CITATION: Registrar of Alcohol, Gaming and Racing v. MacLaren, 2018 ONSC 6576
DIVISIONAL COURT FILE NO.: 003/18
DATE: 20181114
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Mullins and Myers JJ.
BETWEEN:
Registrar of Alcohol, Gaming and Racing
Appellant
– and –
Jeffrey Lyndon MacLaren
Respondent
Brendan van Niejenhuis and Tiffany O’Hearn Davies, for the Appellant
No one appearing for the Respondent
HEARD at Toronto: October 9, 2018
H. Sachs J.
Introduction
[1] On August 2, 2017, the Appellant issued an Order of Immediate Suspension and a Notice of Proposed Order to Revoke a Licence (“NOPO”) with respect to the Respondent’s licence as a “jockey and as an exercise person-quarter horse”. The Respondent appealed the NOPO and suspension to the Licence Appeal Tribunal (the “Tribunal”). On November 9, 2017 the Tribunal directed the Registrar not to carry out the NOPO to revoke the Respondent’s licence and ordered that the immediate order of suspension be set aside. This is an appeal from that decision.
[2] The Respondent did not appear or file any materials in relation to the appeal.
[3] For the reasons that follow I would set aside the Tribunal’s decision and remit the matter to the Tribunal for a re-hearing by a differently constituted panel.
Factual Background
[4] The Respondent has held a licence in the horse racing industry since 1996.
Prior Discipline History
[5] On August 24, 2011 an Order of the Stewards (racing officials) found that the Respondent “was observed to be using profane language and obnoxious behaviour towards Racing Officials, while in the performance of their duties” and “was also observed, outside the Stewards’ office, by the Stewards and participants of racing, using profane language and behaviour prejudicial to the best interests of racing.” The Stewards noted that the Respondent’s “conduct had been continually aggressive throughout this racing season and his history of behavioural problems finally grew to a head.”
[6] As a result of this conduct, the Respondent was suspended for the remainder of the 2011 quarter horse racing season, placed on probation for the entire thoroughbred and quarter horse racing season, and committed to completing an anger management course.
The Events Giving Rise to the Appeal
[7] The Respondent completed the 2012 horse racing season under the conditions that had been set in August of 2011 without incident. Due to an injury, he did not ride at all from 2013 to 2016. He returned to racing for the 2017 season.
[8] On July 16, 2017, just prior to a race at Ajax Downs, the Respondent, while in the jockeys’ room, told Tony Phillips, another jockey, that he was going to “take Mr. Phillips out” of the race. He repeated the threat near the gate as the horses were circling to race. The race ultimately unfolded without incident.
[9] After the race Mr. Phillips reported the Respondent’s pre-race comments to Mr. Broadstock, the owner of the horse he was riding and also a licensee. Mr. Broadstock reported the threats to the racing officials at Ajax Downs.
[10] The racing officials conducted an investigation (which did not include an interview with the Respondent) and on July 20, 2017, based on their initial interviews of Mr. Phillips and others with knowledge of the incident, decided to suspend the Respondent pending a completion of their investigation.
[11] When the Respondent was informed of the suspension in the racing officials’ office he started swearing at the officials and Mr. Broadstock. He then stormed out of the officials’ office and went to the jockeys’ room where he was advised that the suspension prevented him from working at any track in Ontario. At that point the Respondent engaged in another outburst full of expletives and threatened to beat up or kill Mr. Broadstock. He also threatened to go after Mr. Broadstock at his house.
[12] After being escorted off the Ajax Downs property by security, the Respondent proceeded directly to Mr. Broadstock’s farm where he broke three windows in Mr. Broadstock’s horse trailer, smashed the front windshield and two windows in Mr. Broadstock’s truck, and destroyed Mr. Broadstock’s mailbox. Mr. Broadstock’s wife and child were home alone. As a result of the Respondent’s behaviour they quickly retreated to the house and called the police.
[13] The Respondent was arrested just down the road from Mr. Broadstock’s farm. He was charged with uttering threats and mischief under $5,000. At the time of the Tribunal hearing these charges remained outstanding. On April 23, 2018, before the hearing of this appeal, the Respondent pleaded guilty to both counts and received a conditional discharge.
