Good Friday morning. First off let's talk briefly about yesterday big ruling out of the Ontario Racing Commission, which countermanded a decision made by Woodbine Entertainment Group to refuse entries from certain horses owned by certain owners.
Here is the complete text of the ORC ruling and I urge you to take the time to read it for reasons I'll now explain.
I am going to leave for another day- or maybe the next issue of the Horseman-- the merits of the ORC's decision. Today I want to talk about the language of the ruling itself. As part of my "day" job, I estimate I've read thousands of legal briefs and court orders and proposed regulations. I estimate I have sat in on hundreds of closing arguments and opening statements. I would like to think that I'm in the Top Ten in North America when it comes to evaluating the clarity, precision and ambiguities contained in a document written by and for lawyers and judges and litigants.
That said, the ORC order is by far the most poorly written document I have ever seen come from a court or judicial or administrative body. As I said, I'll discuss the merits later. I'm talking purely now about the language employed. Here are just a few examples-- one per page but there are more-- of sentences and phrases and concepts contained in the ruling that either make no sense, or are fatally ambiguous, or just plain silly.
Page 2: "Mindful of the decisions (in other cases), that burden is on the balance of probablity." What in the world does "balance of probability" mean? We aren't told.
Page 3: "The issue turns on principle not on determination of an issue of fact." Beware the lawyer, litigant or judge who claims he or she is acting on principle. And beware the "fact-finder" who does not find any facts.
Page 4: "Having not detailed the evidence, as finder of fact it is important to record impressions of the applicants and their evidence. Individually and as a group they presented as honest, truthful and reliable, if somewhat chagrined upon finding themselves without notice or fault in this predicament. A situation to be lamented." Lamented by whom? Certainly now WEG.
Page 5: "Turning away from WEG's stated reason for the suspensions and looking to a muted reason..." If anyone out there has ever known a "muted reason" by all means let me know.
Page 6: "Once again, the Panel affirms that in horse racing, WEG is 'King' That premise invites two historical references" whereupon the ORC then cited the signing of the Magna Carta in 1215 and the Salem witch trials in Massachusetts in 1692. After that bizarre and wholly inapt comparison, the ORC then wrote: "Lessons long ago learned, with merit tempered by the ages, and not for casual discard." That last sentences ranks among the most inane in modern human history.
Page 7: "There can be no public interest in permitting overzealous tactics in the war against illegal substances to ride roughshod over the rights of licensees who have done nothing wrong. That is too close to the trial of Jesus and Pontius Pilate's declaration...." There you have it, folks, the ORC playing the Jesus Card in a case about Bill Elliott's horses.
Page 8: "With that extensive passage of time, is selection of April 14, 2008 as the effective date, rational or arbitrary? That date selection governs the identity of the owners in the stable at that time and so to be penalized. Arbitrary selection of the date ensures imposition of penalty by caprice." Huh?
Page 9: "As has been often observed in ORC Reasons for Decision, EPO/DPO is a grave threat to racing. Countermeasures are to be supported but not at the expense of fundamental principle..... Regulation lacking procedural fairness would be a total failure to comply with the standard of honesty, integrity and social responsibility." Funny, I thought "social responsibility" has to do with socialized medicine up in Canada.
Page 10: "If consequences are to be borne, the inference may fairly be properly drawn that 'behavior' means 'improper behavior.' This must be." This must be English, I guess, but I still don't understand what it means.
Page 11: "Any such action could be introduced only after prelimimary review by the entire industry. Undoubtedly this would be a convulsion followed by a wild free for all, there being no industry shortage of opinions or able orators." Undoubtedly.
I'm usually a big fan of the ORC. And as a supporter I will only add this: time to invest in a legal writing course.
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