COURT FILE NO.: 510/06
DATE: 20061021
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Daniel Waxman and Vadalay Racing, Applicants,
-and-
Ontario Racing Commission, Respondent
HEARD: October 20, 2006
BEFORE: Lane, J.
COUNSEL: David Moore, for the for the Applicants;
Christopher Ashby, for the Respondent
E N D O R S E M E N T
LANE, J.:
[1] This is an urgent application for judicial review brought before me as a single judge of the Divisional Court pursuant to section 6(2) of the Judicial Review Procedure Act. For the reasons which follow, I am satisfied that adjourning the matter to a three-judge panel is likely to involve a failure of justice and that the matter is properly before one judge.
[2] The applicants are licensed by the respondent under its authority to govern racing in this province: the Racing Commission Act, 2000, S.O. 2000 c. 20, and the Rules of Standardbred Racing. On May 10, 2006, the Commission issued to the applicants a Notice of Proposed Order to suspend their licences, to disqualify certain horses and to redistribute the purses won by those horses to other participants in certain races. The amount of the purses at issue is about $450,000. In addition it is proposed to fine the applicants $100,000 if convicted. Thus the proceeding involves both significant monetary sums and the livelihood of the applicants. The applicants have requested a hearing which is presently scheduled to begin in two days, on Monday, October 23rd.
[3] The question of proper pre-hearing disclosure by the respondent has been an issue between the parties. In July the applicants received twelve volumes of documents, but no indication of the identity of the witnesses, nor what the evidence would be except an interview report of one Artandi who will be a witness. While handwritten notes of the principal investigator were produced, his reports on which the prosecution is based were not. The notes often contain no more than a note: “Waxman research” with no indication of the facts obtained. A pre-trial, on September 19, 2006, produced an agreement to provide a list of witnesses and this was received. The applicant wrote on September 22 stating that they were entitled to reasonably complete witness statements from the witnesses but the Commission counsel refused to provide them at the resumed pre-trial on September 29. Counsel for the applicants also referred to the need for the investigative reports without success.
[4] Accordingly a motion was scheduled before the Commission as to disclosure seeking a summary of the evidence of the witnesses, identification of the documents on which Staff intended to rely, an unredacted copy of the investigator’s notes and a copy of the investigative reports, plus an adjournment for a reasonable time after disclosure was made. The Commission dismissed the motion, except for directing its counsel to review the investigative reports and, if necessary make further disclosure by October 18, and that if any witness statements became available before the hearing, to disclose them. The Chair’s reasons included the finding that, in the light of the order being made, it was clear that there would be no need for the adjournment asked for and it was denied.
[5] On October 18th, the Commission produced 14 investigation reports, 12 of which had not been previously produced. They contain extensive data about the investigation, contacts with various persons to obtain information and analysis of documents considered by the investigator. Although there is some duplication, because some reports are updates of previous reports, the task of examining these reports, comparing them with the notes for discrepancies, and reviewing the documents referred to is clearly a time-consuming one. Having received the investigative reports, the applicants asked for the agreement of counsel for the Commission to an adjournment, but the suggestion was rejected.
[6] The applicant submits, and I agree, that because of the serious nature of the allegations in the case, the licence suspensions sought and the large monetary penalties sought, a high standard of procedural fairness is called for by the Supreme Court[^1]. Counsel maintains that the standard is not being attained. He asked for production of the refused documents and time to review them to prepare his case.
[7] The main submissions of counsel for the Commission before me were that the application is premature; that the production of the reports last Wednesday satisfied the fairness obligation and that there was no obligation to disclose witness statements. The application was premature because counsel for the applicant could go to the Commission on Monday and make his argument there and see what happened. But in its reasons, the Commission has already stated that in the light of the disclosure that it ordered, no adjournment would be granted. The Commission does not share the applicant’s view that the disclosure so ordered is deficient and it seems certain that the result of such a motion on Monday is fore-ordained.
[8] The investigator’s reports have now been produced, but the timing of their production is not satisfactory: two business days before the hearing is to commence is clearly an inadequate time for review and preparation. The investigator’s notes have been produced but in redacted form. Counsel advised the tribunal that the redactions were confined to notes regarding matters other than this one. The Chair accepted that statement and did not order the production of the unredacted notes. In my view, there was no error or unfairness in that decision. Similarly, the Chair reviewed the documents produced and found that they were organized by the horse involved and it was not up to the Commission to organize them in some different way to suit the applicants. Again, I see no unfairness in that decision.