[14] On August 2, 2017 the Appellant issued the order of immediate suspension and a NOPO. The NOPO was issued pursuant to ss. 14 and 19 of the Horse Racing Licence Act, 2015, S.O. 2015, c. 38, Sch. 9 (the “Act”). Those sections provide that the Registrar “may propose to suspend or revoke a licence” if “there are reasonable grounds to believe that, when acting as a licensee, the applicant will not act in accordance with the law, or with integrity, honesty, or in the public interest, having regard to the past conduct of the applicant.” Both the NOPO and the order of immediate suspension were based on the events of July 16 and 20, 2017.
The Tribunal’ Decision
[15] In coming to its conclusion the Tribunal directed itself to the test for revocation set out by the Ontario Court of Appeal in Alcohol and Gaming commission of Ontario v. 751809 Ontario Inc. (Famous Flesh Gordon’s) 2013 ONCA 157 at para. 26 :
This test entails an examination of the past and present conduct of the person seeking to acquire or maintain the privilege of carrying on an activity licensed by the state…The purpose of the examination is to see if there are reasonable grounds for belief that the person will, in future, carry on the activity in a way that is not contrary to the public interest.
[16] The Tribunal accepted that being a jockey is a dangerous profession, where health and safety must be paramount and the rules of the track are a means of ensuring that health and safety.
[17] By way of context, the Tribunal noted that the Respondent was a “hot headed, volatile and outspoken individual, traits that he acknowledges” and that a “toxic undercurrent at the Ajax Downs track was the tense relationship between Mr. Broadstock and the [Respondent].”
[18] The Tribunal found, based on the evidence that it heard, that the Respondent’s comments in the jockeys’ room could be more fairly be characterized as “trash talk, which is part of the sport and something that the [Respondent] often engaged in, to get inside the heads of other jockeys.” While the Tribunal accepted that the Respondent “went too far,” it did not find that the comments signified a “lack of integrity” or “posed a danger to the health and safety of riders or horses.”
[19] With respect to his conduct towards racing officials, the Tribunal noted the Respondent’s prior discipline history for aggressive behaviour towards racing officials and found that his conduct on July 20, 2017 suggested that there may still be an issue “particularly with respect to racing officials.” The Tribunal also acknowledged that:
Racing officials such as Mr. Stewart, fulfill an important function at the racetrack and help to preserve the integrity and public confidence in racing. If a jockey disagrees with a ruling and thinks it unfair, they can avail themselves of the internal appeal process. The [Respondent] was familiar with that process.
[20] The Tribunal dealt with the threats towards Mr. Broadstock and the property damage at his farm in the following manner:
On these facts, I agree that the threats against Mr. Broadstock and the damage to property at the Broadstock farm which have resulted in criminal charges are concerning. The evidence regarding the toxic relationship between Mr. Broadstock and the [Respondent], though providing a backdrop to what occurred on July 20th, does not excuse the [Respondent’s] conduct. However, the jurisprudence on the statutory test in similar regulatory contexts suggests that criminal conduct (and here there was no evidence yet of the disposition of the charges) may not preclude registration or continued registration of a licensee. Further, the [Respondent], in his evidence, acknowledged and accepted responsibility for both his words and actions on July 20th, a factor to which I have given weight.
[21] Having considered all of the evidence the Tribunal concluded as follows:
After considering the evidence as a whole, particularly the evidence from the jockeys relating to the integrity of the [Respondent] as a professional jockey, even in the context of the words spoken on July 16th, as well as his concern for the safety of riders and horses – the significant public interest issue in this appeal, I conclude that the statutory test has not been met. There are not reasonable ground to believe that when acting as a licensee – as a jockey, the [Respondent] will not act in accordance with the law, or with integrity, honesty and in the public interest, having regard to his past conduct.
[22] The Tribunal ends its decision by noting ( correctly) that if it had made a finding under s. 14 of the Act, revocation would not have been the only reasonable conclusion. The Tribunal also noted that the Respondent had been suspended from racing since July 20th and that the Respondent might be “well advised” to take another anger management course.
Jurisdiction and Standard of Review
[23] Section 11 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G. provides that decisions of the Tribunal may be appealed to the Divisional Court, but only on a question of law.
