1, 2010. The form, on its face, required Goertzen to acknowledge that he has 30 days from the date of the ruling to file the appeal. He claimed Chupacabra had broken equipment while behind the gate.

He alleged that the starter said his horse had to wait for another horse coming late for the gate, and when the gate slowed down, Chupacabra hit the gate, breaking her stride. He complained there should have been a recall of the race, due to the interference and the broken equipment. He alleged that the failure to recall the race meant that Chupacabra lost her chance to run in the finals on August 8, 2010, for which the purse was $67,900. [ 5 ] On August 24, Goertzen filled out a “ Notice of Appeal, ” another standard form provided by the Tribunal.

That form requested that he attach a copy of the ruling that was to be the subject of the appeal. Goertzen indicated “ none ” .

He indicated that the appeal was from both the starter ’ s decision not to have a recall in race 6 despite his filly having broken equipment, and also from the judges ’ decision to move Chupacabra from 6th to 7th due to interference behind the gate, which Goertzen alleged to be “ two infractions of the rules of starting a race. ” [ 6 ] The Tribunal held a hearing into the matter on August 26, 2010, at which time it was decided that they required further information in order to determine whether or not they had jurisdiction over the matter. [ 7 ] After the August 26 hearing, various correspondence was exchanged between the Tribunal, Horse Racing Alberta, and counsel for Goertzen.

A hearing date was set for November 8, 2011. The Chair of the Tribunal in a letter dated September 24, 2010 advised Goertzen that she could find no ruling or direction given by a racing official, so the Tribunal had no jurisdiction.

However, she invited Goertzen to provide the ruling or direction, if there was one, and the Tribunal would proceed with the appeal. [ 8 ] Goertzen's lawyers responded to that request by letter dated November 19, 2010, detailing a number of things they claimed to be "rulings or directions" given by either the starter or the judges' panel, and setting out the number of the rule they alleged had been breached in each instance.

The issues raised were the starter's ruling that there was a valid start to the race, the starter's causing the gate to move towards the starting line without gradually increasing the speed, the starter's failure to sound a recall despite interference and despite there being a horse with broken equipment, and the judges' ruling that there was a fair start and a recall was not required. [ 9 ] The hearing was reconvened on November 8, 2011. Horse Racing Alberta was present and represented by counsel, as were the Tribunal and Goertzen.

After initial presentations, the Tribunal decided to hear witnesses and enter exhibits. After a full day of hearing, the matter was adjourned to January 30, 2012, when further evidence was heard, as well as submissions on the merits of the appeal. [ 10 ] On March 28, 2012, the Tribunal released its Decision, in which it was concluded that in order to be appealable, a direction or ruling of a race official must be in writing and, as there was no written ruling or direction in this case, the appellant had no grounds to make an appeal and the Tribunal had no jurisdiction to hear it.

The Tribunal then went on to decide that, on the facts in this case, the starter did not see or hear the call of broken equipment, and therefore under the rules he had no obligation to recall the race. The Tribunal held that he did not give a direction or make a ruling, he simply let the race proceed. The Decision stated that the Judges ’ determination that interference occurred prior to the race, such that Chupacabra's standing was changed from 6th to 7th was not under appeal.

Finally, the Tribunal went on to find that it did not have jurisdiction to consider whether or not the appellant received a fair start in the horse race on August 1, 2010, as without a written ruling or direction of an official, there could be no appeal.

[ 11 ] Goertzen filed this application for judicial review and clearly in his written brief put at issue only one matter: whether or not a ruling or direction by a racing official must be in writing in order for the Tribunal to accept the appeal. [ 12 ] Goertzen has asked for an order declaring that the Tribunal has jurisdiction to hear appeals of rulings or directions made by racing officials whether or not they are in writing. He also seeks an order to set aside the Decision of the Tribunal and direct the Tribunal, or a different panel of the Tribunal, to reconsider the whole or any part of the matter. 3.