[9] The major disagreement between the parties arose over the production of witness statements, or summaries or ‘will-says’, setting out the evidence that each witness is expected to give. The applicants submit that such material is a necessary part of the minimum acceptable disclosure, particularly in a case where the applicant’s livelihood is at stake. The Commission counsel has stated that it is not the practice of the Commission to give such material and that none in fact exists in this case. The Chair only directed that if any witness statements were actually prepared, they were to be disclosed. In my view, this decision understates the degree of disclosure appropriate for the case and creates a fundamental unfairness to the applicants in the proceeding. In Markandey[^2], Trafford J. said at paragraph 43:
The importance of full disclosure to the fairness of the disciplinary proceedings before the Board cannot be overstated. Although the standards of pre-trial disclosure in criminal matters would generally be higher than in administrative matters [citation omitted], tribunals should disclose all information relevant to the conduct of the case, whether it be damaging to or supportive of a respondent’s position, in a timely manner unless it is privileged as a matter of law. Minimally[^3] this should include copies of all witness statements and notes of the investigators.
-and later in the same paragraph:
The obligation to make disclosure is a continuing one. The Board has a positive obligation to ensure the fairness of its own processes. The failure to make a proper disclosure impacts significantly on the appearances of justice and the fairness of the hearing itself. Seldom will relief not be granted for a failure to make proper disclosure.
[10] In criminal cases, the accused is entitled to such disclosure as will enable him to make full answer and defence; sufficient to fairly apprise the accused of the case to be met in “sufficient time and substance to enable the accused to adequately prepare and defend that case.”[^4] While the standard for disclosure in administrative law cases generally may be somewhat lesser, in cases involving the loss of one’s livelihood, disclosure cannot be much, if any, below the criminal standard: see Kane, supra.[^5] A person defending her licence to practice or defending his livelihood must have the opportunity to know the case and to prepare to defend it. The preparation of a defence necessarily requires knowledge of the essence of the evidence on which the accuser relies: trial by ambush is incompatible with a fair hearing. The provision of a summary of the anticipated evidence of each witness is an essential part of disclosure in a case such as this one. That some of the witnesses’ information is referred to in the investigator’s reports is not an answer to this need, unless it is made clear that the witness will say nothing beyond what is expressly set out in the report.
[11] It was submitted that it was premature to stop the hearing because it should run its course, after which the whole record could be considered. There are many cases stating that principle, particularly in the context of not fragmenting ongoing hearings. However, if the hearing presently scheduled for Monday next were to commence without proper disclosure having been made in a timely way, it would be irretrievably tainted with unfairness from the outset. It does not offend this court’s policy of not fragmenting proceedings before administrative tribunals to act to prevent a hearing already tainted from beginning without correcting the unfairness:
If there is a prospect of real unfairness through denial of natural justice or otherwise, a superior court may always exercise its inherent supervisory jurisdiction to put an end to the injustice before all the alternative remedies are exhausted.[^6]
[12] For the reasons given, I am of the view that this is a case requiring the court’s intervention to prohibit the Commission from beginning the hearing until the unfairness to the applicants is rectified. The passage of time will rectify the problem created by the late disclosure of the investigator’s reports, but only positive action by the Commission will rectify the absence of witness summaries. An order will issue prohibiting the respondent Commission from commencing a hearing into the allegations against the applicants until not less than twenty days after the production of either a statement from, or counsel’s summary of the evidence anticipated to be given by, each witness to be called.
[13] The applicants were successful in substantial measure and will have their costs. If necessary, the quantum may be the subject of written submissions.
Lane J.
DATE: October 21, 2006
[^1]: See Kane v University of British Columbia 1980 10 (SCC), [1980] 1 S.C.R. 1105, 1113; per Dickson J.
[^2]: Markandey v Ontario (Board of Ophthalmic Dispensers) [1994] O.J. No. 484 (O.C.G.D.)
[^3]: Emphasis added.
[^4]: R. v. Wood (1989) 1989 7193 (ON CA), 33 O.A.C. 260 (C.A.)
[^5]: Footnote 1, supra.
[^6]: Gage v Ontario (Attorney General), (1992) 1992 8517 (ON SCDC), 90 D.L.R. (4th) 537, 553. (Div. Ct.)