COURT FILE NO.: 629/02

DATE: 20040416

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CUNNINGHAM a.C.J., THEN, and SWINTON JJ.

B E T W E E N:

WILLIAM ROBINSON

Applicant

• and -

THE ONTARIO RACING COMMISSION

Respondent

Arlen K. Sternberg and Andrew Gray, for the Applicant

Jill Dougherty, for the Respondent

HEARD at Toronto: March 4, 2004

Swinton J.:

1The Applicant, William Robinson, seeks judicial review of the penalty imposed upon him by a panel of the Ontario Racing Commission dated September 6, 2002.

Facts

2The Applicant is a full-time professional horse trainer, licensed by the Ontario Racing Commission. He has been a very successful trainer for many years and trains many horses at any given time. In his best years, he would have approximately 50 horses in his care at a given time. His stable, Robinson Stables, employs a number of other trainers.

3The Ontario Racing Commission regulates the conduct of horse races and the individuals who participate in racing as owners, trainers, drivers, grooms and jockeys. The Commission is responsible for promulgating and administering the Rules of Standardbred Racing. These rules provide for judges, exercising power delegated by the Commission, to make decisions with respect to a trainer’s responsibility for a positive drug test. They determine whether, on the information available to them, the trainer of record is responsible for a positive drug test and, if so, what penalty to impose.

4On February 26, 2000, following a race at Woodbine Racetrack, one of the horses trained by Robinson Stables, ARTISTIC, tested positive for an allergy medication. Under the Commission’s New Guidelines of Penalties for Equine Drug Offences, which came into effect July 15, 1999, the particular drug is classified as a Class III drug. There is no prohibition on administering this drug to a horse. However, the horse is not allowed to have more than a certain level of the drug in his system at the time of a race. The medication had been administered to this horse on the advice of a veterinarian.

5Mr. Robinson did not have any personal involvement in the administration of the drug, as he was in Florida at the time. Another trainer at Robinson Stables was looking after the horse, and he was disciplined in respect of the positive test.

6In the initial hearing, the Commission judges found that Mr. Robinson was the trainer of record of ARTISTIC, and, therefore, he was responsible for the rule violation in respect of this positive test. Before this test, Mr. Robinson had nine other positive drug tests in many thousands of starts.

7The Guidelines provide for a graduated penalty structure that takes into account the class of drug and the number of drug offences in the last three years. The judges concluded that the Penalty Guidelines were to be applied retroactively. They treated Mr. Robinson as a fourth offender, since he had had three offences involving Class II and III drugs in the previous three year period. The penalty prescribed by the Guidelines for a fourth offender was a minimum penalty of two years’ full suspension and a fine of $20,000.00. Therefore, the judges ordered a two year suspension and a fine of $25,000.00.

8An appeal was taken to a three member panel of the Commission, which proceeded by way of hearing de novo. The appeal was dismissed and the penalty affirmed. In the course of its reasons, the panel concluded that Mr. Robinson was the trainer of record, and he remained responsible for the acts of his employees.

9Mr. Robinson launched an application for judicial review. Subsequently, the Divisional Court in Harris v. Ontario Racing Commission (2000), 141 O.A.C. 20 held that the Penalty Guidelines have no retroactive effect. On January 24, 2001, the Divisional Court ordered a stay of the Robinson penalty in light of the Harris decision. Subsequently, Mr. Robinson’s application for judicial review was allowed on consent. The initial penalty was quashed, and a re-hearing of the issue of penalty was ordered. By this time, Mr. Robinson had served almost four months of the suspension.

10On the morning of the rehearing, August 28, 2002, Mr. Robinson and the Director of Racing and the legal counsel for the Commission Administration agreed on the terms for settlement of the matter. The rehearing was to take place before two of the three members of the original panel, as one member was no longer a commissioner.

11After Mr. Robinson agreed to the settlement, he was informed that the panel must approve the settlement. The panel was then informed of the terms of the settlement and the reasons why they should approve it. In his remarks, Don Bourgeois, counsel for the Administration, stated that the parties had a “joint submission to settle the matter”. The proposed terms were that Mr. Robinson would serve a further three months of suspension, in addition to the just under four months which he had served, and pay a fine of $75,000.00.

