CITATION: Schickedanz v. Ontario Racing Commission, 2011 ONSC 1438
DIVISIONAL COURT FILE NO.: 634/10
DATE: 20110303
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
BRUNO SCHICKEDANZ and TOMMASO MARINO
Moving Parties (Applicants)
– and –
ONTARIO RACING COMMISSION
Responding Party (Respondent)
Peter A. Simm, for the Moving Parties (Applicants)
Owen M. Rees, for the Responding Party (Respondent)
HEARD at Toronto: March 3, 2011
LEDERER J. (orally)
[1] The applicant, Bruno Schickedanz is seeking to judicially review a decision of the Executive Director of the Ontario Racing Commission.
[2] The Decision, among other things, imposed a twelve month suspension with the implementation of the second six months being stayed pending compliance with other terms of the Decision.
[3] The Ontario Racing Commission has consistently taken the position that the application is premature. The applicable regulatory scheme allows for an appeal to the Ontario Racing Commission. Bruno Schickedanz has failed to take advantage of this remedy and, in the face of the objection is insisting on proceeding to judicial review.
[4] The incident which resulted in the suspension occurred on June 29, 2010. The suspension was ordered on December 20, 2010. Counsel for Bruno Schickedanz wrote to the Chair of the Commission on December 23, 2010 advising of the intention of Bruno Schickedanz to seek judicial review of the order and asking that a stay be granted pending its resolution. On December 24, 2010, the order was stayed “on condition that a hearing on the merits of this matter is dealt with no later than March 4, 2010”. Today, is March 3, 2010. No hearing on the merits has been held or is scheduled for today or tomorrow. Bruno Schickedanz seeks an extension of the stay.
[5] The Ontario Racing Commission, that is, those responsible for administering racing in Ontario, oppose the request. The Commission, that is, those responsible for holding hearings and resolving issues through such proceedings had not been approached for a ruling. Over the course of the morning, counsel was afforded the opportunity to contact the Chair to see if he was available and if a ruling on an extension of the stay could be made. The Chair was out of the jurisdiction.
[6] Counsel agreed that, in any event, the Court does have the authority to deal with the continuation of the stay. It is useful to put this request into the context of the particular circumstances. The judicial review was initially to be dealt with through a motion to be made pursuant to s.6(2) of the Judicial Review Procedure Act, R.S.O. 1990, c.J.1. This section allows a single judge to hear a judicial review if the matter is an urgent one. The application was set for February 9, 2011 but was adjourned, on consent, to February 28, 2011. As that day approached, counsel for the respondent became concerned that no material had been served and on February 22, 2011, advised that he did not believe that enough time had been left for him to draft responding material and to adequately prepare.
[7] Counsel for Bruno Schickedanz has determined, and the parties agree, that the case should not proceed pursuant to s.6(2) of the Judicial Review Procedure Act. Rather, it should go to a full panel of this Court. Accordingly, the application did not proceed on February 28, 2011. No date for the hearing has been set. The Court advised counsel that April 28, 2011 could be made available. At the time, counsel for the respondent advised that the solicitor having carriage of the file was not available on that day. Today, counsel appearing before the Court advised that he could and would be free if April 28, 2011 was set as the date for the hearing of the judicial review. Unhappily, this does not provide a complete answer as to when the matter could best be heard. The problem is that the track at the Woodbine Raceway in the city of Toronto is regulated differently from others in the province. It is privately owned. This is where the incident leading to the suspension took place. Woodbine Entertainment Group, the operator of the track has its own disciplinary procedures. Using that process, it has separately suspended Bruno Schickedanz. That suspension was appealed by Bruno Schickedanz to the Ontario Racing Commission which held a hearing on August 17 and 26, 2010. The appeal was dismissed. It is now the subject of a separate judicial review set to be heard by a full panel of this Court.
[8] The question that has arisen is whether these applications arising as they do from the same incident should be heard together. Counsel for Bruno Schickedanz indicated that it is his intention to bring a motion seeking such a direction. Setting a date for this judicial review, on its own would, it seems, do nothing more than require another date to be set for another appearance to decide if the two applications should be heard at the same time.
[9] This does not seem to be a wise use of judicial resources or counsel’s time. The implication of this is that the two judicial reviews should be set for the same day and the stay extended to that day. This will allow the Court, on that day, to determine how the two applications should proceed. As matters have transpired the Court has a full day available on June 1, 2011.
[10] Counsel for the Ontario Racing Commission points out that there is no thoroughbred racing scheduled to take place at tracks in Ontario other than Woodbine, where the suspension remains in place, until May 1, 2011 when a meeting will commence at the track in Fort Erie, Ontario. The upshot of this is that an extension of the stay to June 1, 2011 would allow horses owned by Bruno Schickedanz to race for the month of May 2011. This is the practical impact of the extension being sought.
[11] The submissions of both counsel were framed by the requirements found in RJR MacDonald Inc. v. Canada (Attorney-General), 1994 117 (SCC), [1994] 111 D.L.R. (4th) 385 S.C.C., namely:
(i) a serious issue to be tried,
(ii) whether the applicant will suffer irreparable harm, and
(iii) the balance of inconvenience
(i) Serious Issue to be Tried
[12] Counsel for the respondent submitted that the authority for the order arises from s.23 of the Racing Commission Act, 2000, S.O. 2000, c.20. This provides the Director with the authority to suspend a license without serving notice on the licensee. This is an extraordinary authority. The section does contain certain procedural protections. Under s.23(2) of the Racing Commission Act, 2000, S.O. 2000, c.20, written reasons for the suspension are to be served on the licensee. In this case, counsel submitted that the document served contains no rationale or explanation for the order made.
[13] Pursuant to s.23(3) of the Racing Commission Act, 2000, through its incorporation of s.22(2) of the same legislation, the reasons are to advise the licensee of his right to a hearing by the Ontario Racing Commission. The document served did not contain this advice. The alleged absence of reasons is of particular concern.
[14] Counsel for the respondent suggests that none of this should matter. The judicial review is premature – the defects can be cured by a hearing before the Ontario Racing Commission. The threshold is low. This Court is generally loathe to allow an application for judicial review to proceed when another remedy remains available. Nonetheless, it does happen (see Ackerman v. O.P.P. (2010), 2010 ONSC 910, 259, O.A.C. 163 (Div. Ct.).
[15] In the circumstances of this case, I find that the threshold has been met. There is a serious issue to be heard.
(ii) Whether the Applicant Will Suffer Irreparable Harm
[16] Irreparable harm refers to the nature of the harm, rather than its magnitude. It is harm which cannot be quantified in monetary terms and which cannot be cured because one party cannot claim damages from the other.
[17] Bruno Schickedanz runs a substantial stable. If it cannot race it will lose a significant source of revenue. There will be no one to sue for damages. The Director is immune from such claims for acts done in good faith (see: Racing Commission Act, 2000, s.10(1)).
[18] There is no suggestion of bad faith. Moreover, the racing operation has employees. They would be victims of the suspension. There is no suggestion as to how they could recover what they would lose.
[19] Counsel for the Ontario Racing Commission says the harm is manufactured, it is not real. It occurred because Bruno Schickedanz has not proceeded to a Commission hearing and not perfected his judicial review so it could be heard by March 4, 2010. There is nothing before me to suggest a program of delay and as counsel for the applicant points out, given the complication of the separate process conducted by Woodbine, it is not likely that, in any event, it could have been dealt with by February 28, 2011. I find that there will be irreparable harm.
(iii) Balance Of Convenience
[20] The racing operation of Bruno Schickedanz has continued since the incident of June 29, 2010 and the order of the Director made on December 20, 2010. It is difficult to see how another month’s delay could cause much harm to the public perception of the process leading to the final determination. The balance of convenience is in favour of the applicant.
[21] Finally, I observe that setting both judicial reviews to be heard on June 1, 2011 raises one added issue – the presence of another party, Woodbine Entertainment Group. Their counsel has been contacted and does not oppose this date being set. The stay is extended to June 1, 2011.
[22] Following the delivery of these reasons I endorsed the Motion Record. For ease of reference I repeat here what is written there.
Three orders are made:
(i) On consent the Notice of Application for Judicial Review is amended as found at Tab 2A of the Motion Record.
(ii) The stay of the order of the Executive Director of the ORC made on December 20, 2010 in respect of a suspension of the licence of Bruno Schickedanz is continued until and including June 1, 2011 for reasons given orally today.
(iii) This judicial review (634/10) and the separate judicial review involving the applicants in this matter and Woodbine Entertainment Group will be heard on June 1, 2011, as directed by the panel sitting on that day. Counsel for Woodbine Entertainment Group was contacted and agreed to that date. In order for these matters to proceed at that time the following timetable must be met:
(a) Each judicial review must be perfected no later than Friday, April 1, 2011.
(b) Responding material to be served and filed no later than Monday, May 2, 2011 which I note is in compliance with Rule 68.04(4).
[23] The Court office has confirmed the full day is available and will be reserved.
[24] The parties agree that costs should be fixed at $2,500. The question is whether they should be payable forthwith or in the cause. The issue of whether this judicial review is premature is a live question. If it is premature the respondents should not have been required to be here. It is not an answer to say they could have moved to have the prematurity issue determined. It is for the applicants to decide how they wish to proceed.
[25] Costs to the applicant, in the cause in the amount of $2,500.00.
LEDERER J.
Date of Reasons for Judgment: March 3, 2011
Date of Release: March 16, 2011
CITATION: Schickedanz v. Ontario Racing Commission, 2011 ONSC 1438
DIVISIONAL COURT FILE NO.: 634/10
DATE: 20110303
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LEDERER J.
BETWEEN:
BRUNO SCHICKEDANZ and TOMMASO MARINO
Moving Parties (Applicants)
– and –
ONTARIO RACING COMMISSION
Responding Party (Respondent)
ORAL REASONS FOR JUDGMENT
LEDERER J.
Date of Reasons for Judgment: March 3, 2011
Date of Release: March 16, 2011