COURT FILE NO.: 703/01

DATE: 20030505

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

LANE, J. MACDONALD and CULLITY JJ.

IN THE MATTER OF the Judicial Review Procedure Act, R.S.O. 1990, c. J1

IN THE MATTER OF the Racing Commission Act, R.S.O. 1990, c. R.2

AND IN THE MATTER OF the Racing Commission Act 2000, S.O. 2000, c. 20

B E T W E E N:

JACK HARRIS

Mr. Arlen K. Sternberg, for the Applicant

Applicant

• and -

THE ONTARIO RACING COMMISSION

Mr. Don Bourgeois, for the Respondent

Respondent

Heard: March 13, 2003

REASONS FOR JUDGMENT

J. Macdonald J.:

[1] The applicant, an owner, driver and trainer of standardbred horses, seeks judicial review of the respondent’s decision to suspend him from racing for 74 days and to fine him $1,000.00. This penalty was imposed as a result of an equine drug violation on October 30, 1999.

BACKGROUND FACTS

[2] This court quashed the respondent’s first penalty decision and remitted the matter for a rehearing. The rehearing resulted in the decision now in issue. The first penalty decision was a suspension of 60 days and a fine of $4,000.00. Both of the respondent’s hearings were by way of appeal from the penalty imposed by the judges at the racetrack where the offence occurred.

[3] The respondent’s new Guidelines of Penalties for Equine Drug Offences came into effect on July 15, 1999. The Guidelines provide a range of penalties, in some cases minimum penalties, based on the class of equine drug involved and whether the offence is a first, second, third or fourth offence.

[4] There is some significance to the dates of the applicant’s various equine drug offences in relation to the date when the new Guidelines came into effect. The relevant dates are as follows:

First offence: June 4, 1998.

Second offence: June 10, 1998.

Third offence: May 17, 1999.

New Guidelines into effect: July 15, 1999.

The offence in issue: October 30, 1999.

[5] It will be seen that the respondent’s three prior equine drug offences occurred before the new Guidelines came into effect. The offence in issue is the first offence after the new Guidelines came into effect.

[6] All three prior offences resulted in the respondent being penalized. However, the suspensions imposed in respect of the offences of June 4, 1998 and June 10, 1998 were served concurrently.

[7] In its first penalty decision respecting the offence in issue, the respondent treated the offences of June 4, 1998 and June 10, 1998 as if they were one offence. Consequently, for the purpose of the first penalty decision herein, the respondent held that there were two offences prior to the offence in issue. The respondent therefore treated the offence in issue as the respondent’s third offence for the purpose of applying the new Guidelines.

[8] In quashing the first penalty decision respecting the offence in issue, this court held that the new Guidelines did not apply retrospectively. The respondent erred in treating offences which occurred prior to the new Guidelines coming into effect as resulting in the offence in issue being a third offence, for the purpose of applying the new Guidelines.

[9] This court held that, while the offence in issue is a first offence for the purpose of applying the new Guidelines, the respondent nonetheless is entitled, in determining penalty, to take into account offences committed prior to the new Guidelines coming into effect. In addition, this court held that the respondent is not bound to impose a penalty in the range mentioned in the new Guidelines.

[10] The offence in issue involved a Class V equine drug. Treating it as a first offence for the purpose of applying the new Guidelines, the Guidelines suggest a suspension from 15 to 74 days duration and a $1,000.00 fine.

THE ISSUES

[11] The applicant’s first submission is that he was denied procedural fairness. He submits that an agreement was reached between his then counsel and the counsel representing the administration arm of the respondent that the facts and factual findings from the first of the respondent’s penalty hearings herein would apply to the second hearing. In its second penalty decision herein, the respondent treated the offences of June 4, 1998 and June 10, 1998 as separate offences, so that the appellant had a record of committing three prior offences instead of two. The applicant submits that he did not have a fair opportunity to address this change because of the agreement about fact findings.

[12] As this court held in remitting this matter, the respondent was entitled to exercise discretion within its expertise. If counsel did agree to accept the findings of fact made on the previous occasion, the agreement could not bind the respondent in its adjudicative function unless the panel which made the second penalty decision was informed of and concurred in what counsel decided. The record does not indicate that any such agreement was accepted by the panel of the respondent which made the second penalty decision. Nor do I believe that this should be inferred from its reliance on the evidence given at the earlier hearing.

