CITATION: Brooks v. Ontario Racing Commission, 2016 ONSC 1136

DIVISIONAL COURT FILE NO.: DC-13-502-JR

DATE: 20160311

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

H. SACHS, STEWART and PATTILLO JJ.

BETWEEN:

JEFFREY BROOKS and BULLETPROOF ENTERPRISES Applicants

– and –

ONTARIO RACING COMMISSION and DIRECTOR OF THE ONTARIO RACING COMMISSION Respondents

David C. Moore and Ken G. Jones, for the Applicants

Trudy B. Mauth, for the Respondents

HEARD at Toronto: January 21, 2016

H. Sachs j.:

Overview

[1] The Applicants are applying for judicial review of three decisions – one by the Director of the Ontario Racing Commission (the “Director”) and two by the Ontario Racing Commission (the “Commission” or “ORC”).

[2] The Applicant, Bulletproof Enterprises, is a stable owned by the Applicant, Jeffrey Brooks. In 2009 and 2010, horses owned by Bulletproof Enterprises competed in over 1000 races at various facilities in Ontario, winning purses totalling just over $6,700,000.

[3] In 2007, Jeffrey Brooks’ brother, David Brooks, was indicted in the State of New York on fraud. In November of that year, David Brooks’ licence to participate or work in Ontario’s horse racing industry was suspended. He was suspended again in 2008, due to the fact that he was the owner of a horse that received a positive drug test in July of 2007.

[4] In 2009, the Commission investigators became concerned that Jeffrey Brooks was permitting David Brooks to be involved in the training and business decisions of the horses owned by Bulletproof, contrary to the Rules of Standardbred Racing (the “Rules”). At the same time, they were informed that the Applicants were requesting several large withdrawals from a bank account in their name, but held by Woodbine Entertainment Group (“Woodbine”/“WEG”). The money in this bank account (known as a “Horseman’s account” or a “purse account”) was mostly derived from horse race winnings, known as “purse awards”. If David Brooks was, in fact, participating in the activities of Bulletproof, Bulletproof was not entitled to these purse awards.

[5] On January 26, 2010, because of the Commission’s concerns, the Director, on an ex parte basis, issued an order suspending the Applicants’ ORC licences and ordering the ORC to freeze all of the monies in the Applicants’ Woodbine accounts pending completion of the ORC investigation (the “Suspension and Freezing Order Decision”).

[6] On February 2, 2010, as a result of the ORC investigation, the Director issued a Notice of Proposed Order to Suspend Licences making a number of allegations against the Applicants, allegations which included taking instructions and direction from David Brooks in relation to their horse racing business. The allegations also included an allegation of threats and a number of allegations of financial irresponsibility.

[7] In August of 2012, the Applicants filed a motion with the Commission asking them to quash or stay both the Suspension and Freezing Order and the Notice of Proposed Order to Suspend Licences. In that motion, the Applicants alleged, among other things, that the Respondents had not satisfied their obligation to provide particulars or their obligation to provide disclosure. On November 6, 2012, the Commission dismissed the Applicants’ motion (the “Procedural Decision”).

[8] In May of 2013, the hearing on the merits of the allegations contained in the Notice of Proposed Order to Suspend Licences took place. On August 29, 2013, the panel released its decision in which it made numerous findings of wrongdoing against the Applicants and ordered that the bank accounts that had been frozen pursuant to the Suspension and Freezing Order Decision be forfeited, since the Applicants were not entitled to the purse awards in those accounts. It also ordered that the Applicants’ ORC licences be suspended for ten years and imposed a fine of $400,000 (the “Merits Decision”).

[9] On this application, the Applicants seek to judicially review the Suspension and Freezing Order Decision, the Procedural Decision and the Merits Decision.

