Polifroni v. Ontario Racing Commission #2, 2013 ONSC 4662
CITATION: Polifroni v. Ontario Racing Commission #2, 2013 ONSC 4662
DIVISIONAL COURT FILE NO.: DC-12-0038JR
DATE: 20130719
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MATLOW, HARVISON YOUNG and CORNELL JJ.
B E T W E E N :
JAY POLIFRONI
Applicant
– and –
ONTARIO RACING COMMISSION
Respondent
James Evans
for the Applicant
Andrea Gonsalves
for the Respondent
HEARD: March 18, 2013 at Brampton
MATLOW J.:
[1] At the conclusion of the hearing of this application for judicial review, the Court determined that this application, both with respect to the panel’s findings of guilt and its imposition of penalties, be dismissed. My endorsement stated that written reasons were to follow and these are those reasons.
[2] The applicant, a licensed standardbred trainer, was found guilty, by judges of the respondent, of violations of certain Rules of the respondent as a result of his treatment of a horse and was fined, suspended and placed on probation.
[3] The 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 by the Act.
[4] Both parties were then in agreement, as they are now, that the hearing was required to be conducted as if it were a trial de novo and we agree as well.
[5] The 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 earlier imposed on him.
[6] The applicant then brought an application for judicial review to this Court alleging various errors in the conduct of the hearing before the panel. I am the only member of this panel who was also a member of the panel of this Court that heard that application too. The application was granted, the decision of the panel of commissioners was set aside and the applicant’s grievance was remitted to the respondent for a new hearing before a panel differently constituted.
[7] The reasons of this Court for that decision were reported as Polifroni v Ontario Racing Commission, 2011 ONSC 6602. Paragraphs 10 and 11 explained the underlying basis for the order made. They read, in part, as follows:
[10] It 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 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.
[11] Accordingly, 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.
[8] Subsequently, on April 24 and 26, 2012, a new hearing of the applicant’s grievance commenced before another panel of the respondent pursuant to the order of this Court.
[9] This new hearing, unlike the first, was conducted as a trial de novo in which the burden of proof to prove the applicant’s guilt was placed squarely on the Administration without regard to the decision of the judges. The Administration’s case against the applicant rested entirely on circumstantial evidence summarized in paragraphs 12 and 31 of the panel’s reasons, some of which would not have been admissible if the hearing had been a formal trial in a court of law. The panel ultimately accepted the evidence in support of the Administration’s case, rejected the evidence given by the applicant and found, in paragraph 32 of its reasons, that:
• The injury as described did exist.
• That injury was caused by repeated blows with a whip or similar instrument.
• Polifroni inflicted those blows.
• That conduct was prejudicial to the best interests of racing Rule 6.20(b).
[10] The burden and standard of proof applied by the panel are described in paragraph 7 of its reasons as follows:
[7] The burden of proof is on the Administration. The standard of proof is on the balance of probability with the evidentiary burden of cogent evidence, clear and convincing as identified in ORC v Wallis and Piroski (SB 036/2011). (sic)
[11] In applying the standard of proof in this manner, the panel may have applied a standard that is more stringent than required. In F.H. v McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at paragraph 40, Rothstein, J., on behalf of the Court stated the following:
[40] Like the House of Lords, I think that it is time to say, once and for all in Canada, that there is only one civil standard of proof at common law and that is proof on a balance of probabilities. Of course, context is all important and a judge should not be unmindful, where appropriate, of inherent probabilities or improbabilities or the seriousness of the allegations or consequences. However, these considerations do not change the standard of proof. I am of the respectful opinion that the alternatives I have listed above should be rejected for the reasons that follow.
[12] The panel was entitled to make its findings solely on the basis of the circumstantial evidence adduced, including evidence that would not have been admissible if the hearing had been a formal trial in a court of law; see section 15(1) of the Statutory Powers Procedure Act, R.S.O. 1990. c. S.22. That evidence was sufficient to support all of the findings of the panel and its final disposition with respect to the issue of guilt.
[13] The panel then imposed the following penalty set out in paragraph 47 of its reasons;
[47] The penalty imposed is:
• Full suspension – 90 days;
• No stay;
• Fine $1,000 payable within 60 days;
• 2 years probation. The terms will be as ordered by the Judges.
I. ORC Investigators shall be permitted access to Polifroni’s stable for the purpose of observing the physical condition of his horses and for search and seizure;
II. Keep the peace and be of good behaviour.
• Enrolment in an anger management program approved by the Judges at Sudbury Downs.
[14] The panel’s reasons for the imposition of this penalty included the following:
[39] One of the primary principles of racing, often and publicly stated by the Commission is the importance of the health and welfare of the horses. A Notice to the industry of April 19, 2006, deals with the enforcement goals of the industry:
“to maintain health and well-being of horse, the integrity of the industry and public confidence.” (see also Policy Directive 5- 2009)
[41] By necessary inference, injury to the extent described bespeaks a severe and multiple striking of the horse with a whip or similar instrument. It must be beyond controversy that such misconduct by a trainer charged with responsibility for that horse and licensed to care for other horses is prejudicial to the best interests of racing, R.6.20(b). There is no place in the industry for this conduct.
[44] Polifroni has generated over 50 rule violations including
• Five incidents of threatening body harm or offensive language – R. 6.17
• Three rulings for misconduct – R6.20 (injurious to racing);
• Two positive tests;
• Nine whipping violations.
[15] The order in appeal was made by the panel in the exercise of its jurisdiction to interpret and apply its home statute. There are no serious issues engaged which involve the broad application of the law outside the scope of the panel’s expertise. There is no statutory right of appeal. The standard of review applied to decisions of the respondent has consistently been held to be the deferential standard of reasonableness. It should be applied in this application as well.
[16] In our view, the order in appeal in all respects meets that standard.
[17] The respondent seeks costs of this application fixed at $6,825, all-inclusive, and this claim is not disputed by the applicant. We agree that it is reasonable and, accordingly, it is granted.
MATLOW J.
HARVISON YOUNG J.
CORNELL J.
RELEASED: July 19, 2013
CITATION: Polifroni v. Ontario Racing Commission #2, 2013 ONSC 4662
DIVISIONAL COURT FILE NO.: DC-12-0038JR
DATE: 20130719
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MATLOW, HARVISON YOUNG and
CORNELL JJ.
B E T W E E N :
JAY POLIFRONI
Applicant
– and –
ONTARIO RACIGN COMMISSION
Respondent
REASONS FOR JUDGMENT
MATLOW J.
RELEASED: July 19, 2013