Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2015-10-13

FILE:

9663/GCA

CASE NAME:

9663 v. Registrar of Alcohol and Gaming

Appeal from the Notice of Proposed Order of the Registrar under the Gaming Control Act, 1992, S.O. 1992 c. 24 - to Refuse Registration

Harjinder Singh Tiwana

Appellant

-and-

Registrar of Alcohol and Gaming

Respondent

AMENDED REASONS FOR DECISION AND ORDER

ADJUDICATOR:

Laurie Sanford, Vice-Chair

APPEARANCES:

For the Appellant:

Self-represented

For the Respondent:

Aviva Harari, Counsel

Heard in Toronto:

September 25, 2015

DECISION AND ORDER

Background

Mr. Harjinder Singh Tiwana wants to continue working as a gaming assistant, specifically as a “runner”, for a bingo hall. By virtue of a 2014 change in registration requirements, that position now requires registration under the Gaming Control Act, 1992 (the “Act”). The Registrar of Alcohol and Gaming (the “Registrar”) proposes to refuse Mr. Tiwana’s application for registration and Mr. Tiwana appeals that proposed order to this Tribunal.

The Registrar cites two grounds for denying Mr. Tiwana’s application for registration. First, the Registrar contends that Mr. Tiwana’s employment history demonstrates industry specific misconduct. Second, the Registrar refers to Mr. Tiwana’s conviction for a violation of a restraining order as criminal conduct which ought to disentitle Mr. Tiwana to registration.

The issue for this Tribunal is whether Mr. Tiwana’s application for registration ought to be granted. The Tribunal concludes that Mr. Tiwana should be registered under the Act as a runner for his current employer subject to certain terms and conditions.

Evidence

Two people gave evidence for the Registrar. Mr. Tiwana gave evidence on his own behalf.

Maria Colalillo testified that she has been employed with the Ontario Lottery and Gaming Commission (“OLG”) since 1999 and since 2004 as a Human Resources Manager. She testified that Mr. Tiwana was employed as a “Count Attendant” from 2000 to 2011 at the OLG Woodbine Slots Operations (“OLG Woodbine”). A Count Attendant, according to Ms. Colalillo’s testimony, works in the back office counting money and secondarily functions as a teller as required.

Ms. Colalillo conceded on cross examination that she had joined OLG Woodbine in August, 2011, the month that Mr. Tiwana left his position. Therefore, the source for her information about Mr. Tiwana’s employment history was Mr. Tiwana’s personnel file and Ms. Colailo’s conversations with a former supervisor of Mr. Tiwana. This supervisor did not give evidence.

Mr. Tiwana appears to have worked without incident from 2000 to 2010. Ms. Colalillo testified that beginning in 2010, OLG Woodbine had “concerns” about Mr. Tiwana’s job performance in two areas in particular. First, there were reported incidents where Mr. Tiwana had allegedly failed to secure or had improperly handled the “tip box”. The tip box is a container placed by the teller’s cage so that gaming patrons can offer gratuities to the tellers. Mr. Tiwana allegedly violated OLG Woodbine’s internal policies concerning the handling of the tip box on four or five occasions in the spring of 2010. OLG Woodbine has what Ms. Colalillo characterized as a “progressive” form of discipline. For the tip box concerns, Mr. Tiwana received “Stage 1” discipline, the lowest form of discipline. This escalated to “Stage 2” discipline by September, 2010. Stage 2 discipline includes a written reprimand. There was no evidence that the disciplinary action proceeded beyond Stage 2. There is no evidence that Mr. Tiwana committed any further violations of OLG policy regarding tip boxes after September, 2010.

Secondly, Ms. Colalillo testified, there were incidents where Mr. Tiwana was alleged to have violated the operating procedures for “FINTRAC”, the federal government financial tracking system which operates to “facilitate the detection, prevention and deterrence of money laundering and financing of terrorist activities”. On several occasions, Mr. Tiwana was alleged to have failed to complete the necessary FINTRAC reports. These alleged infractions led to Mr. Tiwana being re-trained on the requirements of FINTRAC.

In the incident which appears to have led directly to Mr. Tiwana’s leaving OLG Woodbine, Ms. Colalillo referred to a report prepared by Dale Crangle, the Surveillance Supervisor at OLG Woodbine. This report purports to document Mr. Tiwana violating the procedures of FINTRAC by mis-describing a patron who was presenting a voucher for payment. It appears to have been this incident which led to a Stage 4 discipline for Mr. Tiwana. This is the most extreme discipline and appears in this case to have led to Mr. Tiwana leaving his employment. Ms. Colalillo testified that she had not spoken to Mr. Crangle about this report. She assumed that he had been on duty at the time in question. However, she conceded it was possible that someone else was on duty at the relevant time. In that case, her evidence was that she would assume that Mr. Crangle had reviewed the camera tapes that showed the incident. She testified that it is normal procedure for the person who is on duty to prepare this report but she could not say who was on duty on the evening in question. Her testimony was that there was a second incident on the same evening involving the same patron. In the second case, in Ms. Colalillo’s testimony, Mr. Tiwana entered a different description for this patron. Ms. Colalillo provided no collaborating report or other basis for this testimony of a second incident beyond a general reference to Mr. Tiwana’s personnel file and Ms. Colalillo’s discussions with his former supervisor. Mr. Crangle continues to work as the Surveillance Supervisor at OLG Woodbine Slots but was not called as a witness.