Issues [ 13 ] Did the Tribunal err in its decision that it did not have jurisdiction to hear an appeal of a ruling or direction made by a racing official that was not made in writing? [ 14 ] If so, what is the remedy? 4. Relevant Statutory Background [ 15 ] The Act sets up Horse Racing Alberta ("HRA"), which has a board of directors appointed from various representatives of horse associations and members of the public. The objects of HRA are set out in

section 4 of the Act : Objects The objects of the Corporation are the following: (

a) to govern, direct, control, regulate, manage, market and promote horse racing in any or all of its forms; (

b) to protect the health, safety and welfare of race horses and, with respect to horse racing, the safety and welfare of racing participants and racing officials; (

c) to safeguard the interests of the general public in horse racing. [ 16 ] HRA is given powers to require people to be licensed. It has powers to undertake investigations and make rules about the conduct of horse races, including items such as prohibited substances for horses, veterinary practices, the duties of racing officials and the governance of racing participants. [ 17 ] The sections of the Act relevant to this judicial review are: Right to appeal 24 Where a racing official makes a ruling or gives a direction, a person affected by that ruling or direction may appeal that ruling or direction to the Appeal Tribunal. Commencement of appeal 25

(1) A person who has a right of appeal may commence an appeal by serving on the Corporation, or on a person designated by the Corporation, a notice of appeal within 30 days from the day that the person receives written notification of the ruling or direction being appealed.

(2) On being served with a notice of appeal, the Corporation shall, within 10 days from the day of being served with the notice of appeal, deliver the notice of appeal to the chair of the Appeal Tribunal. Decision of Appeal Tribunal 26

(1) When the Appeal Tribunal hears an appeal, the Appeal Tribunal may, by order, do one or more of the following: (

a) dismiss the appeal; (

b) allow the appeal and give such directions, if any, that the Appeal Tribunal considers appropriate in the circumstances; (

c) vary the decision; (

d) prescribe terms and conditions to which its order is subject; (

e) make any other decision that in the opinion of the Appeal Tribunal is in the best interests of horse racing; (

f) award costs.

(2) The Appeal Tribunal shall notify the parties to the appeal and the Corporation in writing of the Appeal Tribunal's decision.

(3) Notwithstanding subsection (1), the Appeal Tribunal does not have the authority to order that a rule made under this Act be repealed, amended or otherwise varied. Judicial review 27

(1) Subject to subsection (2), no decision, order, directive, ruling or proceeding of the Appeal Tribunal shall be questioned or reviewed in any court by way of an application for judicial review or otherwise, and no order shall be made or process entered or proceedings taken in any court, whether by way of injunction, declaratory judgment, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain the Appeal Tribunal or any of its proceedings.

(2) A decision, order, directive, ruling or proceeding of the Appeal Tribunal may be questioned or reviewed by way of an application for judicial review seeking an order in the nature of certiorari or mandamus if the originating notice is filed with the Court of Queen's Bench and served on the Appeal Tribunal no later than 30 days after the date of the decision, order, directive, ruling or proceeding, or reasons in respect of it, whichever is later.

(3) The Court of Queen's Bench may, in respect of any application under subsection (2), (

a) determine the issues to be resolved on the application, and (

b) limit the contents of the return from the Appeal Tribunal to those materials necessary for the disposition of those issues. [ 18 ] Also pertinent to the appeal heard by the Tribunal are certain of the Division 6 Racing Rules which were in effect at the time of the August 1, 2010 race, specifically: 337 Starter's control

(1) the starter has control of the horses from the formation of the parade until a fair start has been determined.

(2) The determination of a fair start is signified by the word "go" announced by the starter at the starting point. 342 Recall Sounded The starter must sound a recall for the following reasons: (

b) There is interference before the word "go" is given; (

c) A horse has broken equipment, which the starter notices; 343 Action after recall ...

(2) There is to be no recall after the word "go" has been given to signal a fair start. 356 Dismissal of drivers after race At the conclusion of the race, each driver must return in their sulky to be dismissed by the judges board or their designate. 361 Broken equipment to be reported All broken equipment must be reported by the driver concerned to the paddock judge or starter who must make an examination to verify the report. 357 Starter to remain in starting gate After the conclusion of a race, the starter must remain in the starting gate until all drivers from that race signify, in a prescribed manner, that they have no complaint to lodge. 5.

