Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
FILE: 9445/GCA
CASE NAME: 9445 v. Registrar of Alcohol and Gaming
Appeal from a Notice of Proposed Order of the Registrar under the Gaming Control Act, 1992, S.O. 1992 c. 24 - to Revoke Registration
Trang Thi Kim Do Appellant
-and-
Registrar of Alcohol and Gaming Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Patricia McQuaid, Vice-Chair
APPEARANCES:
For the Applicants: Sarah Molyneaux, Counsel
For the Respondent: Bryna Kaplan, Counsel Rena Khan, Counsel
Heard in Toronto: August 18, 2015
REASONS FOR DECISION AND ORDER
BACKGROUND
The Registrar of Alcohol and Gaming (the “Registrar”) under the Gaming Control Act, 1992, (the “Act”) issued an Order dated October 30, 2013, which immediately suspended the registration of Trang Thi Kim Do (the "Appellant"). A hearing was held before the Tribunal in December, 2013, to consider her appeal of that order. In a decision issued on January 10, 2014, Vice-Chair Weary confirmed the Registrar’s order with the result that the Appellant remained suspended. She has not worked in her position as a category 2 gaming assistant (a dealer at the Great Blue Heron Charity Casino) since July 2013.
On February 25, 2015, the Registrar issued a Notice of Proposed Order to revoke the Appellant’s registration. In that Proposed Order, the Registrar notes that the criminal charges against Ms. Do were withdrawn by the Crown on October 31, 2014. The criminal charges stemmed from the discovery of a “grow op” in the house owned by the Appellant; specifically, charges of possession of marijuana for the purposes of trafficking, production of marijuana and theft of electricity were laid against the Appellant, her spouse and two others. The Registrar states in the Notice of Proposed Order that there is no new evidence subsequent to the Tribunal decision of January 2014.
The Registrar is of the belief that there are reasonable grounds to conclude that the Appellant will not act as a gaming assistant in accordance with law, or with integrity, honesty or in the public interest as evidenced by the serious nature of the conduct giving rise to the initial order of immediate suspension, and the Tribunal’s decision of January 2014.
EVIDENCE
Gary White, a senior manager with the Alcohol and Gaming Commission of Ontario (“AGCO”) with responsibility for the registration and administration of gaming assistants, gave evidence for the Registrar. He reiterated that the Registrar relies on the findings made by Vice-Chair Weary; in particular, her conclusion that Ms Do “was purposely evasive and obfuscated her testimony” and that she was not honest with the AGCO investigator or the Tribunal. It is the Registrar’s assessment that Ms Do’s untruthfulness and evasiveness leading up to the criminal charges and in her interaction with the AGCO investigator put her integrity and honesty in direct question. Mr. White stated that this is the backbone of the Registrar’s case. It is irrelevant to the Registrar that she has employee and supervisor support at her workplace or that she has a good employment record over a period of 10 years, with no disciplinary history. Her past conduct in relation to the criminal charges negates all of that. In the Registrar’s opinion, her personal life cannot be severed from her professional life.
Mr. White also stated that even if there had been an acquittal on her criminal charges, the Registrar’s position would be the same, given the concerns about her integrity and honesty.
Regarding the withdrawal of the charges, the Registrar’s position is that this does not speak to Ms Do’s guilt or innocence. The documentary evidence produced by the Appellant, which was not disputed by the Registrar, reveals that Ms Do’s husband did plead guilty to one charge and received a six month less one day conditional sentence with 18 months’ probation. During the six month sentence, he was permitted to leave the house for work and necessary appointments.
The Tribunal heard testimony from several of the Appellant’s co-workers: Andrew Suh, Robert Milford, Swee Pang and Theresa Kroekenstaal. Each spoke to her work ethic, and those who had a supervisory role confirmed that they had no knowledge of any disciplinary action taken against her. They emphasized that the casino has very strict policies in place in large part due to risk of theft and possible impact on the integrity of casino operations. They described Ms Do as having a good working relationship with her co-workers and with casino customers. None expressed concern about having her return to the workplace.