12Counsel for Mr. Robinson described this to the panel as a “joint settlement”, which was a compromise. He stated that he would have asked for a lighter penalty, had the hearing proceeded. The Chair, Mr. Sadinsky, then asked about Mr. Robinson’s penalty history.

13After considering what they had heard, the panel stated,

You are going to have to convince us that this is an appropriate penalty in these circumstances. Given the record of Mr. Robinson, three months in addition to the three months and three weeks already served, amounting to just under seven months.

Mr. Sadinsky also said, “And I am concerned about the suspension, the length of suspension part as opposed to the fine” (p. 9).

14Counsel then made further submissions to the panel. After a further adjournment, the panel returned and stated that they were not prepared to accept the joint submission. Mr. Sadinsky went on to say (at p. 27),

We are not satisfied without hearing the evidence that it is an appropriate penalty. It is possible that after hearing any evidence and submissions, full submissions on sentence, that we could be convinced of it, but on the basis of a joint submission at this stage, we are simply not convinced.

He went on to state that the Commission had accepted joint submissions on numerous occasions, and would only reject a joint submission in extraordinary circumstances. However, in this case, the panel had sufficient concerns that it was not prepared to accept the settlement at this stage.

15Counsel for Mr. Robinson then objected to the further participation of the panel members in the determination of the penalty, on the basis that they had essentially been involved in settlement discussions. An adjournment was then granted so that he could prepare submissions on this issue.

16At the resumed hearing, counsel for Mr. Robinson argued that the panel should not proceed to hear evidence with respect to the penalty, as this would give rise to a reasonable apprehension of bias, because the panel knew the terms of the settlement. During submissions, the Chair, Mr. Sadinsky, stated (at p. 47),

And I said to you last day that after hearing the evidence in full, on penalty and submissions, we may well be convinced that that or some other position, higher or lower, is the appropriate penalty in this case.

17The panel rejected the Applicant’s submissions that it should not determine the matter and proceeded to hear evidence and submissions with respect to an appropriate penalty over the course of two days. Counsel for Mr. Robinson argued that since this was a first offence, the Penalty Guidelines provided for a penalty of a 75 day suspension and a fine of $1,500.00. However, the panel imposed a suspension of 10 months less time served and a fine of $50,000.00. In its reasons, it set out the mitigating and aggravating factors which led to its determination. The panel stated at p. 3 of the reasons that it had considered the following:

I. This offence is to be treated as a first offence under the New Guidelines;

II. Robinson did not actively participate in nor have knowledge of the administration of the drug to ARTISTIC and is only liable under the ‘trainer responsibility’ rule;

III. The drug was a Class III anti-allergy medication prescribed by a veterinarian and was not designed to enhance the performance of the horse;

IV. Robinson’s overall record of positive tests, particularly the number between 1997 and 2000. (Robinson did not train in 2001);

V. Robinson has already served just under 4 months of his penalty;

VI. Robinson was unable to race at the Woodbine tracks for a time under Woodbine’s policies or had to race his horses out of detention; and,

VII. Robinson has had no positive test results since February, 2000.

18Mr. Robinson then sought judicial review of the decision on three grounds: the Commission’s refusal to disclose its judges’ penalty rulings was a denial of procedural fairness and natural justice; the hearing by the Commission panel which had rejected the settlement gave rise to a reasonable apprehension of bias; and the penalty was patently unreasonable in the circumstances.

The Standard of Review

19When the Ontario Racing Commission is acting within its jurisdiction, the appropriate standard of review is patent unreasonableness (McNamara v. Ontario (Racing Commission) (1998), 1998 7144 (ON CA), 164 D.L.R. (4th) 99 (C.A.) at paragraph 33). However, where a party alleges that there has been a denial of procedural fairness or a breach of the rules of natural justice, the court determines whether the duty of fairness has been observed in the circumstances of the case (Megens v. Ontario Racing Commission (2003), 2003 26509 (ON SCDC), 64 O.R. (3d) 142 (Div. Ct.) at paragraph 12).

The Refusal to Disclose

20In preparation for the rehearing, Mr. Robinson requested the Commission to disclose all of its judges’ penalty rulings under the Penalty Guidelines from July 15, 1999 to August, 2002. Although the appellate panel rulings are available on Quicklaw, the judges’ rulings are only available from the Commission. Counsel stated that there are 50 to 100 rulings by judges each year in relation to drug-related offences. Apparently, summaries of the rulings are also available from Standardbred Canada, but the Applicant takes the position that he was not notified of this source prior to the rehearing, and, in any event, Standardbred Canada does not make the necessary information available to the public and publishes only brief summaries.

