Bertrand v. The Ontario Racing Commission, 2015 ONSC 6456

CITATION: Bertrand v. The Ontario Racing Commission, 2015 ONSC 6456

DIVISIONAL COURT FILE NO.: 187/14 DATE: 20151019

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

LEITCH, SANDERSON AND SACHS JJ.

BETWEEN:

ROBERT BERTRAND

Applicant

– and –

THE ONTARIO RACING COMMISSION

Respondent

Harvey A. Swartz, for the Applicant

Brenden van Niejenhuis, for the Respondent

HEARD at Toronto: October 19, 2015

SACHS J. (ORALLY)

Nature of the Proceeding

1The applicant is applying for judicial review of a decision from the Ontario Racing Commission (“the Tribunal”). On March 18, 2014, the Tribunal found the applicant’s conduct as the Clerk of Scales at the Woodbine Racetrack (“Woodbine”) warranted a refusal of an Ontario Racing Commission License, i.e. the License needed to work as the Clerk of Scales. Specifically, the Tribunal found that the applicant had accepted cash gifts from jockeys he worked with, and that he failed to administer the protocol for testing the jockeys’ blood alcohol levels.

Standard of Review

2There is no issue that the standard of review applicable to this case is reasonableness. In reaching the decision it did, the Tribunal was interpreting and applying its home statute. (Ontario Harness Horse Association. v. Ontario Racing Commission, 2012 ONSC 2198 paras. 12-13).

3In this regard we note that the applicant did not pursue his argument regarding a reasonable apprehension of bias on the part of the Tribunal. Further, the applicant failed to demonstrate how any alleged bias on the part of the investigators affected the fairness of the hearing before the Tribunal. The applicant also acknowledged that this Court does not have jurisdiction to address the issue of damages that he raised.

Was the Tribunal Decision a Reasonable One?

4The submission of the applicant is that the Tribunal’s decision that there “are reasonable grounds to believe” that he “will not act in accordance with law or with integrity, honesty, or in the public interest, having regard to his past conduct” is an unreasonable one. In making this submission the applicant points to the following:

(1) The applicant had been licensed by the ORC for over forty-eight years and had held his current position as Clerk of Scales for twenty-five years. He has no discipline history and, as the Tribunal acknowledged, a number of witnesses testified that “he was a man of integrity.”

(2) While the Tribunal found that he failed to follow exact protocols with respect to the administration, recording and reporting of breathalyzer tests, their findings with respect to this issue did not go further.

(3) While the applicant did not contest the fact that he had accepted payments from jockeys since 2009, he argued that these payments were made after the racing season was completed, were consistent with a long-standing tradition of Christmas gift giving and that he had never been informed of the Woodbine protocol restricting such gifts to $150.00. He also submitted that there was no evidence or finding by the Tribunal that the acceptance of these payments had influenced the performance of his duties as a Clerk of Scales in any way. Further, the Tribunal accepted at para. 21 that “there was no evidence that [the applicant] solicited payments from jockeys or other person involved in racing.”

5In considering the applicant’s submissions, it is important for this Court to keep in mind two principles:

(1) The Tribunal’s mandate was to decide whether the evidence before it afforded “reasonable grounds to believe” that the applicant would not act in accordance with law or with integrity, honesty or in the public interest.” In Ontario Alcohol and Gaming Commission, Registrar v. Famous Flesh Gordon (2013) O.J. No. 1139 at para. 18, the Ontario Court of Appeal confirmed that the standard of proof of “reasonable grounds for belief” is a lower standard than that of “balance of probabilities.”

(2) The standard of reasonableness is one that is founded on an attitude of deference to the administrative decision-makers who are making decisions within their areas of expertise and statutory mandate, in this case the regulation of the horse racing industry. Reasonableness is a standard that recognizes that there may be more than one reasonable decision with respect to the question before the decision-maker. Thus, our task is not to decide if we would have reached the same conclusion as the Tribunal, but to decide if the Tribunal’s decision was justifiable, transparent and intelligible and whether the outcome falls within the range of possible, acceptable outcomes which are defensible in respect of the facts and the law. (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47).

6In considering its statutory mandate with respect to the issue of integrity, the Tribunal noted at para. 23 that:

“As a regulated industry in Ontario, the provision of services in racing requires that licensees demonstrate the utmost honesty and integrity.”

7It further noted at para. 27 that an ORC licence is a privilege, not a right.

8The Tribunal considered the applicant’s long history in the racing industry and the evidence of his witnesses that he was a man of integrity, but found at para. 23 that “these statements seemed to the Panel to relate more to his long-term activities in his job as the ‘C of S’ and not to the concern of the impropriety in the acceptance of payments from jockeys. The latter becomes an integrity question that was not evident until the allegations of the cheque acceptances became known through a published report of such payments.”

9With respect to the applicant’s failure to follow protocol in administering breathalyzer tests, the Tribunal had evidence before it that the applicant had received a written communication from the ORC in December of 2008 expressing concern about his practices in this regard. The Tribunal also had evidence from the applicant that he had not paid attention during the training sessions given on this issue, that he did not believe that it was necessary to follow the guidelines stipulating that all breathalyzer tests be conducted in his office and that he would continue to permit jockeys to be tested in the jockey’s room because it was “the easiest way”, even though he was aware that this was a contravention of policy.

10On the question of whether the payments were part of a “tradition” of Christmas giving, the Tribunal specifically considered the evidence before it on this issue and rejected the applicant’s position that there was any tradition of making such payments to the Clerk of Scales. The Tribunal also had evidence from three stewards, all former jockeys, that “they would never accept money or make any payments to the ‘C of S’ as it would be improper for any person in a position of trust and lead to an expectation of a benefit or favour from the ‘C of S’.” (Tribunal’s Decision, para. 19).

11The Tribunal’s factual and credibility findings are entitled to deference from this Court.

12On the question of whether the applicant’s past conduct could lead to a concern about his future conduct, the Tribunal made the following important observations at para. 21:

[The applicant] stated that he did not see anything wrong with the way he was operating the breathalyzer or that the receipt of gifts was improper conduct. He did not appear to be contrite or to indicate his attitude would change, although he would act differently on the instructions of his supervisor, Steven Koch.

13A lack of insight into the problems with one’s behaviour even when that behaviour

has been brought to your attention and is clearly contrary to established protocol and rules, and an unwillingness to change, except if ordered to do so, are factors that could reasonably cause the Tribunal to conclude that, taking into account the applicant’s past conduct, there were reasonable grounds to believe that the applicant will not act in accordance with law, or with integrity, honesty or in the public interest.

14In our view, the Tribunal’s decision was a reasonable one. As explained above, its reasoning was intelligible, justifiable and transparent. As well, the decision it reached fell within the range of possible and acceptable outcomes that are defensible in terms of the facts and the law.

15For these reasons the application is dismissed.

LEITCH J.

COSTS

16I have endorsed the Application Record, “Application is dismissed, for reasons given orally by Sachs J. Costs are awarded to the respondent, ORC, in the amount of $5,000 inclusive of disbursements and HST (an amount agreed upon by counsel).

___________________________ SACHS J.