[10] With respect to the Suspension and Freezing Order Decision, the Applicants submit that the Director had no jurisdiction to make the order and that the freezing order violated the Applicants’ Charter rights. With respect to the Procedural Decision, the Applicants argue that the panel conflated the issues of particulars and disclosure, and, as a result, forced the Applicants to participate in a hearing when they did not know the particulars of the allegations they were facing. With respect to the Merits Decision, the Applicants submit that the Vice Chair presided over that hearing when he had no jurisdiction to do so because his term had expired. Further, he failed to advise the parties that his term had expired until the Merits Decision was released. The Applicants also argue that the Merits Decision was unreasonable and that the proceedings they were subjected to breached their rights to natural justice.

[11] For the reasons that follow, I would dismiss the application. While I agree that the Director did not have jurisdiction to grant a freezing order, I do not agree that the granting of that order requires that the Merits Decision should be set aside. I find that the Procedural Decision and the Merits Decision were reasonable. I also find that neither of these decisions breached the Applicants’ rights to natural justice. While it might have been preferable for the Vice Chair to have advised counsel earlier of the issue concerning the expiry of his term, I find that the Vice Chair correctly held that the proceeding against the Applicants commenced with the Procedural Motion (when his term had not expired) and that s. 4(3) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”) permitted him to preside over the merits hearing.

Brief Factual Background

[12] Bulletproof Enterprises is a stable that is solely owned by Jeffrey Brooks. On October 2, 2007, David Brooks was arrested and indicted on fifteen fraud related charges in New York. He was released on $400 million bail with strict bail conditions related to financial transactions. Jeffrey Brooks was his surety.

[13] On November 16, 2007, the ORC suspended David Brooks, reciprocating a Decision from the Commonwealth of Pennsylvania. In December of 2007, David Brooks’ ORC licence expired. On May 17, 2008, David Brooks’ licence was suspended by the ORC as a result of a positive drug test. This suspension was to remain in place until he re-paid purse monies of $2700 to the Kawartha Downs racetrack. Those monies were repaid on July 31, 2009.

[14] On September 8, 2009, David Brooks was declared to be ineligible to be licensed in Ontario until he appeared before the Director of the ORC. He has not done so to date.

[15] On January 10, 2010, David Brooks’ bail was revoked in the United States as a result of allegations that both David and Jeffrey Brooks were concealing assets overseas. Jeffrey Brooks was captured on surveillance video in England removing duffel bags containing substantial amounts of cash from a safety deposit box in London.

[16] At around this period of time, the ORC received information that substantial withdrawals had been requested from the Horseman’s account in the name of Bulletproof Enterprises at WEG. After these withdrawals, the balance remaining in the account, as of January 31, 2010, was $809,000.

[17] The ORC also received information that caused them to believe that David Brooks was involved in the running of Bulletproof Enterprises and that Bulletproof was not paying its bills to other ORC licensees, some of whom had been threatened with injury if they sought payment.

[18] The monies that were in the Bulletproof account at WEG were largely derived from purse winnings accrued over the years 2009 and 2010. If David Brooks, a suspended licensee, was actively involved in the running of Bulletproof when these winnings were accumulated, then the position of the ORC was that Bulletproof was not entitled to those purse winnings.

[19] On January 26, 2010, based on the above concerns, the Director of the ORC issued the Suspension and Freezing Order. This order was made on an ex parte basis. Pursuant to this order, Jeffrey Brooks’ licence was suspended, as was that of his stable. The money in Bulletproof’s WEG account was frozen. On February 10, 2010, the Applicants requested a hearing concerning the Suspension and Freezing Order pursuant to s. 23(3) of the Racing Commission Act, 2000, S.O. 2000, c. 20 (the “Act”).

[20] On February 2, 2010, a Notice of Proposed Order to Suspend Licences was issued against the Applicants. On February 17, 2010, the Applicants requested a hearing in relation to this Notice, pursuant to s. 22(3) of the Act.

[21] On September 14, 2010, David Brooks was convicted in the State of New York of 17 counts, including insider trading and securities fraud. He remains in custody on those charges.

