Polifroni v. Ontario Racing Commission, 2011 ONSC 6602

Citation: Polifroni v. Ontario Racing Commission, 2011 ONSC 6602

DIVISIONAL COURT FILE NO.: DC-10-0074-JR

DATE: 20111207

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MATLOW, CHARBONNEAU, NADEAU, J.J.

B E T W E E N:

JAY POLIFRONI

Applicant

• and -

ONTARIO RACING COMMISSION

Respondent

Counsel:

James Evans, for the Applicant

Brendan Van Niejenhuis, for the Respondent

HEARD: October 19, 2011 at Brampton

REASONS FOR JUDGMENT

MATLOW, J.:

1At the conclusion of the hearing of this application for judicial review, the Court determined that the application be granted, the decision of the panel of the respondent be set aside and the applicant’s grievance be remitted to the respondent for a new hearing before a panel differently constituted. My endorsement stated that written reasons were to follow and these are those reasons.

2The applicant, a licensed standardbred trainer, was found guilty, by judges of the respondent, of violations of the Rules of the respondent in relation to his treatment of a horse and was fined and placed on probation.

3The applicant, exercising the right of “a person who considers oneself aggrieved by the decision of the judges pursuant to section 11(7) of the Racing Commission Act, 2000 (“the Act”), then sought a hearing before the respondent as provided for in the Act.

4Both parties are in agreement that the hearing was required to be conducted as if it were a trial de novo and we agree as well.

5The hearing was held before a panel of three commissioners to whom the powers of the respondent were delegated in accordance with the Act. At the conclusion of the hearing, the panel upheld the findings of guilt against the applicant and increased the penalties that had been imposed on him.

6The applicant relies, in support of this application, on submissions that the panel’s decision was unreasonable and wrong in law.

7At the opening of the hearing of this application, the Court, on our own motion, invited counsel to address what appeared to be fundamental errors made by the panel that went to the root of their jurisdiction. We were all of the view that we were obliged, in the interests of justice, to raise the issues in the circumstances and we were satisfied that there could be no prejudice to either party by our doing so. Both counsel, without objection, made submissions on the issues raised by the Court that arose solely from passages in the reasons for decision given by the Chair on behalf of the panel.

8At paragraph 15 of the Chair’s reasons for decision, he described what he perceived to be the issue for determination by the panel as follows;

15. Did the Judges at Sudbury Downs carefully review the testimony and evidence in the alleged welting of Tricky Prospect in determining to assess Jay Polifroni responsible?

9At paragraph 17, he stated the following;

17. On a balance of probabilities, it is reasonable to conclude that the appellant is responsible for the welts on Tricky Prospect. The appropriate standard of review is reasonableness as articulated in Dunsmuir v New Brunswick 2008 SCC 9, [2008] S.C.J. No. 9. It reads ”Reasonableness is a differentiated standard animated by the principle that underlies the development of two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within a range of acceptable solutions.”

10It is evident from these two extracts that the Panel did not understand the required procedure for the conduct of a trial de novo and could not have properly conducted one. What the Chair stated in paragraph 15 clearly shows that it was his view that, in some way, it was incumbent on the panel to review the work that the judges who initially found the applicant guilty performed. What the Chair stated in paragraph 17 further supports this view as the standard of review of reasonableness could not have had any application to the conduct of a trial de novo but only to the process for reviewing the work of the judges that the Chair had in mind. In a trial de novo, the panel need not have considered anything other than whether the charges against the applicant had been proven to their satisfaction on a balance of probabilities. The earlier proceeding before the judges was totally irrelevant to that determination.

11Accordingly, it is our view that the errors made by the panel were fundamental and went to the root of their jurisdiction. By deviating as they did from conducting a proper hearing, they lost jurisdiction and their decision cannot stand.

12It is our hope that these reasons will provide the respondent with useful guidance in the hearings that it conducts in the future.

Matlow, J.

Charbonneau, J.

Nadeau, J.