[13] In any event, I do not think it is correct that, at the first penalty hearing, the respondent found as a fact that there were only two prior offences. I recognize that the respondent described its conclusion in this regard as a fact finding. However, that conclusion was not a finding of fact. That conclusion resulted from the panel applying its decisional discretion to the facts as found. These facts included the applicant’s admission that he had committed three prior offences, resulting in three suspensions. The respondent decided that, in applying the new Guidelines, it would treat two of these prior offences as one, so that the applicant had a record of two prior offences.

[14] This exercise of decisional discretion likely was based on the short period of time between the two offences, the concurrency of the resulting periods of suspension and the respondent’s professed desire, at the first hearing, to impose a minimum penalty for what it then regarded as a third offence under the new Guidelines. If the respondent had regarded the offence for which it was imposing a penalty as the applicant’s fourth offence for the purpose of applying the new Guidelines, the minimum penalty under the new Guidelines would have been a 1 year suspension. The respondent’s decision to treat two admitted prior offences as if they were one for the purpose of applying the new Guidelines brought a lower range of penalties into consideration. The penalty imposed at the first hearing of a 60 day suspension and a $4,000.00 fine was the minimum penalty suggested by the new Guidelines for a third offence.

[15] I am satisfied that, at the rehearing, the respondent was entitled to accept the undisputed evidence that the applicant had been found to have committed three prior offences and I find that in doing so, the respondent did not deny procedural fairness to the applicant.

[16] The applicant’s second submission is that the penalty imposed was unreasonable. The applicant has filed brief reports of numerous decisions of the respondent and its judges. He argued on this basis that the penalty in issue is excessive. In these brief reports, there is little or no information of the circumstances of either the offence or the offender. I am not satisfied that we have adequate or accurate information as to whether there is any record of prior offences for the offenders who are the subject of these decisions. I am also not satisfied that we have adequate or accurate information about other circumstances which may have affected these decisions. I therefore conclude that these brief reports are not a proper basis for comparing the penalty imposed on the applicant and the penalties imposed on others.

[17] The new Guidelines themselves are some indication of the appropriate level of penalty. The respondent has not departed from the range of penalties suggested by the new Guidelines for a first offence committed with a Class V equine drug.

[18] The applicant has placed some emphasis on the respondent’s view, expressed at the first penalty hearing, that the penalty herein should be a minimum penalty. The penalty imposed in the second penalty hearing is not a minimum penalty. It is the highest penalty which is within the Guidelines for a first offence committed with a Class V equine drug. In my opinion, there are three reasons why this factor does not make the penalty excessive, unreasonable or unfair.

[19] First, while this is the highest penalty which is within the Guidelines for a first offence committed with a Class V equine drug, the respondent clearly was entitled to exceed the range of penalties set out in the Guidelines, in appropriate circumstances. Consequently, the penalty imposed is not the maximum penalty that could have been imposed, which penalty should be reserved for the worst offence committed by the worst offender. That view of the range of possible penalties helps to put this penalty in context.

[20] Second, in redeciding the penalty, the respondent was required by this court to regard the offence in issue as a first offence for the purpose of applying the new Guidelines. As a result, there was a new and substantially different consideration in the second penalty hearing. The minimum one year suspension for a fourth offence, mentioned in the new Guidelines, was no longer a reason for treating two of the applicant’s prior offences as one.

[21] Third, the new Guidelines provide that, for Class V equine drug offences, the highest penalty for a first offence may exceed the minimum penalty for a third offence. The Guidelines themselves provide the respondent with substantial discretion, to ensure that any penalty fits both the offender and the offence. This a further indication that the penalty in issue is not unreasonable.

[22] In my opinion, the respondent has complied with this court’s ruling in re-deciding the penalty. I see no basis for concluding that the penalty is unreasonable. It follows that it is also not patently unreasonable.

[23] The same panel of the respondent presided at both of the applicant’s penalty hearings. The applicant has not raised this as a ground for judicial review in either his Notice of Application or in his factum. This issue was raised briefly during argument but was not pursued seriously by counsel.

ORDER

[24] The application for judicial review is dismissed. If the parties are unable to agree on costs, they may make submissions in writing. The respondent’s submissions shall be delivered within 10 days and the applicant’s submissions shall be delivered within 20 days of the release of these reasons.

J. MACDONALD J.

LANE J.

CULLITY J.

Date of Reasons for Judgment: May 1, 2003.

Date of Release: