Waxman and Vandalay Racing v. Ontario Racing Commission
CITATION: Waxman and Vandalay Racing v. Ontario Racing Commission, 2010 ONSC 3198
DIVISIONAL COURT FILE NO.: 80/10
DATE: 20100531
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
GREER, MCCOMBS AND SWINTON JJ.
BETWEEN:
DANIEL WAXMAN and VANDALAY RACING
Applicants
– and –
ONTARIO RACING COMMISSION
Respondent
J. Thomas Curry and David A. Vitale, for the Applicants
Trudy Mauth, for the Respondent
HEARD at Toronto: May 31, 2010
MCCOMBS J. (orally)
[1] This is an application for judicial review of an interlocutory decision of the Ontario Racing Commission (the “ORC”, or the “Commission”) dated January 5, 2010.
Overview
[2] The Applicant, Daniel Waxman, was licensed to race in Ontario from 2002 until 2008, and is the registered owner of Vandalay Racing, the corporate Applicant. On May 10, 2006, the Executive Director of the ORC issued a Notice of Proposed Order against the Applicants, alleging a violation of Rule 11.08 of the Standardbred Rules of Racing, known as the hidden ownership rule. The core allegation is that Daniel Waxman and Vandalay are sham owners and that the true owner is Robert Waxman, Daniel’s father.
[3] Daniel Waxman’s father has been and continues to be the subject of criminal fraud allegations. He faces twelve counts of criminal fraud totalling in excess of $28,000,000. He also faces garnishment proceedings in Canada and the United States and is no longer licensed to race horses in Ontario.
[4] The Commission has withheld $500,000 in purse money and seeks a $100,000 fine and suspension of the Applicant’s racing licence for five years.
[5] On May 19, 2006, the Applicants appealed the decision of the Executive Director under s.22(3) of the Ontario Racing Commission Act, 2000, S.O. 2000, c.20 (the “Act”) thereby triggering entitlement to a hearing before the Commission to review the Director’s decision to issue the Notice of Proposed Order.
[6] The hearing was scheduled to proceed on October 23, 2006. That, however, did not happen. Indeed, over three and one-half years later, the hearing on the merits still has not commenced.
[7] The delay has been due to interlocutory disputes over the adequacy of disclosure by the ORC to the Applicants.
[8] After an initial request for disclosure was refused by ORC counsel, the Applicants brought an application before a panel of the ORC seeking disclosure. That motion was dismissed on October 12, 2006 and the Commission ordered that the hearing proceed on October 23. (Vol. 5, Record of Proceedings p. 23).
[9] The Applicants then applied under s.6(2) of the Judicial Review Procedure Act, R.S.O. 1990, c.J.1, for an urgent order requiring disclosure and directing that the impending October 23, 2006 proceedings be adjourned.
[10] The application was heard by Lane J. on October 20, 2006 as a single judge. On October 21, 2006, Lane J. ordered further disclosure. Specifically, he stated that “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.” Because the hearing was to commence in two days, he directed that an order be issued prohibiting the hearing from proceeding “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.” (Vol. 5, Record of Proceedings, p.29).
[11] Since that Order, the process has stalled badly.
[12] It was nine months later, on June 28, 2007, before the ORC responded to Lane J.’s ruling by providing witness summaries to the Applicants. Further disclosure was provided on October 2, 2008. The Applicants took the position that the disclosure was inadequate and did not comply with the order of Lane J. Through counsel, they objected to setting a date for the hearing, taking the position that the Applicants could not properly defend themselves in the face of purportedly inadequate disclosure.
[13] Eventually, over the objections of counsel for the Applicants, the hearing was scheduled to proceed on January 26, 2009. On January 21, 2009, the Applicants filed a motion with the ORC returnable on January 26, 2009, seeking a stay of the proceedings for failure to make full and complete disclosure and excessive delay. That application proceeded over five days between January 26 and May 21, 2009, with testimony from at least six witnesses.
[14] In its nineteen page decision released on January 5, 2010 (Tab 2, Application Record), the Commission dismissed the Applicants’ motion for a stay of proceedings. The Commission held that the ORC had complied with the order of Lane J. respecting disclosure and that although some of the delay was due to a lack of institutional resources at the ORC, it was also contributed to by the inertia of the Applicants, who did nothing to move the matter forward. The Commission held that the Applicants’ “chronic inactivity and resistance to forward progress” was inconsistent with their request for a stay of proceedings based on delay. The Commission ordered further disclosure respecting purse money, but refused to order disclosure of an investigation by the ORC into Robert Waxman.
[15] The Commission concluded by stating:
“No basis for granting a Stay has been established. What has been established emphatically is that the Hearing should move forward. The Motion for Stay is dismissed.”
This Application
[16] The Applicants now bring a further application for judicial review of this most recent interlocutory order of the Commission. They seek an order quashing the Commission’s order respecting disclosure; an order remitting the matter back to the Commission for further disclosure as ordered by this Court; and an order directing that a hearing against the Applicants not proceed until not less than twenty days have passed after proper disclosure is provided. They do not challenge the stay decision.
Standard of Review
[17] The Applicant submits that the standard of review of the Commission’s decision concerning disclosure is one of correctness. We agree that the principles of law applied by the Commission are subject to review on a standard of correctness. However, where the Commission’s decision involves questions of mixed fact and law, as it does in this case respecting relevance of the material in dispute, the decision is to be reviewed on a reasonableness standard: See: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. This is particularly so in this case, because the ORC is a specialized tribunal whose decisions are entitled to deference: See: McNamara v. Ontario (Racing Commission) (1998), 1998 7144 (ON CA), 164 D.L.R. (4th) 99 at para. 33. Ontario C.A.).
The Issues
[18] The Respondent conceded the issue of prematurity and we therefore refrain from commenting on it.
[19] We are left to determine the following questions:
(i) Did the ORC staff comply with the Order of Lane J. dated October 21, 2006?
(ii) Did the panel apply the wrong legal test for disclosure?
(iii) Did the panel improperly shift the onus of proof onto the Applicants?
(iv) Did the panel deny the Applicants procedural fairness?
[20] We answer each of these questions in the negative.
(i) In its nineteen (19) page decision, the Commission dealt fully with the issue of whether the Order of Lane J. had been complied with. The prosecution had provided two sets of will-says on two occasions, with a sub-binder of documents. The evidence before the Commission fully supported its conclusion that the disclosure ordered by Lane J. had been complied with and went beyond minimum requirements. (paras. 29 & 30).
(ii) The Commission correctly identified the legal test for disclosure in proceedings of this nature as “a reasonable possibility of being relevant”. See: R. v. Stinchcombe 1991 45 (SCC), [1991] S.C.J. No. 83 at para. 22. The panel heard evidence that led it to conclude that the ORC files relating to Robert Waxman were irrelevant to the Applicants’ proceeding. It concluded that:
Over a period of several years, Robert Waxman’s actions attracted the attention of Criminal Investigators, Securities Commission Investigators and ORC Investigators. In the result, there were civil lawsuits, criminal proceedings and ORC proceedings related to his conduct or misconduct. That layering of long term investigative activity is a fertile well-spring of irrelevancies certain to obscure, confuse and confound.
To pursue Robert Waxman’s activities in unrelated areas is clearly irrelevant, non-productive and serves to deflect and delay proper activity. This claimed basis for disclosure is without merit.
The panel’s decision that the ORC met its disclosure obligation with respect to the ORC investigation files on Robert Waxman is reasonable.
(iii) In our view, the panel did not improperly shift the onus of proof to the Applicants.
(iv) The Applicants raised the issue of procedural fairness in their factum but did not press the issue in argument. In light of the conclusions we have reached on the other issues in this application, it follows that we find no denial of procedural fairness.
[21] In closing, we note that the Applicants also took issue with the disclosure made since January, 2010. Their concerns should be raised with the Commission and not before this Court. It is premature to bring this issue before this Court.
[22] In the result, the application is dismissed.
GREER J.
[23] The application is dismissed for oral reasons delivered. Costs of the Respondent are fixed at $5,000 inclusive of disbursements and GST.
MCCOMBS J.
GREER J.
SWINTON J.
Date of Reasons for Judgment: May 31, 2010
Date of Release: June 4, 2010
CITATION: Waxman and Vandalay Racing v. Ontario Racing Commission, 2010 ONSC 3198
DIVISIONAL COURT FILE NO.: 80/10
DATE: 20100531
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
GREER, MCCOMBS AND SWINTON JJ.
BETWEEN:
DANIEL WAXMAN and VANDALAY RACING
Applicants
– and –
ONTARIO RACING COMMISSION
Respondent
ORAL REASONS FOR JUDGMENT
MCCOMBS J.
Date of Reasons for Judgment: May 31, 2010
Date of Release: June 4, 2010