The Standard of Review 5.1 The Law [ 19 ] In Dunsmuir v New Brunswick , 2008 SCC 9 at para. 1 , the Supreme Court of Canada attempted to clarify what they referred to as "the troubling question of the approach to be taken in judicial review of decisions of administrative tribunals." [ 20 ] Dunsmuir did away with the distinction between "patent unreasonableness" and "unreasonableness simpliciter ," such that the choice in undertaking judicial review is now one of reasonableness or the less deferential standard of correctness. [ 21 ] To further streamline or simplify the process of judicial review, a number of precepts are being developed, especially in

[ 21 ] To further streamline or simplify the process of judicial review, a number of precepts are being developed, especially in relation to tribunals interpreting the statutes that govern them, often referred to as the “ home statute. ” In ATA v Alberta (Information & Privacy Commissioner) , 2011 SCC 61 , [2011] 3 SCR 654 at para. 30 , the Supreme Court stated that [t]here is authority that "[d]eference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity" ( Dunsmuir , at para. 54 ; Smith v.

Alliance Pipeline Ltd. , 2011 SCC 7 , [2011] 1 S.C.R. 160 , at para. 28 , per Fish J.). This principle applies unless the

interpretation of the home statute falls into one of the categories of questions to which the correctness standard continues to apply, i.e., "constitutional questions, questions of law that are of central importance to the legal system as a whole and that are outside the adjudicator's expertise, ... questions regarding the jurisdictional lines between two or more competing specialized tribunals [and] true questions of jurisdiction or vires" ( Canada (Canadian Human Rights Commission) v.

Canada (Attorney General) , 2011 SCC 53 , at para. 18 , per LeBel and Cromwell JJ., citing Dunsmuir , at paras. 58, 60-61 ). [ 22 ] In its recent decision of P.A.L. v Alberta (Criminal Injuries Review Board) , 2012 ABCA 177 the Alberta Court of Appeal stated at para. 17: The selection of the appropriate standard of review involves two steps: first, ascertain whether the issue has been satisfactorily determined in existing jurisprudence; if not, proceed to analyze the relevant factors to identify the proper standard of review: Dunsmuir v New Brunswick , 2008 SCC 9 at para 62 , [2008] 1 SCR 190 [ Dunsmuir ] .

Those factors are: (

i) the presence or absence of a privative clause; (ii) the purpose of the tribunal as determined by

interpretation of enabling legislation; (iii) the nature of the question at issue, and; (iv) the expertise of the tribunal: para 64. 5.2 Has the Appropriate Standard of Review Been Previously Determined? [ 23 ] The first step is to determine whether the existing jurisprudence has already determined the appropriate standard of review. [ 24 ] Only three cases in which Tribunal proceedings have been reviewed by the Court were referenced by the parties. In Henessey v Horse Racing Alberta, 2006 ABQB 903 ; 50 Admin.

LR (4th) 203, Sandeman J. noted the following at para. 16: "the expertise of the Tribunal is much greater than that of the reviewing court when an assessment of their knowledge in relation to horse racing in the province is considered. Members of this tribunal have been appointed by the Minister to administer and regulate the horse racing industry in this province and it is expected that they would be well aware of the purposes and goals of the Horse Racing Act .

In everyday matters that affect horse racing in this province, the knowledge of the tribunal would be high." [ 25 ] Sandeman J. went on to note that where the issue was procedural fairness, the Court has greater expertise. Ultimately, having applied the four factors set out in Dunsmuir , Sandeman J. concluded that for the issue in that case (one of procedural fairness, arising from the destruction of a sample and thus reliance on a certificate of drug testing), the proper standard of review was correctness. [ 26 ] In Greenwood v Alberta (Appeals Tribunal) , [2003] A.J.

No. 471 ; 2003 ABQB 334 , the trainer of a horse which came second in a particular race lodged a claim of foul against the horse which won the race, alleging interference. The claim was made to the board of stewards before the results of the race were made official, but the board confirmed the original order of finish. Greenwood appealed the decision, but at the hearing before the Appeal Tribunal, his request to exclude the stewards during cross-examination of other stewards was denied.

The Tribunal dismissed his appeal, and Greenwood applied for judicial review on the grounds of bias and claimed that he was denied a fair trial by the Tribunal's refusal to exclude the witnesses. [ 27 ] Belzil J. determined that the issue before the Tribunal had been one of fact, not law, and that accordingly the standard of review should be that of patent unreasonableness (as this was a pre- Dunsmuir decision).

He considered whether the Tribunal had lost jurisdiction by reason of either a breach of the rules of natural justice or by apprehension of bias and concluded that it had not, noting that it was for the Tribunal to control its own procedures.

