HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Samuel Quaranta

Applicant

-and-

Ontario Racing Commission, Lynda Tanaka, Russell Fernades, John Blackney, Ed Hall and Brendan Niejenhuis

Respondents

Case Resolution Conference DECISION

Adjudicator: Maureen Doyle

Date: February 12, 2010

Citation: 2010 HRTO 249

Indexed as: Quaranta v. Ontario Racing Commission

Appearances By

Samuel Quaranta, Applicant ) self-represented

Ontario Racing Commission, Lynda Tanaka, ) Peigi Ross, Counsel

Russell Fernandes, John Blackney, Ed Hall )

and Brendan Neijenhuis, Respondents )

INTRODUCTION

1The applicant was a horse trainer, licensed by the respondent Ontario Racing Commission (ORC) at the time period relevant to the Application.

2The ORC is established by the Racing Commission Act, 2000, S.O.2000, c. 20, as amended (RCA). The Commission directs and controls horse racing in Ontario, and has the power to license owners, trainers, drivers, jockeys and other individuals in or about race tracks.

3The ORC fined the applicant and suspended his licence. He appealed this discipline to a Panel of the ORC in accordance with the RCA. The ORC temporarily stayed the penalties during the appeal process. During the course of the ORC proceedings the applicant requested an adjournment of the hearing as an accommodation of a disability. The ORC denied the adjournment.

4The applicant alleges the denial of the adjournment and the ORC determinations regarding penalties constitute discrimination on the basis of disability and reprisal in the area of employment.

5The respondents raised a number of preliminary objections to the Application. I heard argument from both parties at a Case Resolution Conference.

BACKGROUND

Proceeding before the ORC

6The ORC Panel commenced hearing the applicant’s appeal on March 30, 2005. The applicant completed his evidence on April 4, 2005 and a further continuation date was scheduled.

7On April 20, 2005, the applicant wrote to the ORC seeking an adjournment of the April 25, 2005 date as an accommodation of a disability. He provided a letter from his doctor in support of his request. An agent attended at the hearing on April 25, 2005 on his behalf, and requested an adjournment, providing a note from the applicant’s doctor. The note stated that the applicant was under the doctor’s care for a cardiac condition and would not be able to attend the continuation date of April 25, 2005. It also stated that the doctor expected that the applicant’s “medical condition will continue for at least another 4 to 6 months”. The doctor was not called to testify and the note was not formally entered as an exhibit.

8The ORC adjourned to May 6, 2005, peremptory on the applicant and lifted the stay of penalties until further order by the ORC on the resumption of the hearing. The ORC ordered that the applicant’s agent “shall arrange to serve all witnesses whom he intends to call with summonses to ensure their attendance at the continuation date”. With regard to the lifting of the stay of the penalty, the ORC noted that the applicant had been working at the racetrack and that it lifted the stay at that time as it was not clear from the medical information provided whether the Applicant was indicating that he was too sick to work at the racetrack as well as being too sick to attend at the hearing.

9The applicant then wrote to the ORC advising that he was appealing the order made on April 25, 2005 which lifted the stay and ordered a continuation date of May 6, 2005. He stated that “the stay of penalty was rescinded because of Samuel Quaranta’s disability, which now is a Human Rights issue.” He noted that he had requested:

on Monday April 25 – 2005 for an adjournment by (…) agent Eugene Trasewick on which he submitted evidence a medical letter from J.T. Palmer concerning Samuel Quaranta’s disability, I’m asking that the request be accommodated.

10The Director of Racing at the ORC wrote to the applicant on May 9, 2005, advising that once the ORC makes a decision, there is no further appeal process, but that he could apply for judicial review under the Judicial Review Procedure Act. The letter advised that, if the applicant chose to apply for judicial review, the ORC would complete its filings in a timely manner in order to permit the application to be heard as soon as possible. The letter also cautioned that if the applicant wished to pursue judicial review, he should act expeditiously as, if warranted, the ORC would bring a motion to dismiss for delay.

11The ORC appeal hearing continued on May 6, 2005. At that time, the agent for the applicant presented further medical documentation. He did not call the applicant’s doctor to give evidence. An undated doctor’s note, which was entered as an exhibit, indicated that the applicant had been diagnosed with a “significant left ventricle dysfunction due to the weakening of the heart” and that :

His exercise tolerance is significantly decreased since then. Due to his heart condition, I would suggest Mr. Quaranta not to do anything which could increase stress on his body and heart.

12The remaining documentation was a February 17, 2005 Doppler Echocardiography Report and an April 15, 2005 Heart Catheterization Report from Dr. Rokoss, indicating the applicant had

(…) cardiovascular risk factor…significant left ventricular systolic dysfunction with diffuse mild to moderate coronary artery disease. He has no flow limiting coronary lesions and should receive medical therapy for his artherosclerosis.