[24] The Appellant concedes that the Tribunal’s decision is to be reviewed on the standard of reasonableness (2193145 Ontario Inc. v. Ontario (Registrar, Alcohol and Gaming), 2016 ONSC 3552).
Position of the Appellant on this Appeal
[25] The Appellant alleges that the Tribunal made two errors in law.
[26] First, the Tribunal erred in law in its interpretation of the “reasonable grounds to believe” standard under s. 14(a) of the Act. That standard requires only an objective basis for the belief which is based on compelling and credible information (Mugesara v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, at para. 114). It is a lower burden than a balance of probabilities. According to the Appellant, while the Tribunal recited the language of “reasonable grounds to believe,” the conclusion it reached shows that it applied this standard in a manner much closer to proof on a balance of probabilities.
[27] Second, the Tribunal erred in law in its interpretation of “when acting as a licensee” under s. 14(a) of the Act. The Appellant submits that the Tribunal only considered that the Respondent was acting as a licensee when he was on the race track, instead of appreciating that the Respondent’s conduct towards racing officials and at the Broadstock farm was directly connected to the activities in which a licensee must engage. The Respondent’s conduct was a direct reaction to disciplinary action and was aimed at another licensee whose complaint was the catalyst for the disciplinary action. As put by the Appellant at para. 45 of its factum:
On-track officials, including the racing Stewards, must exercise authority in a dangerous environment in which 1,200 pound animals are running at great speeds and in close quarters. Discipline and compliance by licensees with these rulings, directions and orders is critical; compliance with official direction must be reflexive and reliable if the inherent risks of horse racing are to be mitigated and unnecessary ones (such as deliberate “taking out” of other participants) eliminated.
[28] Connected to this point, the Appellant submits that the Tribunal erred in law in its interpretation of “law, integrity, honesty and the public interest” under s. 14(a) of the Act by failing to recognize the necessity of orderly and strict compliance with directions or orders properly made by racing officials. According to the Appellant, the Tribunal unduly restricted the public interest at stake to the safety of riders and horses on the track. In doing so it failed to appreciate the public interest engaged by the need for an orderly regulatory system, and the effect on that system if licensees abuse the officials who run that system and react to complaints from fellow licensees by going to their homes and causing property damage.
Analysis
[29] For ease of reference I will again set out the test that the Tribunal was to apply under s. 14(a) of the Act, namely were there “reasonable grounds to believe that, when acting as a licensee, the applicant will not act in accordance with the law, or with integrity, honesty, or in the public interest, having regard to the past conduct of the applicant.”
[30] The Appellant is correct that the concept of “reasonable grounds to believe” requires an objective basis for the belief which is based on compelling and credible information. It is something more than mere suspicion, but is a lesser burden than a balance of probabilities (Mugesara, supra).
[31] According to the Appellant, given the findings the Tribunal made, the only explanation for the Tribunal’s failure to find that the Registrar had met its onus is that it applied too high a burden of proof, a burden much closer to a balance of probabilities.
[32] There is nothing in the Tribunal’s reasons to support the Appellant’s assertion that the Tribunal erred in law in applying the wrong burden of proof, other than the fact that the Appellant does not agree with the Tribunal’s conclusion. In the absence of more, I am not prepared to find that the Tribunal committed the first error in law alleged by the Appellant.
[33] However, I find that the Tribunal did err in law in its interpretation of the phrase “when acting as a licensee.” Specifically, while the Tribunal recognized that racing officials “help to preserve the integrity and public confidence in racing,” it did not conduct an analysis as to how the Respondent’s past conduct impacted on his future willingness to accede to regulatory enforcement. Acting as a licensee under the Act encompasses more than just one’s activities while engaged in a race; it also involves having a relationship with the regulatory agency charged with enforcing the Act that does not undermine that body’s ability to fulfill its important public mandate.
[34] This point was made by the Divisional Court in Ontario v. Mander, 2018 ONSC 1795, a case involving a person who sought to be registered as a motor vehicle salesperson in Ontario. The Registrar, under the Motor Vehicle Dealers Act, 2002, S.O. 2002, c. 30 (“MVDA”), refused Mr. Mander’s application for registration because there was a warrant outstanding for his arrest in Alberta resulting from his failure to attend court in that jurisdiction. Mr. Mander appealed the Registrar’s refusal to the Tribunal and the Tribunal ordered that Mr. Mander be registered subject to a condition that he deal with the outstanding matters against him in Alberta. In coming to its conclusion the Tribunal found that Mr. Mander’s failure to show up to court did not raise any concerns about his integrity and honesty when dealing with consumers.