[28] In Sheckter v Alberta Racing Commission, [1983] A.J. No. 862; 1983 ABCA 123 , 43 A.R. 313 Kerans J.A., writingfor a three-member panel of the Alberta Court of Appeal did not directly address the standard of review, but commented that the courtshould not usurp the role given to the Alberta Racing Commission (now HRA), which was to determine what was in the best interests ofracing. [29] From reviewing these cases, it is clear that the standard of review in relation to this particular Tribunal has not been exploredin great depth, and only once post-Dunsmuir.

The Courts, both before and after Dunsmuir, have clearly favoured the standard ofreasonableness whenever the matter in issue has directly to do with horse racing.

Implicit in the Hennessey and Sheckter decisions,however, is that matters arising outside of that specialized context are due less deference, and may be judged on the basis of correctness. 5.3 The Four Factors Analysis [30] As the standard of review has not been satisfactorily determined in previous jurisprudence, an analysis in accordance with the"four factors" from Dunsmuir is necessary. 5.3.1 The presence or absence of a privative clause [31] The Tribunal's rulings are not protected by a privative clause.

Section 27 (2) of the Act specifically provides for a decision,order, directive, ruling or proceeding of the Appeal Tribunal to be the subject of judicial review. 5.3.2 The purpose of the tribunal [32] The purpose of the Act in general must be considered along with any particular provisions. Where the purpose of the statuteand the decision makers are conceived not so much as establishing rights between parties, but rather a delicate balancing betweendifferent constituencies, then the appropriateness of court supervision diminishes.

A polycentric issue (one that involves a number ofinterlocking or interacting interests and considerations) leans to deference. [33] Here, the purpose of the Act is to regulate and govern horse racing in Alberta, in all its various forms. 5.3.3 The nature of the question at issue [34] The issue under review is whether or not the Tribunal erred in finding it had no jurisdiction to consider the ruling or directionof a racing official when such ruling or direction is not in written form.

Thus the question relates to the right to appeal a ruling ordirection of an official, rather than the merits of the ruling itself. 5.3.4 The expertise of the tribunal [35] A court must also consider the expertise of the tribunal relative to the court’s expertise, in relation to the nature of the issuebefore the administrative decision maker. The criteria of expertise and the nature of the problem are closely interrelated. Once a broadrelative expertise is established, the court will often show deference.

In everyday matters of horseracing, the knowledge of the Tribunalwould be significantly greater than that of the court. However, the

interpretation of the wording of a statute would generally be more aquestion of legal knowledge and skill. 5.3.5 Conclusion on the Four Factors

[ 36 ] Having regard to the four factors, it seems as though the standard of review that should be applied when the Tribunal is making a purely legal determination is that of correctness, but any other decision, particularly those having to do with the conduct of the sport or business of horse racing in Alberta, should be evaluated on the reasonableness standard. 5.4 Is this a Question to Which Higher Deference should be Given? [ 37 ] As noted above, the Supreme Court in the ATA case warned that a tribunal interpreting its home statute closely connected to its function should receive deference, and thus a reasonableness standard of review is indicated.

This applies unless the issue is one that would mean a correctness standard would apply, such as constitutional questions, questions of law important to the legal system, or true questions of jurisdiction, such as determining jurisdictional lines between tribunals. [ 38 ] Is the issue under review one of statutory

interpretation affecting procedural rights under the HRA, or a "true question of jurisdiction? [ 39 ] The request for review has been framed as a question of jurisdiction. The matter arose, however, over an

interpretation of the procedural rules enabling the Tribunal to hear an appeal. [ 40 ] Rothstein J., writing for the majority of the Court in the ATA case, was emphatic that questions of jurisdiction should be looked at liberally, as there are only narrow categories that involve a true question of jurisdiction. Paragraph 34 of that decision reads: 34 The direction that the category of true questions of jurisdiction should be interpreted narrowly takes on particular importance when the tribunal is interpreting its home statute. In one sense, anything a tribunal does that involves the

interpretation of its home statute involves the determination of whether it has the authority or jurisdiction to do what is being challenged on judicial review. However, since Dunsmuir , this Court has departed from that definition of jurisdiction. Indeed, in view of recent jurisprudence, it may be that the time has come to reconsider whether, for purposes of judicial review, the category of true questions of jurisdiction exists and is necessary to identifying the appropriate standard of review.