Ms. Colalillo testified that there were other issues of concern to OLG Woodbine Slots about Mr. Tiwana’s performance but she did not specify what these were. She referred to the grounds for Mr. Tiwana’s leaving as the alleged violations of FINTRAC reporting and what she characterised as “integrity”. She provided no details about what she meant by her use of the word integrity in this context.

Mr. Frank Cuda also gave evidence for the Registrar. He testified that he is the Manager of Gaming Eligibility for the Alcohol and Gaming Commission (“AGCO”). He testified that in August, 2014, Mr. Tiwana applied to the AGCO for registration as a “POS Runner and TapTix”. Mr. Cuda explained that a POS runner literally runs around the floor offering services such as carrying tickets and advising of wins. A “TapTix” is a form of slot machine which distributes vouchers rather than cash. Mr. Tiwana began working as a runner for a bingo hall in February, 2014. Shortly thereafter, the registration requirements for this type of operation changed and Mr. Tiwana was required to be registered as a gaming assistant under the Act. Operators of bingo halls affected by this change were informed of it by way of seminars delivered in June and July, 2014. His evidence was that some leeway was granted to bingo hall operators during a transition period. If employees applied for registration then they could continue to work as “runner trainees” during the registration process provided they were working with a registered runner who could act as a trainer. The applicants for registration could therefore be characterized as trainees in their position, according to Mr. Cuda.

Mr. Tiwana applied for registration in August, 2014. In his application, he disclosed that he had a conditional discharge for a 2012 breach of a restraining order relating to his former wife. He received eight months’ probation and a conditional discharge for the offence. He has no other criminal record.

Mr. Tiwana also gave evidence. Mr. Tiwana testified that the bingo hall where he works placed him on a leave of absence when they were advised by the AGCO that his application for registration had been denied in early August, 2015. According to Mr. Tiwana, his employer is very supportive and wants him to return to work. This employer sponsored his application for registration. He testified that he works without a registered runner as a trainer and in fact is training other runners.

Concerning his prior employment with OLG Woodbine Slots, Mr. Tiwana attempted to demonstrate that a 2003 action brought by him before the Human Rights Commission was the underlying cause for his loss of employment. However, he was unable to produce any evidence of this 2003 legal action and, in cross examination, Ms. Colalillo denied any knowledge of it or any suggestion that it was a basis for OLG Woodbine’s decisions regarding Mr. Tiwana’s employment.

Mr. Tiwana introduced Minutes of Settlement and Release dated September 12, 2012 in the matter of an arbitration brought on his behalf by the Public Service Alliance of Canada against OLG Woodbine. As part of the settlement, OLG Woodbine, while denying any liability, paid Mr. Tiwana an amount in lieu of reinstatement and undertook to ensure that Mr. Tiwnana’s employment records remained sealed. OLG Woodbine further agreed to answer any questions regarding Mr. Tiwana’s employment with a letter confirming the duration of his employment and the date of his resignation.

Mr. Tiwana also introduced Minutes of Settlement and Release dated May 22, 2014 in a matter before the Human Rights Commission between Mr. Tiwana and OLG Woodbine. In this settlement, OLG Woodbine agreed to pay Mr. Tiwana general damages while denying any liability. OLG Woodbine acknowledged that Mr. Tiwana was working at the bingo hall and undertook not to interfere with his employment there. In return, Mr. Tiwana agreed not to apply for employment at OLG until December 31, 2016.

It should be noted that Mr. Tiwana attempted to introduce some of his sealed employment records in an attempt to show that there had been a 2003 human rights claim. Mr. Tiwana subsequently objected to questions based on these records. The Tribunal refused to accept these sealed records as an exhibit and struck from the hearing record questions based on these documents.

Concerning his conditional discharge, Mr. Tiwana testified that his was an uncontested divorce. His wife was granted a restraining order but he did not testify as to any reason for it beyond her request. His evidence was that he learned that his wife had been taking money from his bank account. When he went to confront her about this, she called the police and he was charged. Since then, he testified, he has re-married, is in a stable relationship and has recently had a child.