13The transcript of the May 6, 2005 proceedings indicates that the applicant’s agent presented the further medical documentation and submitted that it was

relevant to submissions that might be made at the conclusion of the case with regard to the suspension that was imposed when we were here last time, and I would like to proceed with the appellant’s case.

14According to the transcript of the hearing, the applicant’s agent made submissions at the May 6, 2005 continuation:

with regard to my client not appearing today, it could very well be that my client, for instance, has the flu and he just can’t come and he’s not up to coming, but you have before you significant medical evidence that my client has a medical problem. (…) He’s asking you to believe two doctors and a report and these kind of hearings probably cause him more tension than working on the backstretch where he’s much more comfortable after decades of working.

In my respectful submission, here’s a gentleman who has moderate hypertension, gets upset in this kind of hearing, came as best he could and, indeed, has carried on and has instructed me to come in here and continue.

15In addition to concluding that the evidence did not establish that the applicant was unable to attend the hearing, the Panel also concluded that the evidence did not establish that the applicant was too unwell to work as a trainer. The original stay was restored at that time, pending the Panel’s determination of the merits of the appeal. The applicant was permitted to continue to work as a trainer from May 16, 2005 to June 21, 2005, when the Panel released its reasons.

16The Panel had also heard submissions on whether the appeal had been frivolous and whether they should order costs, and ruled that the applicant’s conduct throughout the hearing had inordinately complicated the proceedings and had resulted in increased costs to the ORC in time and resources. Accordingly, the Panel imposed a further five day suspension from racing, which was to be imposed immediately, following which the stay of the earlier suspension was be reinstated (his next work day thereby being May 16, 2005).

17On June 21, 2005, the Panel released its written reasons. It dismissed the appeals and upheld the findings and penalties that had been imposed by the Board of Stewards, though it modified the penalty imposed by suspending the applicant for the remainder of the 2005 racing season (July 1 to December).

18The Decision noted that the Panel had lifted the stay on April 25, 2005 until the resumption of the hearing on May 6, 2005 and that it had ordered on May 6, 2005 that the stay would continue to be lifted until and including May 15, 2005, and that the stay was restored as of May 16, 2005, pending the release of the Panel’s decision. It noted that it had been asked to include in the calculation of the appropriate suspension the fact that the applicant had been suspended as a result of the adjournment of the hearing scheduled for April 25 to May 15, 2005. The Panel stated

We have decided that the suspension from July 1 to December 31, 2005 should be in addition to the suspension April 25 to May 15, 2005, which was imposed due to Mr. Quaranta’s unreasonable conduct with respect to the continuation of the hearing.

Judicial Review

19In July 2005, the applicant made an application to the Divisional Court for judicial review of the rulings made on June 21, 2005, citing several grounds. The stated grounds for the application for judicial review included:

• denial of natural justice to the applicant in that the commission denied a request for an adjournment of a continuation of the proceedings scheduled for April 25, 2005, based on properly supported medical grounds, resulting in his inability to exercise his fundamental right to make full answer by way of reply; and,

• the penalties imposed by the commission were unreasonably excessive and oppressive, and grossly out of proportion to the conduct of the applicant.

20On August 19, 2005, the applicant sought a stay of the penalties pending the results of the application for judicial review. The Divisional Court rejected the stay, finding that the ORC

decision falls far short of being patently unreasonable – indeed the evidence was carefully considered and the tribunal instructed itself appropriately” and that there was “no serious issue to be tried”.

21The applicant subsequently abandoned his application for judicial review.

PRELIMINARY OBJECTIONS

22At the Case Resolution Conference the applicant alleged that the respondents have continued to harass him as they have communicated with a racing commission in another jurisdiction regarding his status in Ontario.

23The respondents argued that this allegation amounted to an attempt to expand the subject matter of the Application and this was contrary to the provisions of s.53(3) of the Code.

24I agree that the allegations concerning communications with another racing commission are not part of the complaint as filed with the Human Rights Commission and therefore do not form part of the subject matter of this Application.

25The respondents submitted that the Application should be dismissed for one or all of the following reasons:

• Collateral attack;

• Estoppel;

• Abuse of process;

• s. 45.1 of the Code.

26The applicant submitted that the Application should not be dismissed.

DECISION

27The Application is dismissed. My reasons for this finding follow.

Respondents’ Position

28The respondents argued that the RCA gives the hearing Panel the right to manage the process, including making interlocutory orders for adjournment. The ORC decision at issue was a quasi-judicial decision made within the jurisdiction of the ORC. The respondents further submit that the Tribunal is bound by the finding of the Divisional Court that the Panel’s decision was not patently unreasonable and that the Panel instructed itself appropriately on all of the issues and evidence, and submit that the issues and evidence included the “applicant’s alleged disability”. The respondents further submitted that in this case, there is nothing in the Code to grant jurisdiction to the Tribunal to review a decision of the Divisional Court.