[22] On September 6, 2012, a panel of the ORC was convened to hear pre-hearing motions brought by the Applicants. On November 6, 2012, the panel’s ruling in relation to these motions was released , i.e., the Procedural Decision.

[23] On November 20, 2012, hearing dates were selected before the same panel and the hearing on the merits was scheduled to commence in April of 2013 and run for a period of four weeks. The hearing was actually heard over a period of 5 days in May of 2013. Written closing submissions were completed in July of 2013 and the decision was released on August 29, 2013.

[24] It should also be noted that on November 7, 2012, the day after the Procedural Decision was released, the appointment of the Vice Chair who presided over the hearing expired.

The Suspension and Freezing Order Decision

[25] It is accepted that the funds that were frozen pursuant to the freezing order were funds being held in the name of Bulletproof by WEG. Thus, they were the property of Bulletproof and the Applicants were entitled to withdraw those funds. During oral argument, counsel for the ORC conceded that these funds were not “Purse Accounts” as that term is used in the Rules, and, thus, were not subject to the powers given to the Director in relation to purse accounts.

[26] In making his order freezing those funds, the Director relied upon Rule 1.09 of the Rules, which reads as follows:

1.09 If any case occurs which is not or which is alleged not to be provided for by the rules, it shall be determined by the Judges or the Commission as the case may be, in such manner as they think is in the best interests of racing.

[27] The Director obviously viewed this rule as a general basket clause that gave him the authority to do whatever he felt was necessary in the best interests of racing. However, the Commission and the Director are creatures of statute. As such, whatever powers they have must be derived from statute.

[28] The Commission was established under the Racing Commission Act. Section 2(1) of the Act provides that the Commission is a body corporate and s. 2(3) states that the Commission “is for all purposes an agent of the Crown in right of Ontario and its powers may be exercised only as an agent of the Crown.” The Commission’s powers under the Act are set out in s. 7.

[29] Section 9 of the Act provides that the Commission is obligated to appoint one of its employees to be the Director of the Commission, and s. 9(2) states:

(2) The Director shall,

(a) on behalf of the Commission, exercise the powers of the Commission described in clauses 7(c), (d) and (i); and

(b) exercise the powers conferred on the Director and perform the duties assigned to the Director.

[30] Under s. 7(c), the Commission has the power to license persons to operate race tracks and to impose terms on a licence; under s. 7(d), the Commission has the power to license owners, trainers and other people who are “in or about race tracks”; and, under s. 7(i), the Commission has the power to require registration with the Commission of “colours, assumed names, partnerships and contracts relating to horse racing”. None of these clauses include the power to freeze the accounts of owners that may be held by race tracks like WEG.

[31] Rule 1.09, which is the rule the Director relied on to issue the freezing order, does not confer on the Director the power to impose such an order. It confers a broad power on the Judges or the Commission, not on the Director. There are rules that do confer powers on the Director (including powers in relation to purse accounts). However, none of these rules confer a power on the Director to issue a freezing order.

[32] For these reasons, we find that the Director had no jurisdiction to make the freezing order he did. Given this finding, there is no need to address the Applicants’ submission that the order violated their rights under s. 8 of the Charter, an argument that the Applicants raised for the first time on this judicial review.

[33] The Applicants did not challenge the Commission’s authority to make the forfeiture order after the merits hearing, nor did the Applicants seek a remedy before us in relation to the freezing order. Rather, the Applicants’ position was that the fact that the Director proceeded to make this order was a factor that we should take into account in considering whether the Merits Decision should be set aside. That is, the Merits Decision was the result of a number of actions that breached the Applicants’ rights to procedural fairness, the first of which was the imposition of an ex parte order that the Director had no jurisdiction to make.

[34] For the reasons that follow, I do not accept that the Merits Decision was the result of a number of breaches of procedural fairness or that it was unreasonable. Thus, as already indicated, I would not set aside that decision on the basis that the Director had no jurisdiction to make the freezing order.

The Procedural Decision

[35] While the Applicants raised a number of issues with respect to this decision in their factum, their oral submissions centred on one argument—a failure to provide particulars. According to the Applicants, in the Procedural Decision, the panel conflated the issues of particulars and disclosure, thereby leaving the Applicants in the position of having to sort out for themselves what the allegations against them were. This, in turn, impacted on the ultimate fairness of the merits hearing. By way of example, the Applicants point to the fact that the key allegation at the merits hearing was that David Brooks was a controlling owner of Bulletproof. However, what was not particularized was the time-frame over which this control was alleged to have been exercised. According to the Applicants, they were entitled to know when it is that the Commission was alleging that they acted improperly. Instead of being given this information, they were subjected to what they described as a “smorgasbord” of evidence from a number of witnesses that spanned a period of three years. In oral submissions, the Applicants were clear that they knew what the evidence against them was going to be.

[36] In making their argument about the unfairness of not being provided with adequate particulars, the Applicants point to the fact that in the Merits Decision, the panel found that the Applicants were guilty of misconduct amounting to fraud. As put by the panel at para. 111 of that decision:

Many other participants in these one thousand plus races were deprived of their full purse entitlement by the promulgated deceit or falsehood that Jeffrey Brooks controlled Bulletproof without any control in whole or in part by David Brooks. That is fraud.

[37] A detailed analysis of the sufficiency of particulars in the administrative law context is found in the Court of Appeal of New Brunswick’s decision, Violette v. New Brunswick Dental Society, 2014 NBCA 1, [2004] N.B.J. No. 5, at pp. 13-16. Fundamentally, the court in that case determined that a contextual analysis that considers the legislative scheme the tribunal is working within is required to determine the sufficiency of particulars in the administrative context. Robertson J.A. makes two important observations:

(a) “Adjudicative hearings of a formal nature require a more detailed notice than one given with respect to investigations or informal proceedings.”(para.36)

(b) “In addition to the distinction drawn between formal and informal proceedings, the duty to supply particulars is said to be more demanding in cases where a tribunal is called on to make a finding of misconduct or incompetence that is likely to cause damage to a person’s reputation or that will deprive that person of an important right or benefit…At the same time the law does not insist on the same level of detail, precision and accuracy as it does in connection with criminal proceedings. For example, multiple and overlapping particulars of conduct alleged to comprise professional misconduct have not been viewed in the same light as ‘counts’ in a criminal indictment.”(para.38)

[38] After making these observations, the New Brunswick Court of Appeal concluded that a notice of hearing should satisfy two standards: the requirements of the applicable statute and the parties must be able “to appreciate the issues to be heard and decided.” The court then suggested that the following questions should be asked to determine if a notice of hearing is sufficiently detailed to meet the duty of procedural fairness (at para. 43):

1. Does the document provide sufficient particulars “to enable a member to identify, by implication, that which is not explicit”?
2. Does the document include enough facts “to enable the member to tie the allegation of wrongdoing to his or her conduct”?
3. Is there a sufficient connection between the alleged wrongdoing in the document and the eventual findings of the administrative tribunal?

[39] In Rudinskas v. College of Physicians and Surgeons of Ontario, 2011 ONSC 4819, at para. 50, the Divisional Court confirmed that notices of hearings in discipline cases are “not to be construed in the same way as a criminal indictment”.

[40] In Yar v. College of Physicians and Surgeons of Ontario, [2009] O.J. No. 1017 (Div. Ct.), the member argued that since the Notice of Hearing did not have sufficient details about the alleged acts of incompetence and breached standards of practice, the Discipline Committee lacked the jurisdiction to hear the matter. The court read the Notice in light of the statements and evidence presented during the entire disciplinary proceedings and concluded that the member understood the issues to be addressed. In doing so, the court referred to the governing legislative provision, namely, s. 8 of the SPPA.

[41] Section 8 of the SPPA reads, as follows:

8. Where the good character, propriety of conduct or competence of a party is in issue in a proceeding, the party is entitled to be furnished prior to the hearing with reasonable information of any allegation with respect thereto.

[42] Rule 3.1 of the Ontario Racing Commission Rules of Procedure sets out the power to order particulars (and disclosure) and makes it clear that the guiding principle for the Commission is to order “such further particulars, information or documents as the Commission considers necessary for a full and satisfactory understanding of the issues in the proceeding”.

[43] In this case, the Notice of Proposed Order to Suspend Licences sets out the following particulars of the misconduct complained of:

(i) Jeffrey Brooks permitted David Brooks to be “heavily involved with the purchase, training decisions and payment arrangements involving their horses and stables”.

(ii) In 2009, a total of 105 Bulletproof horses raced a total of 1014 times and earned $6.5 million in Ontario. In 2010, horses owned by Bulletproof raced a total of 21 times in Ontario and earned $112,800.

(iii) In 2009, David Brooks paid the purse money he owed to Kawartha Downs using a bank draft drawn on the Bulletproof account.

(iv) Jeffrey Brooks permitted David Brooks to have contact with and provide instructions to the trainers of Jeffrey Brooks’ horses.

(v) Jeffrey Brooks permitted David Brooks to negotiate training fees and the payment of invoices with industry participants for horses owned by Jeffrey Brooks.

(vi) Bulletproof has been the subject of several civil suits and outstanding judgments to industry participants (the particulars of these suits are given).

(vii) The specific Rules that the Applicants were alleged to have violated were cited.

(viii) An allegation with no particulars was made regarding a threat of bodily harm and using insulting, offensive or improper language. In the Merits Decision, the panel did not find that the ORC had satisfied its burden with respect to this allegation.

[44] Prior to the hearing, the ORC provided the Applicants with 15 volumes of disclosure. Each binder contained an index describing the contents of that binder.

[45] At the merits hearing, the ORC called witnesses to testify as to the contact that people who worked for Bulletproof had had with David Brooks. The evidence related to the period from 2008 to 2010. In addition to the witnesses, the ORC filed telephone records for the period in 2009 when Bulletproof won over $6 million in purses. These records show over 1000 telephone calls between David Brooks and the hands-on trainer who was in charge of the Bulletproof horses who raced. The timing of these calls showed that the “intense cluster” was made on race dates for significant racing events at prominent race tracks in Ontario.

[46] There was also evidence from witnesses who testified as to their difficulties collecting payment from Bulletproof. Some of these witnesses testified to contact with David Brooks. One witness testified that Jeffrey Brooks threatened to burn his house down.

[47] This evidence directly relates to the allegations set out in the Notice of Proposed Order to Suspend Licences and to the disclosure provided. Further, at no time during the course of the hearing was any suggestion made that the Applicants were surprised by the evidence being called.

[48] Given this, I find that the necessary threshold for the provision of particulars was met. The Applicants had reasonable information of the allegations against them and had “a full and satisfactory understanding of the issues in the proceeding”. The wrongdoing alleged in the Notice of Proposed Order to Suspend Licences was directly connected to the eventual findings of the tribunal at the merits hearing. The Applicants were able to appreciate the issues to be heard and decided.

[49] Therefore, I conclude that the finding in the Procedural Decision that the Applicants had received disclosure and particulars was a reasonable one.

The Merits Decision

Participation of the Vice-Chair

[50] As already indicated, the Vice Chair’s term expired on November 7, 2012, the day after the release of the Procedural Decision and months before the hearing on the merits began on May 14, 2013.

[51] It is accepted that, prior to the commencement of the merits hearing, no viva voce evidence had been heard and none of the materials filed in relation to the Procedural Decision were entered as exhibits for the purposes of the merits hearing.