However, in the absence of argument on the point in this case, it is sufficient in these reasons to say that, unless the situation is exceptional, and we have not seen such a situation since Dunsmuir , the

interpretation by the tribunal of "its own statute or statutes closely connected to its function, with which it will have particular familiarity" should be presumed to be a question of statutory

interpretation subject to deference on judicial review. 5.5 Conclusion as to the Appropriate standard [ 41 ] Although the Dunsmuir factors applied to this question under review would seem to point toward a correctness standard of review, I find that the decision of the Supreme Court in ATA suggests that reasonableness is the preferred level of review where, as here, a tribunal is interpreting its home statute. This is not an exceptional situation, nor is it a question of general law that is of importance to the legal system as a whole. The Tribunal ’ s

interpretation of its home statute should be subject to deference, and I conclude that the standard of review to be applied in this matter is one of reasonableness. 6. Applying the Standard of Review to the Decision [ 42 ] Having determined that reasonableness is the standard in this case, I then have to ask if the decision of the Tribunal is one of several acceptable

interpretations of the Act . Is their decision within a range of possible acceptable outcomes which are defensible in respect of the facts and the law? Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility

within the decision-making process. [ 43 ] The Decision, on page 5, states the issue as being whether the Tribunal has jurisdiction to hear the appellant's appeal as to whether or not Chupacabra received a fair start. This is not actually correct, the Tribunal has no inherent jurisdiction to review or look into whether there was a fair start in any given race. The right of appeal is only given to a person affected by a specific ruling or direction made by a racing official.

The Tribunal did not particularize the express rulings or directions that were being appealed; for example, the decision (or non-decision) of the starter to not recall the race or the direction of the judges to readjust results for interference. [ 44 ] The Decision is internally inconsistent. If the true intention of the Tribunal is that it has no jurisdiction to review a direction or ruling that is not in writing, then there was no reason in this case to review the evidence, make findings and hear submissions about the action of the starter and the broken equipment, as it in fact did.

In this case, there was never any suggestion the starter gave a direction or ruling in writing. Nevertheless, the Tribunal in its written decision looked at the evidence, weighed it and then at paras. 38.1 to 38.4 came to the conclusion that the starter did not make a ruling or give a direction.

This begs the question of how the Tribunal even has jurisdiction to enter into that analysis, if it cannot hear appeals from any but written directions. [ 45 ] In para. 38.8, of the Decision the Tribunal notes that the judges did make a ruling that "interference" infractions occurred prior to the race, such that they decided to alter the order of the finish. The Tribunal does not comment that the judges ’ decision would not have been reviewable, for lack of writing but, instead, concluded that it was not part of what had been appealed to the panel.

Again, this is wrong, as it was certainly specified as being one of the rulings or directions under appeal in the letter provided by Goertzen ’ s counsel on November 19, and it was set out as a ruling under appeal in Goertzen ’ s Notice of Appeal. [ 46 ] In para. 38.5 of the Decision the Tribunal first raises the issue of whether a ruling or direction has to be in writing to be appealable. It relies on s. 25 of the Act , which states that a person who has a right to appeal must do so within 30 days of receiving written notification of the ruling or direction that is the source of the appeal. The wording of this

section is the sole justification or reason given by the Tribunal as to why it may only hear appeals from written directions or rulings. Notably absent in the Decision is any policy- based discussion or reasoning that might lead to such a conclusion. The Tribunal does not discuss how written and non-written rulings fit into the scheme of horse racing.

Had the Tribunal discussed the rules, regulations and reality of horse racing, and pointed out that there are policy reasons that a starter ’ s or judge ’ s decisions, made during a race, should not be appealed after the race results have been finalized (analogous to a referee situation), then their conclusions might have been more understandable. [ 47 ] Further, the rules of statutory

interpretation applied to the sections outlining the rights of appeal in the Act would not support the conclusion the Tribunal reached. It is clear that s. 24 of the Act , which grants a substantive right of appeal to anyone affected by a ruling, makes no mention of written rulings.

Section 25, which is procedural rather than substantive in nature, merely provides that where a ruling is in writing, the time allowed to file an appeal is 30 days.

Section 26 of the Act is the provision that delineates the Tribunal ’ s powers. Nothing in that

section suggests that the Tribunal is limited, in carrying out its duties, by the form of rulings which are brought to appeal. The sole explanation the Tribunal gave for coming to its conclusion that all rulings or directions must be in writing was based on its

interpretation of a single

section of the Act . [ 48 ] It is also notable that the Tribunal ’ s decision that it could only hear appeals from written rulings is strictly obiter, as the only action the Tribunal reviewed was that of the starter, which the Tribunal found did not amount to a direction or ruling, such that whether it was in writing or not was not an issue. [ 49 ] It appears unreasonable to interpret the Act as giving a right of appeal to any person affected by a ruling, and then limiting the jurisdiction of the body that hears those appeals to rulings that have been reduced to writing.