29In the circumstances the respondents submit section 45.1 applies to bar the Application as the human rights issues were appropriately dealt with by the ORC. The respondents submitted further that the Application should be dismissed as an abuse of process on the basis that the re-litigation of this matter would be detrimental to the integrity of the adjudicative process and the administration of justice.

Applicant’s Position

30By way of response, the applicant submitted that though he made application for judicial review of the ORC’s decisions, he was only able to do that after a final decision had been made and the request for accommodation had been refused. He submitted that an individual who spoke at the hearing regarding his medical condition was not qualified to do so, but that the Panel had decided to lift the stay. He submitted that at a minimum, the Tribunal can consider the Panel’s June 21, 2005 decision to impose an additional 5 day suspension. He noted that the May 6, 2005 hearing had gone ahead in his absence and argued that it must have only been a hearing into the matter of a co-appellant at that time.

ANALYSIS

31Section 45.1 of the Code provides as follows:

45.1 The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

32While the applicant has argued he was only able to have recourse to the Divisional Court after the ORC made its final decision and the request for accommodation had been refused, I do not find that this changes the nature of the considerations under s.45.1 for this Tribunal. In view of the legislative concern with duplication of proceedings, the question for this Tribunal continues to be whether there was a previous proceeding and if so, whether it appropriately dealt with the substance of this Application.

33The applicant has also submitted that the ORC made its decision to deny his adjournment request after having heard from someone who is not qualified to offer a medical opinion. Again, I do not find that this alters the nature of the considerations under s. 45.1. The questions appropriate to an interpretation and application of s.45.1 are the same: was there a previous proceeding and did it appropriately deal with the substance of the matter which the applicant now seeks to put before the Tribunal?

34The Tribunal’s jurisprudence has considered s. 45.1 in two parts, asking first whether there was another “proceeding” and then if so, whether it “appropriately dealt with” the substance of the Application. See Campbell v. Toronto District School Board, 2008 HRTO 62. In Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, 2008 HRTO149 the Tribunal identified the following principles to be applied to the interpretation of s. 45.1. They include:

Section 45.1 gives expression to a legislative intent to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere.

The discretion given to the Tribunal in s. 45.1 is at least as broad as the doctrines of issue estoppels and abuse of process.

In determining whether another proceeding has appropriately dealt with the substance of the application, the Tribunal need not be satisfied that it would have reached the same conclusion as that reached in the other forum.

Was the Previous Process a Proceeding?

35Turning to the first question, namely whether the previous process is a proceeding within the meaning of section 45.1, I am satisfied the hearing before the Divisional Court is a proceeding within the meaning of s. 45.1.

Did the Previous Proceeding Appropriately Deal with the Substance of the Application?

Are the Facts and Issues the Same or Substantially the Same?

36The applicant’s motion for a stay before the Divisional Court was brought as part of his application for judicial review, contesting the refusal of the adjournment request, sought for medical reasons, and challenging the extent of the penalties imposed upon him. Though the issue there was framed as a question of a denial of natural justice, and the applicant now frames his question as a denial of accommodation of a disability, the question of whether the ORC should have granted an adjournment given the applicant’s alleged ongoing medical issues is the same.

37Additionally, the applicant put before the Divisional Court the question of penalties imposed, which necessarily includes the fact that the stay was lifted and the ORC imposed a penalty. While the applicant submitted that at a minimum, the Tribunal can consider the Panel’s decision to impose an additional 5 day suspension, I find that as this suspension formed part of the June 21, 2005 decision which the applicant put to the Divisional Court, the matter of this additional penalty was also before the Divisional Court.

38The judicial review application included a challenge to the refusal of a further adjournment and the penalties imposed by the ORC. These are the same facts and issues the applicant seeks to have adjudicated before the Tribunal.

Was the substance of the Application “appropriately dealt with” in the other proceeding?

39In his application for judicial review, the applicant asked the Divisional Court to consider whether the refusal to grant the request for an adjournment was a reviewable error, as well as whether the penalties imposed were excessive.

40The Divisional Court has the jurisdiction and obligation to apply any relevant legislation, including the Code, to matters properly before it. While the wording of the endorsement by the Divisional Court refusing the motion for stay does not make direct reference to human rights issues, I am satisfied that the Divisional Court has appropriately dealt with the substance of the Application.

41I find that the litigation of this application would be a duplication of proceedings and would permit the re-litigation of issues that have been dealt with elsewhere. The applicant was dissatisfied with the decision of the ORC and took the appropriate steps to have the Divisional Court review it. In the course of those proceedings he put before the court questions which he now asks this Tribunal to consider. I find that this is the sort of duplication of proceedings which s. 45.1 seeks to avoid and that this is an appropriate case for the exercise of the Tribunal’s discretion to dismiss the Application pursuant to s. 45.1 of the Code.

ORDER

[42] Having found concluded s.45.1 applies to Application it is not necessary to consider the other arguments raised by the respondents. The Application is dismissed.