21The Commission refused to provide access to the judges’ rulings. In advance of the rehearing, Mr. Robinson brought a motion for disclosure. The Chair of the panel dismissed the motion, primarily on the basis that these other penalty rulings were not sufficiently relevant.

22The Applicant now argues that the refusal to disclose the judges’ rulings denied him an opportunity to make full answer and defence and thus was a denial of procedural fairness and natural justice. More precisely, he argues that he was denied an opportunity to make submissions on the basis of the sentencing principle that similar cases should be treated similarly, in that he was unable to review the other penalties and to know the offence histories of the individuals disciplined.

23The penalties in comparable cases are a relevant consideration in determining the appropriate penalty (see, for example, Law Society of New Brunswick v. Ryan (2003), 2003 SCC 20, 223 D.L.R. (4th) 577 (S.C.C.) at paragraphs 58-60). An individual charged with a disciplinary offence is entitled to access to other penalty decisions of the tribunal made in similar cases, so that he may direct submissions to consistency in sentencing.

24However, in this case, the decisions of relevance to the Applicant were decisions of the panels of the Commission, rather than those of the racetrack judges. The panels exercise a supervisory jurisdiction over the judges, and they are not bound by the decisions of the judges in determining an appropriate penalty. The panel decisions were available on Quicklaw, although at the time of the rehearing, there was no panel decision on the penalty for a first offence with a Class III drug.

25Moreover, when a different panel of the Divisional Court was presented with reports of the decisions of racetrack judges and asked to consider them in determining whether a penalty was unreasonable, the Court observed that the lack of information in the reports about the circumstances of the offence and the offender rendered them unhelpful in determining whether a particular penalty was excessive (Harris v. Ontario (Racing Commission), [2003] O.J. No. 1743 at paragraph 16).

26I conclude that the lack of disclosure of the judges’ rulings did not prevent the Applicant from presenting his case, and there was no denial of procedural fairness.

The Commission’s Rejection of the Settlement Proposal

27The Applicant argues that disclosure of the settlement proposal to the panel prejudiced his ability to advocate a contrary position at the penalty hearing. He pointed to Rule 5.8(2) of the Commission’s Rules of Procedure, which provides that unless the party consents, “statements made for the purposes of settlement, and statements made ‘without prejudice’, shall not be revealed at the hearing by any party and shall not be communicated to the member presiding at the hearing”. Those rules also prohibit a commissioner who presides at a pre-hearing conference at which settlement is discussed from then presiding at the hearing on the merits. Therefore, he argued, the participation of the panel members gave rise to a reasonable apprehension of bias.

28This is not a case where the disclosure of the settlement to a member of the Commission occurred as part of a pre-hearing conference. Therefore, Rules 5.6 to 5.8 are not applicable. In this case, the panel of the Commission was seized with the issue of penalty, given that the Divisional Court had ordered the issue of penalty back to it. Therefore, the panel was required to approve the terms of the settlement and, in so doing, to consider whether the public interest was served by the penalty proposed. It should have been clear to counsel for both the Applicant and the Administration that there was a risk that the proposed settlement would be rejected.

29The Supreme Court of Canada has recently commented on the proper test to be applied in determining whether there is a reasonable apprehension of bias on the part of an adjudicator. In Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, the Chief Justice first observed, “The essence of impartiality lies in the requirement of the judge to approach the case adjudicated with an open mind” (at paragraph 58). She then quoted from the test enunciated by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board, 1976 2 (SCC), [1978] 1 S.C.R. 369:

… the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision maker] whether consciously or unconsciously, would not decide fairly (at paragraph 60).

30The Applicant relies on the practice of the Ontario Securities Commission to argue that the practice of the Ontario Racing Commission gives rise to a reasonable apprehension of bias. According to the Ontario Securities Commission Rules of Practice, a hearing panel will not generally consider a proposed settlement once the hearing has commenced, unless the parties consent (s. 5(2)). However, the fact that another tribunal, such as the OSC, uses a different approach with respect to approval of settlements does not negate the approach used by the Ontario Racing Commission. The question to be determined here is whether a reasonable apprehension of bias arises on the facts of this case, because the panel proceeded with the penalty hearing, knowing of the proposed settlement.