As she did at the December 2013 hearing, the Appellant testified, with the assistance of an interpreter. The Appellant is 39 years old and the mother of two young children. She came to Canada from Vietnam in 1993 with her parents and six of her sisters. She has a high school education. She took a dealer training course at Durham College and was hired by the casino in 2003. She was on maternity leave at the time of the incident that gave rise to the criminal charges and was scheduled to return to work in July 2013; however, because of the criminal charges and the subsequent order of suspension, she has not returned to work. She has had little other employment though she has done some volunteer work at her family doctor’s office.
Ms Do did disclose the charges to the Registrar; the evidence before the Tribunal is that it was through that communication that the Registrar first became aware of the charges and then commenced his investigation. Ms Do stated that she is aware of the requirement to report to the Registrar “whenever you do something wrong”. She gave the example of driving over the speed limit; it must be disclosed. And in fact, she did disclose such information on a registration renewal. She is aware that the policies of the casino and the AGCO require a high level of honesty.
Ms Do was extremely emotional when telling the Tribunal about the impact of these events and the suspension on her and her family, particularly her children. Her plea is that the Tribunal restore her registration so that she can work and provide for her children.
THE LAW
The relevant provisions of the Act are as follows.
Registration of gaming assistants
- The Registrar shall refuse to register an applicant as a gaming assistant or to renew the registration of an applicant as a gaming assistant if,
(a) there are reasonable grounds to believe that the applicant will not act as a gaming assistant in accordance with law, or with integrity, honesty, or in the public interest, having regard to the past conduct of the applicant or persons interested in the applicant; or
Registrar’s proposed order
- (1) If the Registrar refuses to grant or renew a registration or proposes to suspend or revoke a registration, the Registrar shall serve notice of a proposed order, together with written reasons, on the applicant or registrant.
Right to hearing
(2) The notice of the proposed order shall inform the applicant or registrant that the person is entitled to a hearing before the Tribunal
Order of Tribunal
(8) After holding a hearing, the Tribunal may by order,
(a) confirm or set aside the proposed order;
(b) direct the Registrar to take such action as the Tribunal considers the Registrar ought to take to give effect to the purposes of this Act.
Discretion of Tribunal
(9) In making an order, the Tribunal may substitute its opinion for that of the Registrar.
APPLICATION OF LAW TO FACTS
The Tribunal notes here that Ms Do testified about the financial hardship that the suspension has caused. That is no doubt true. However, as the jurisprudence suggests, that factor is not relevant to the issue of “integrity and honesty” that is the crux of this hearing.
Ms Kaplan submitted in her closing that but for the withdrawal of the criminal charges against the Appellant, nothing has changed since the December 2013 hearing before the Tribunal and that the decision by Vice-Chair Weary, in particular on issues of credibility, should be given much weight. Indeed, this panel should be bound by her decision. At the same time, Ms Kaplan does acknowledge that each case should be decided on the basis of evidence heard.
Vice-Chair Weary did make significant findings, unfavourable to this Appellant, based on the testimony she heard. However, it is a basic administrative law principle that a member hearing a matter must decide on the basis of what she has heard: she who hears, must decide. This Tribunal cannot defer to a previous hearing member’s findings on the evidence, or her assessment of credibility. Vice-Chair Weary was deciding the matter in the context of an immediate suspension order. She made a finding, based on the evidence before her, that Ms Do knew her property was being used as a grow op, whether or not she was actively involved in the cultivation and sale. At that time, charges were pending against Ms Do for what the Registrar submitted were significant breaches of the law. At this time, there are no such charges. And while the withdrawal of charges is neither a determination by a court of guilt or innocence, it does mean that the presumption of innocence prevails.