[52] The Applicants did not know that the Vice Chair’s term had expired until this fact was disclosed in the Merits Decision, at para. 5, which reads:

Vice Chair Donnelly’s appointment to the ORC expired November 7, 2012. His authority to continue this matter thereafter is as follows:

▪ On June 7, 2012, (five months prior to expiration of Donnelly’s appointment) counsel for the Administration and Brooks appeared before this Panel to fix a date for pre-hearing motions relating to disclosure and particulars. The Motions proceeded on the date agreed upon by counsel, being September 6, 2012. The Ruling on the Motions accompanied by Reasons was released on November 6, 2012.

▪ Section 4.3 Statutory Powers Procedures Act provides:

‘If the term of office of a member of a tribunal who has participated in a hearing expires before a decision is given, the term shall be deemed to continue, but only for the purpose of participating in the decision and for no other purpose.’

▪ Having been seized of this Hearing by virtue of ruling on the preliminary Motions, and the Hearing date having been fixed as counsel agree, this Panel continued to final disposition pursuant to S4.3 SPPA.

[53] The Applicants argue that s. 4.3 did not apply in this case, because a hearing only commences once evidence has been filed. In this case, no such evidence had been filed.

[54] The Applicants also submit that it is clear that the Merits Decision was written by the Vice Chair, and, even if the Vice Chair had the right to “participate” in the merits hearing, he did not have the right to take an active and controlling role by writing the decision.

[55] Finally, the Applicants argue that the rules of natural justice were breached when they were not given an opportunity to make submissions on the Vice Chair’s participation in the hearing.

[56] In Piller v. Assn. of Ontario Land Surveyors, 2002 44996 (ON CA), [2002] O.J. No. 2343 (C.A.), the Court of Appeal for Ontario dealt with a situation where the term of one of the panel members of a Discipline Committee (constituted under the Surveyors Act, R.S.O. 1990, c. S.29) expired after the panel had heard a number of preliminary motions and made an interim order. However, the member’s term expired before any oral evidence had been heard.

[57] In the decision, the court considered s. 4.3 of the SPPA and explored the question as to when an administrative proceeding can be considered to have commenced. At para. 37, Gillese J.A., writing for the court, states:

Understood in the context of an administrative hearing where the sole purpose for which the panel is convened is to deal with matters relevant to the disciplinary matter before it and there is no other forum for preliminary matters to be considered, in my view, the hearing of the preliminary motions resulted in the commencement of proceedings.

[58] In Piller, the court also went on to consider whether in the proceeding before it evidence had been “heard” because of a provision in the Surveyors Act that provides that a Committee member whose term has expired before the proceeding is disposed, but after the evidence has been heard, is deemed to remain a member of the Committee until the proceeding is disposed of. The Act at issue here contains no such reference, and neither does s. 4.3 of the SPPA. Thus, the question of whether evidence had been heard is not necessary to the analysis in this case.

[59] In this case, the sole purpose for which the panel was convened was to deal with the disciplinary proceedings against the Applicants. The Act provides no other forum for dealing with preliminary matters and, thus, the Vice Chair’s participation in the hearing commenced with his participation in the procedural motions. In other words, the Vice Chair was correct when he found that by virtue of s. 4.3 of the SPPA, he was entitled to continue to participate in the hearing until a decision was made.

[60] I do not accept that the use of the word “participate” in s. 4.3 should be read in the manner suggested by the Applicants. There is nothing in the wording of the section that circumscribes in any way the nature of the member’s participation and there is no legislative purpose that would be served by reading in any such limitation. As Gillese J.A. noted in Piller, at para. 46, “There is nothing in s. 4.3 or the SPPA as a whole to suggest that the words should be given anything other than their ordinary meaning.”