31In this case, the panel made it clear to counsel that it had concerns about the reasonableness of the penalty and asked for evidence and submissions to support the proposed penalty. The Chair expressly stated that the panel members had an open mind and were open to persuasion as to whether the proposed penalty - or a lighter or heavier one - was appropriate. While the Applicant takes the position that he was then prejudiced in his ability to argue for the first offence penalty in the Guidelines, he must have known, given his past record of offences, that his conduct would be treated as deserving of a penalty higher than that set out for a first offender.

32The situation here is analogous to what occurs in a criminal trial when there is a joint submission on sentence. A trial judge need not accept the joint submission, although he or she must give it serious consideration (R. v. Rubinstein (1987), 1987 2834 (ON CA), 41 C.C.C. (3d) 91 (Ont. C.A.) at p. 94). Moreover, the judge must give the parties a fair opportunity to meet his or her concerns about the sentence (R. v. Dewald (2001), 2001 4721 (ON CA), 156 C.C.C. (3d) 405 (Ont. C.A.) at paragraph 40; R. v. Tkachuk (2001), 2001 ABCA 243, 159 C.C.C. (3d) 434 (Alta. C.A.) at paragraph 32).

33In this case, the panel, after hearing the terms of the settlement and the parties’ submissions, was not satisfied that the public interest was adequately protected by the length of suspension proposed. The panel Chair made it clear that the panel was willing to be persuaded about the appropriateness of the penalty. The parties were then given an opportunity to address the panel’s concerns, and presented evidence and further submissions. In my view, a reasonable person, properly informed, would not conclude that the panel would be likely to decide unfairly. Therefore, I conclude that there was no reasonable apprehension of bias because of the panel’s knowledge of the settlement.

Was the Penalty Patently Unreasonable?

34The Applicant also argues that the penalty imposed was unreasonable or patently unreasonable, as the suspension was four times that prescribed in the Penalty Guidelines and the fine is over 30 times the amount in the Guidelines for a first offence. He also argues that the panel failed to give adequate weight to mitigating factors, such as the fact that he played no part in administering the drug to the horse. He also argues that the Commission failed to determine the consistency of the sentence with that imposed in other cases.

35A reading of the panel’s decision makes it clear that they considered the mitigating factors set out in their reasons. However, they appear to have been particularly concerned about Mr. Robinson’s past record. In their reasons, they state (at p. 3),

While Robinson’s overall number of positive tests is small in relation to his number of starts over 33 years, in the period 1997 to 2000 he had 5 positive test results. This is a significant number of positives and indicates that either Robinson was “pushing the envelope” or that he had lost some degree of control over his operation.

36The Divisional Court in the first Harris decision (Harris, 2000, supra), held that the Penalty Guidelines did not have retroactive effect. Nevertheless, it held that the Commission may exercise discretion within its expertise in determining an appropriate penalty. Lang J. stated, “In exercising that discretion, the Commission may, and should take prior offences into account” (at paragraph 6). She also observed that the Commission, in applying the new guidelines, could impose a penalty at the high end of the range, or even beyond the range in appropriate circumstances. In the second Harris decision (Harris, 2003, supra), the Court again observed that the Commission could exceed the range of penalties set out in the Guidelines in appropriate circumstances (at paragraph 19).

37In this case, there were no comparable panel decisions on penalty to consider. There was evidence before the Commission that Robinson Stables was a large operation that was very profitable. There was also evidence that the prior disciplinary record was worse than the industry average. Given the prior offences, it was reasonable for the Commission to reject the penalty in the Guidelines for a first offence of this nature. Those Guidelines are a statement of general policy. When determining a penalty, the Commission must look at the facts of the particular case and determine whether the Guideline penalty is appropriate.

38The panel took into account both mitigating and aggravating factors. Given the facts before the Commissioners at the rehearing, it can not be said that the penalty was unreasonable, let alone patently unreasonable.

Conclusion

39For these reasons, the application for judicial review is dismissed. If the parties are unable to agree with respect to costs, they may make brief written submissions within 30 days of the release of this decision.