In the same way that this Tribunal cannot delegate its decision to a prior panel, it cannot make its decision solely based on the opinions of her co-workers who have found her to be an honest and good employee. The Tribunal must, as both Ms Kaplan and Ms Molyneaux submitted, review the issues of honesty and integrity in the context of all of her cumulative past conduct. That means, as suggested by Ms Kaplan through her reference to the decision in Roadsport Automotive Inc. (Re) [1998] O.C.R.A.T.D. No. 138, one cannot compartmentalize the personal from the professional. The logical conclusion from this, however, is that the Tribunal cannot, in assessing the evidence in the context of the test prescribed by the legislation, pay little or no heed to the work record of Ms Do, though the Registrar suggests just that. As stated by Vice-Chair Koprowski in K.D.R. v. Registrar of Alcohol and Gaming, 2014 CanLII 18121 (ON LAT), when one considers past conduct, the period of years during which an appellant was steadily employed at the gaming facility cannot be ignored. That period involves “past conduct” as much as any breaches of the law relied on by the Registrar.
What then is the past conduct which this Tribunal must consider? Ms Do appears to have an unassailable work record over a ten year period at the Great Blue Heron Casino. No evidence was led by the Registrar to dispute that. While on maternity leave, serious criminal charges were laid against her. Ms Do disclosed those charges to the AGCO, before her return to work, just as she had previously disclosed a speeding infraction, because she is cognizant of the requirement of honesty. The AGCO conducted an investigation as a result of the disclosure of the criminal charges and based on her conduct through that investigation, found her to be evasive and untruthful which led the Registrar to the belief that an immediate suspension was appropriate. At that time, the charges were recent and, though they were only allegations, they were “as serious as it gets,” according to one of the Registrar’s witnesses at the previous hearing. At this time, the charges have been withdrawn and Ms Do is therefore presumed to be innocent of any such charges.
Regarding Ms Do’s testimony, Vice-Chair Weary, in her assessment, found that the “modifications and alterations made during her testimony are not simply a result of language barriers.” In other words, she did not find her credible. As Mr. White stated in his testimony, the Registrar relies upon Ms Do’s ‘evasive conduct in dealing with the AGCO investigator’, as the basis for his Notice of Proposed Order to revoke the registration. Given that the charges having been withdrawn, this conduct is left as the core of the Registrar’s case.
In the current hearing, this Tribunal found that the Appellant had language barriers, even with the assistance of an interpreter. Even if Ms Do was not credible in the earlier hearing, that does not mean this Tribunal should find her to be similarly not credible in this hearing. In the current hearing, Ms Do made a concerted effort to give her testimony in a straightforward and honest manner. In any event, it would be difficult to sustain a revocation of registration solely on the basis that the Appellant was not credible at a previous Tribunal hearing. Whether the Appellant was evasive or not at that time and in her interactions with the AGCO investigator cannot, in and of itself, be determinative of the issue whether having regard to the Appellant’s past conduct, there are reasonable grounds to believe that she will not act as a gaming assistant in accordance with law, or with integrity, honesty, or in the public interest.
Section 11 of the Act refers to “public interest”. As Ms Kaplan submitted, the casino industry is highly cash intensive and as such is a high risk environment. The public must have confidence that the persons working within the casino have honesty and integrity. There was no evidence that the Appellant, in her 10 years employment at the casino, nor in the past two years, has put the public interest at risk. The Tribunal has weighed the evidence of the Appellant’s past conduct, including the decision made by Vice-Chair Weary, and considered the likely future conduct in light of that past conduct. In assessing all of the Appellant’s past conduct, the Tribunal concludes that it does not afford reasonable grounds to believe that the Appellant will not act in accordance with the law, or with integrity and honesty, or in the public interest.
ORDER
Pursuant to the authority vested in it pursuant to the Act, the Tribunal directs the Registrar not to carry out the Proposed Order.
LICENCE APPEAL TRIBUNAL
Patricia McQuaid, Vice-Chair
Released: August 27, 2015