[61] I do agree that it would have been preferable for the Vice Chair to have raised the issue with the parties so that they would have had an opportunity to make submissions on the issue. The risk of not doing so is obvious—if he had been wrong, the matter would have had to be reheard by a different panel. However, the Applicants’ rights to natural justice were not breached by the Vice Chair’s failure to hear submissions on an issue that did not affect the case they had to meet or the manner in which the hearing against them proceeded.

The Quality of the Evidence and the Adequacy of the Reasons for the Merits Decision

[62] The Applicants made three other submissions in relation to the Merits Decision:

1. The evidentiary record was not satisfactory and sufficient to establish the allegations against the Applicants “on a clear and cogent basis”;

2. The reasons for the Merits Decision did not adequately deal with the evidence that did not support the position of the ORC regarding David Brooks’ involvement with Bulletproof and the reasons did not assess the eligibility or ineligibility of a horse to participate in a race on a horse-by-horse basis. According to the Applicants, such an assessment was required before the purses won by a horse could be the subject of a forfeiture order; and,

3. The reasons contain findings that Jeffrey Brooks was compliant in David Brooks’ criminality, findings on allegations that were not contained in the Notice of Proposed Order to Suspend Licences on which the substantive proceedings were based. According to the Applicants, making these findings and relying on them was a breach of natural justice.

[63] With respect to issues that do not raise concerns of procedural fairness, the standard of review applicable to the Commission’s decisions is reasonableness: see McNamara v. Ontario (Racing Commission), 1998 7144 (Ont. C.A.).

[64] The reasonableness standard is concerned with whether there is “justification, transparency and intelligibility within the decision-making process” and “whether the decision falls within the range of possible, acceptable outcomes which are defensible in respect of the facts and law”: see Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47. Under this standard, the question before the reviewing court is not whether it agrees with the decision, as the standard allows for the possibility that there may be more than one reasonable answer to a particular question. A tribunal’s decision is unreasonable “only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived”: see Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, at para. 55.

[65] A reasonableness review does not require the tribunal to consider and comment upon every issue raised by the parties (Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708), nor does it “mean that every element of the reasoning given must independently pass a test for reasonableness” (Ryan, supra, at para. 56). For reviewing courts, the issue is whether the decision, viewed in the context of the record as a whole, is reasonable. Further, under the reasonableness analysis, “the court must first seek to supplement [the reasons] before it seeks to subvert them”: see Newfoundland Nurses, supra, at para. 12, citing D. Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, in M. Taggart, ed., The Province of Administrative Law (Oxford: Hart Publishing, 1997) 279, at p. 304.

[66] In oral argument, the Applicants’ counsel conceded that the burden of proof on the ORC was to prove the allegations against the Applicants on a balance of probabilities. Counsel also acknowledged that there was evidence from which the Commission could draw the conclusions that it did. However, according to counsel, the overwhelming preponderance of the evidence from the witnesses was to the effect that, from 2008 onwards, it was Jeffrey Brooks, not David Brooks, who made the decisions regarding Bulletproof and the horses in issue. Yet, in the Merits Decision, the Commission did not deal with this evidence and, instead, chose to rely on telephone records, most of which were between a witness who was never called to testify (Josh Marks, the hands-on trainer for the horses) and a phone number attributed to David Brooks.

[67] In support of this submission, the Applicants rely on the decision of the Court of Appeal in Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, [2010] O.J. No. 1046 (C.A.), in which the court set aside a decision of the Law Society Hearing Panel because it found that the Hearing Panel’s reasons for judgment were inadequate: i.e., its assessment of credibility was generic and conclusory, with little explanation provided for its analysis; there was no analysis conducted with respect to the solicitor’s credibility; and there was no analysis of the contradictory evidence.

