The Ontario Superior Court of Justice has confirmed that an injunction, obtained on short notice, can be set aside where the respondent shows that if it had been provided with an opportunity to file evidence and make submissions at the original hearing, the injunction would never have been issued.
The applicant was a trainer and owner of racehorses. He entered some horses into races at Kawartha Downs racetrack, a facility that is supervised by the respondent Ontario Racing Commission. The applicant became upset when one of his horses was disqualified because it was brought to the paddock late. When another of his horses won a subsequent race, he threw what the court described as “a temper tantrum” in the winners’ circle. He made obscene gestures and swore at the judges. This behavior took place in full view of the spectators at the track, and was also captured on television.
The Racing Commission judges at the track that day suspended the applicant from racing until a hearing regarding his conduct could be held.
Rather than wait for the hearing, or pursuing grievance procedures available to him under the Racing Commission Act, the applicant went to court for an interlocutory injunction. He gave the respondent Racing Commission only 90 minutes notice. The Commission was not able to respond, and the interlocutory injunction was issued based on materials filed by the applicant and on submissions made by his lawyers only. The judge hearing the motion for the interlocutory injunction stayed the revocation of the applicant’s racing licenses and allowed the applicant to enter his horses into races until the next return date of the motion.
When the motion came on for hearing again, the respondent asked that the interlocutory injunction be set aside. Mr. Justice Parayeski noted that the affidavit filed by the applicant at the time the injunction was issued was selective as to the facts that were disclosed to the court. He stated that before an interlocutory injunction can be granted, the applicant had to show that:
- there is a serious issue to be tried;
- he will suffer irreparable harm if the injunction is not granted; and
- the balance of convenience is in favour of granting the injunction.
On the question of whether there was a serious issue to be tried, the court found that the application was premature in that the applicant had not sought the administrative relief that was available to him under the legislation that governed horseracing in Ontario.
Another factor affecting the court’s determination of whether or not there was a serious issue to be tried was the fact that the applicant admitted that his conduct was a breach of the Commission’s rules. Thus the only issue was penalty, and suspension of the applicant’s participation in racing is a penalty that is available under the relevant legislation. Case law is clear that deference is owed to decisions made by the Commission in its efforts to regulate the racing industry.
On the question of irreparable harm, the applicant’s lawyer argued that interruption of the applicant’s ability to race horses and earn a living automatically constitutes irreparable harm. The court disagreed. The suspension was not permanent. Losses of income resulting from the suspension would be calculable and compensable, and thus were not truly irreparable.
On the balance of convenience, Mr. Justice Parayeski said that he had to weigh an interruption in the applicant’s livelihood against the authority and ability of the Commission to manage racing in the public interest. He found that the inconvenience to the Commission outweighed the admittedly serious consequences of the suspension for the applicant.
In conclusion, Mr. Justice Parayeski found that the interlocutory injunction ought not to have been granted, and that it would not have been granted if the Commission had been given an opportunity to present evidence and argument on the original return date. He set the injunction aside.
Link: Waxman v. Ontario Racing Commission, 2011 ONSC 1908 (CanLII)
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