Court of Appeal decision comes after several reviews and court challenges
It’s a horse race of a different colour being played out in the Alberta courts – a contest over which thoroughbred won the 2017 Canadian Derby, Western Canada’s premier horse race.
The latest salvo is a court decision by the Alberta Court of Appeal this week dismissing an appeal made by the owners of Chief Know It All to reinstate the thoroughbred as the winner of the race.
And the race outcome, which has gone back and forth several times as it moved through the review and court system, may still be challenged. James McFadyen, the lawyer for Rollingson Racing Stables, owner of Chief Know It All at the time of the race, says he is seeking instructions on whether his client will appeal.
Chief Know It All was declared the winner over Double Bear in a tight race on August 19, 2017 in Edmonton, leading by half a length.
After the race, Double Bear’s trainer claimed to the Board of Stewards that Chief Know It All had interfered with his horse and that the interference stopped Double Bear from winning. That objection was challenged on the basis that Double Bear caused his problems by running up on Chief Know It All's left hind.
The Stewards disallowed the claim of foul and affirmed Chief Know It All as the winner.
However, the owners of Double Bear, Sycamore Stables, took the case to an appeal tribunal of Horse Racing Alberta, asking that it disqualify Chief Know It All. The tribunal reserved its decision on April 16, 2018, and released its ruling on July 4, 2018. It disqualified Chief Know It All, applying a section of the Horse Racing Alberta Act, and named Double Bear and Trooper John, who was in a dead heat with Double Bear, as co-winners of the race.
During that period between April 16 and July 4 one of the tribunal members had her membership rescinded. Rollingson applied for judicial review of the tribunal’s decision on the basis that it was void because the tribunal, with the departure of one of its members, did not have a quorum. It sought the reinstatement of the Board of Stewards’ decision that Chief Know It All was the winner.
Sycamore Stables also applied for a review of the tribunal decision, wanting the courts to overturn the ruling on the race outcome. It argued the incorrect remedial section of the Horse Racing Act had been used, and that Double Bear should be the sole winner, not tied with Trooper John.
The judge who heard the review held that the appeal tribunal reached an unreasonable conclusion about the race outcome. Instead, the judge declared Double Bear the sole winner, with Chief Know It All coming in second and Trooper John third.
The case then went to the Alberta Court of Appeal. Rollingson appealed, arguing the tribunal's quorum rules had not been met and that the Stewards' decision be reinstated.
However, earlier this week, the Alberta Court of Appeal dismissed Rollingson’s argument, saying the relevant section of the horse racing act could be interpreted to allow a former member to return to conclude a complaint that was already before the tribunal.
The purpose of the relevant section of the act is to enable tribunals to complete a proceeding they started before a tribunal member was terminated, the three-member appeal court panel said in its ruling. The panel, made up of Justice Peter Martin, Justice Ritu Khullar and Justice Dawn Pentelechuk, wrote that this purpose is frustrated if it is interpreted as permitting the terminated member to complete a proceeding “but not as conferring validity on the subsequent decision.”
The appeal court reinstated the tribunal’s decision to name Double Bear and Trooper John as co-winners. It ruled that if a terminated tribunal member is allowed to take steps to conclude a proceeding, "a necessary condition for the departed tribunal member to be able to effectively conclude the appeal was for her to count towards the quorum requirement."
Eugene Meehan, a veteran lawyer and appellate court watcher, says the issue of quorum is one that can frequently arise in administrative decision-making groups. While this is a "hyper-specific" example, he says the case could have wide application to a range of administrative bodies, especially on the matter of "what is the specific point in time that you need to have a quorum?"