This could conceivably create an absurd situation where any official, in order to insulate his ruling from appeal, could simply refuse to write it down or give written notice to those affected. [ 50 ] The Tribunal found that

section 26 of the Act states that the tribunal may hear an appeal and make a different decision, i.e. step into the role of the decision maker and arrive at its own decision. There is no relevant link between that observation (which is correct) and the question of whether or not a ruling or direction has to be in writing. [ 51 ] Finally, I note that the Tribunal made no mention of the fact that it has, in the past, taken jurisdiction and heard appeals of other rulings and directions which were not reduced to writing.

The HRA's brief contained one such decision, brought by one Albert Strumecki, appealing “ the Stewards decision to not allow an objection to stand with respect to alleged interference of the horse in a race

at Stampede Park on June 11, 2005. ” There is also a copy of a ruling enclosed in the materials provided by the Tribunal's solicitor having to do with Race No. 2 at Calgary Stampede Park on Friday, June 3, 1994 "in the matter of the horse "Master Elvis ’ ." This somewhat cryptic decision is half a page long and does not make any mention of whether the ruling or direction in issue was written or unwritten, but the opening sentence strongly supports an inference that the ruling in issue was not made in a formal, written manner: The Commission reminds everyone that it has often stated that when the Stewards are acting as umpires or referees in a sporting event, just like referees in hockey or other games, it would seldom set aside their value judgment unless there was evidence of corruption or new evidence that had been over-looked. [ 52 ] In the conclusion of the Decision, the Tribunal concluded that it did not have jurisdiction to consider the issue of whether or not the appellant received a fair start.

However, that sort of general question is not one that could ever be put to the Tribunal. It must insist that the specific rulings or directions being appealed from under s. 24 be identified, and then make its determinations in relation to those specific issues.

In the letter of September 24, 2010, the Tribunal requested that the ruling or direction under appeal be identified, and the letter from Goertzen's counsel did precisely that, yet nothing was ever done to itemize the exact rulings or directions from which the Tribunal would hear an appeal, even though the proceedings continued. [ 53 ] On a correctness standard, the Decision would not survive review due to the errors in statutory

interpretation. When I consider the analysis in paras. 43 to 52 above, I find that the decision of the Tribunal, that a ruling or direction must be in writing to be the subject of an appeal, is unreasonable. [ 54 ] In the interests of fairness and consistency, and given that nothing in the Act limits the Tribunal's jurisdiction to hear appeals only from written rulings, I find that the Tribunal has jurisdiction over all appeals from the rulings of racing officials, whether or not the ruling is in writing. 7.

Conclusion and Remedy [ 55 ] My conclusion is that the Tribunal does have jurisdiction to hear an appeal of a ruling or direction of a race official without regard to whether or not it is in written form. [ 56 ] As to the appropriate remedy, the Tribunal has already heard evidence and made decisions on that evidence. It found that there was no ruling or direction given by the starter, he did not sound a recall because he was not made aware of Chupacabra ’ s broken equipment. The Tribunal ’ s

interpretation of the rules is that the starter ’ s action (or non-action) was justified in the circumstances. That is a decision the Tribunal has made on the evidence based on factual findings, and not challenged in this review. [ 57 ] The tribunal did not deal with the ruling by the judges to change the order due to interference, or the conduct of the starter around the alleged interference with the gate. It must deal with these appeals, as they were identified before the Tribunal. [ 58 ] Accordingly, the matter should be returned to the same panel of the Tribunal.

Now that it is clear that a direction or ruling does not have to be in writing, the Tribunal must delineate exactly which rulings are under appeal, decide what (if any) additional evidence it needs to hear, and then make a clear decision in relation to each ruling or direction under appeal. Heard on the 17 th day of October, 2012. Dated at the City of Calgary, Alberta this 14 th day of December, 2012.

R.E. Nation J.C.Q.B.A. Appearances: Paul B. McKenna, McKenna Law Office for the Applicant Thomas R. Owen, Owen Law for the Respondent Steve T. Eichler, Field LLP for Horse Racing Alberta