[68] The same cannot be said of the Merits Decision reasons. The decision accurately summarizes the evidence of all the witnesses, including the evidence supporting the position of the Applicants (neither Jeffrey nor David Brooks testified). The decision also details what evidence the Commission accepted and what evidence it did not and why. In doing so, the Commission noted that the panel was not in a position to compel the appearance of Josh Marks to testify and he chose not to appear. It did rely on the telephone records and the cluster of calls that occurred between a telephone number associated with Josh Marks and a telephone number associated with David Brooks on the days that important races were being run by Bulletproof horses. The Commission deals with the significance of these calls, as follows, at para. 67:

In timing, frequency and consistency, clustered around races for increased purses, those calls, if casual, would seem to be unwelcome in the context of trainer preparations for an important race. If the calls were a nuisance, the simple expedient would have been to turn off the telephone. If they were not a nuisance they would seem to have been with a person in authority. That person in authority hypothesis is supported by the fact that many of the calls were originated by Josh Marks’ phone.

[69] Later on in the decision, the Commission contrasted the large number of calls between Josh Marks’ phone and David Brooks’ phone on important race dates and times with the small number between the same phone and Jeffrey Brooks’ phone on the same dates and times.

[70] It is true that Tracey Brainard, who trained for Bulletproof in 2009 and 2010, testified that when she spoke to David Brooks, he did not give instructions about the horses. The Commission chose not to believe her evidence, partly because they found that she had a motive for not being forthright and partly because her evidence did not accord with the other telephone records—particularly the records relating to the calls between Josh Marks’ phone and David Brooks’ phone. The Applicants argue that Ms. Brainard was never confronted with the inconsistency between her evidence and the other telephone records while she was on the stand, and, thus, it was unfair to use this evidence to undermine her credibility. This argument is undermined by the fact that Ms. Brainard was the Commission’s witness, and, as such, it was not in a position to cross-examine her about her testimony.

[71] It is true that the Commission did not analyze the evidence on a horse-by-horse basis. However, the position of the ORC, which the Commission obviously accepted, is that this was not necessary. All that the ORC had to do to justify the forfeiture order was to establish, on a balance of probabilities, that, during the time period that the purse awards in question were won, David Brooks had a direct role in controlling the activities of Bulletproof. In my view, this approach to the case was a reasonable one.

[72] With respect to the findings about Jeffrey Brooks’ compliance in David Brooks’ criminality and the failure to make this allegation in the Notice of Proposed Order to Suspend Licences, it was not necessary for the ORC to prove Jeffrey Brooks’ compliance in David Brooks’ criminal activity in order to support the allegations it was making. What was necessary was to provide sufficient evidence, which it did, to support a finding that Jeffrey Brooks, knowing of David Brooks’ ineligible status, permitted him, through Bulletproof, to participate in racing in Ontario. In this regard, the Commission found, at para. 130:

With knowledge of David Brooks’ criminal activity and prohibited racing status, Jeffrey Brooks actively and flagrantly flaunted the licensing provision of racing by providing David Brooks with unlimited access to racing. That gross criminal presence was prominent across the leading edge of racings premier events.

[73] This finding was available to it on the evidence before it and was a reasonable one.

[74] For these reasons, I find that there is no basis to challenge the Merits Decision. The decision was a reasonable one and was not made in contravention of the rules of natural justice.

Conclusion

[75] For these reasons, I would dismiss the application. As agreed to by the parties, as the successful parties, the Respondents are entitled to their costs of the application, fixed in the amount of $20,000, all inclusive.

H. SACHS J.

STEWART J.

PATTILLO J.

Released: 20160311

CITATION: Brooks v. Ontario Racing Commission, 2016 ONSC 1136

DIVISIONAL COURT FILE NO.: DC-13-502-JR

DATE: 20160311

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

H. SACHS, STEWART and PATTILLO JJ.

BETWEEN:

JEFFREY BROOKS and BULLETPROOF ENTERPRISES Applicants

– and –

ONTARIO RACING COMMISSION and DIRECTOR OF THE ONTARIO RACING COMMISSION Respondents

REASONS FOR JUDGMENT

H. SACHS J.

Released: 20160311