[35] The Registrar appealed the Tribunal’s decision to the Divisional Court. The Divisional Court held that the Tribunal erred in law because “it failed to consider the broader meaning of the term ‘carry on business in accordance with the law’, and in our view this failure takes the Tribunal’s decision out of the range of reasonable results or possible acceptable outcomes” (para. 29). According to the Divisional Court in Mander, “[t]he ability to ‘carry on business in accordance with the law’ encompasses more than just the applicant’s dealing with consumers. It also includes his relationship with the regulatory agency charged with enforcing the MVDA and, potentially, the court” (para. 28).
[36] In the case at bar, the Tribunal reached its conclusion by focusing its analysis on whether the evidence as a whole convinced it that the statutory test had been met with respect to the Respondent’s activities when acting as a jockey on the race track. It found that it had not because, among other things, the Respondent had a real concern for the safety of riders and horses. The Tribunal does not deal with the other important public interest at stake in the appeal before it – the Respondent’s activities when responding to the actions of his regulatory agency and how those activities reflect on his ability to be governed by that agency. This limitation is apparent from para. 42 of its decision, which I reproduce again:
After considering the evidence as a whole, particularly the evidence from jockeys relating to the integrity of the [Respondent] as a professional jockey, even in the context of the words spoken on July 16th, as well as his concern for the safety of riders and horses – the significant public interest issue in this appeal, I conclude that the statutory test has not been met. There are not reasonable grounds to believe that when acting as licensee – as a jockey, the [ Respondent] will not act in accordance with the law, or with integrity, honesty and in the public interest, having regard to his past conduct. (emphasis added)
[37] Immediately prior to reaching this conclusion, the Tribunal considered the evidence about the Respondent’s conduct at the Broadstock farm, conduct that the Respondent had acknowledged was not in accordance with the law. The Tribunal found that criminal conduct does not necessarily preclude registration for a licensee. This is correct. However, what the Tribunal does not acknowledge or deal with is the connection between the Respondent’s criminal conduct and the Respondent’s responsibility as a licensee to allow himself to be governed by his regulatory body. This is important because the conduct was directly related to the disciplinary action that the racing officials had taken against the Respondent. It occurred in reaction to the suspension and it was directed at another licensee whose complaint had led to that disciplinary action. This raises a real question about the Respondent’s governability as a licensee.
[38] The concern about the Respondent’s governability is reinforced by the Respondent’s prior aggressive conduct towards racing officials and the Tribunal’s acknowledgment that the problem that led to that conduct (anger management) does not appear to have been resolved.
[39] Racing is a dangerous sport. As the Tribunal noted, “racing officials…fulfill an important function at the racetrack and help to preserve the integrity and public confidence in racing.” While the Tribunal acknowledged the importance of this function, it did not go on to analyze how the Respondent’s behaviour, taken as a whole, undermined and will continue to undermine the ability of his regulatory body to do its job. The Tribunal’s failure to conduct this analysis constitutes an error in law and renders its decision an unreasonable one.
Conclusion
[40] For these reasons I would allow the appeal, set aside the Tribunal’s decision and remit the matter back to the Tribunal for a re-hearing in accordance with these reasons by a differently constituted panel.
[41] The Appellant seeks its partial indemnity costs fixed in the amount of $12,500. In my view, this amount is excessive for an unopposed appeal and I would fix the Appellant’s costs at $7,500, all inclusive.
Sachs J.
I agree _______________________________
Mullins J.
I agree _______________________________
F.L. Myers J.
Released: November 14, 2018
CITATION: Registrar of Alcohol, Gaming and Racing v. MacLaren, 2018 ONSC 6576
DIVISIONAL COURT FILE NO.: 003/18
DATE: 20181114
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Mullins and Myers JJ.
BETWEEN:
Registrar of Alcohol, Gaming and Racing
Appellant
– and –
Jeffrey Lyndon MacLaren
Respondent
REASONS FOR JUDGMENT
Released: November 14, 2018