Decision

At the outset of the hearing, Mr. Tiwana requested that his identity and the identity of his current employer be kept anonymous in this decision. The Tribunal weighed the competing interests in such a request. It is in the public interest that persons operating in a regulated industry be identified if they are subject to a sanction by their regulating authority. It is likewise in the interests both of the public and of the individual in question that the registrant be identified in an appeal from the regulator’s decision. Therefore, the Tribunal decided to name Mr. Tiwana in this decision. There were some details about Mr. Tiwana’s past employment that he was particularly anxious to keep confidential. Those details were not referred to in the testimony of the witnesses for the Registrar and the Tribunal saw no reason to refer to them in this decision. Mr. Tiwana’s current employer did not give evidence on his behalf and there is no compelling reason to name the employer. So, the employer’s name has not been used in this decision.

Under the Act, gaming assistants must be registered. Section 11 of the Act states:

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

(b) The applicant is carrying on activities that are, or will be, if the applicant is registered, in contravention of this Act, the regulations, the standards and requirements established by the Registrar under section 3.8 or the terms of registration.

The Act also provides that following a hearing, the Tribunal may confirm or set aside the proposed refusal to register and in doing so may substitute its opinion for that of the Registrar. The Act empowers the Tribunal to direct the Registrar to take such action as the Tribunal considers the Registrar ought to take to give effect to the purposes of the Act and may attach terms to the registration if appropriate.

Ontario Regulation 78/12 sets out general regulations to the Act. Of relevance to this matter is the distinction between a “category 1” gaming assistant and a “category 2” gaming assistant. A category 1 gaming assistant is an individual who in the opinion of the Registrar exercises a significant level of decision making authority or has significant supervisory or training responsibilities. A category 2 gaming assistant is one who does not exercise these decision making or training responsibilities. Mr. Tiwana seeks to be registered as a category 2 gaming assistant.

The issue before the Tribunal is whether Mr. Tiwana ought to be registered as a gaming assistant. The challenge for the Tribunal has been that neither party presented a compelling case.

The Registrar was obviously constrained in presenting details of Mr. Tiwana’s employment history, given the various legal actions and terms of settlement. Regardless of the effect of these constraints on the Registrar’s case, the Registrar did not meet her onus of proof with regard to her contention that Mr. Tiwana’s employment history constitutes grounds for denying him registration as a gaming assistant.

Ms. Colalillo testified to concerns about a repeated mishandling of the tip box. This culminated in a “Stage 2” disciplinary action. This was a written reprimand and not, in itself, grounds for dismissal. The fact that Ms. Colalillo gave undisputed evidence that Mr. Tiwana was repeatedly found to be in violation of his employer’s policies regarding the tip box suggests that he is a difficult employee to manage. That in turn may raise concerns about his ability to be registered without conditions, but it should not, in itself, be grounds for refusing registration. This is particularly the case when the Tribunal considers that Mr. Tiwana seeks registration as a category 2 gaming assistant, without significant management or training responsibilities.

A more serious allegation against Mr. Tiwana is that he misrepresented the description of a patron who was presenting a voucher for redemption, in violation of the FINTRAC requirements. The voucher was of a sufficient size to require a written identification of the patron presenting it. These requirements exist for the public protection; they are part of an effort to identify potential money laundering or terrorist funding. The evidence the Registrar put forward to support this serious allegation was the testimony of Ms. Colalillo and the report signed by Mr. Crangle, the Surveillance Supervisor. Ms. Calalillo was not present on the night in question. She relies on the report prepared by Mr. Crangle. Ms. Harari, Counsel for the Registrar, did not qualify Mr. Crangle’s report as a business record. Nor did Ms. Harari call Mr. Crangle as a witness. Ms. Calalillo did not speak to Mr. Crangle about his report and she testified that she was relying on a set of assumptions about who prepared the report, who was on duty on the night in question and who reviewed the camera tape which allegedly shows the incident.

Ms. Harari correctly notes that the Tribunal may accept hearsay evidence. However, that does not mean that the Tribunal must accept such evidence for the truth of its contents regardless of its potential unreliability. A written report vouched for by a witness who was not present at the time of the incident and who did not speak to the author of the report constitutes hearsay that is potentially unreliable. The fact that the report was not qualified as a business record underscores the Tribunal’s concerns about its reliability. The Tribunal accepts the report of Mr. Crangle as a rationale for OLG Woodbine’s decision to take Stage 4 disciplinary action against Mr. Tiwana but does not accept the report as proof of the truth of its contents. Without this report, there is no persuasive evidence that Mr. Tiwana deliberately violated FINTRAC requirements. There is hearsay evidence that Mr. Tiwana was retrained on FINTRAC after some failure or failures on his part to follow the correct process. This is not, in itself, grounds to refuse Mr. Tiwana registration.

Ms. Harari submitted that Mr. Tiwana did not deny the allegations contained in the Mr. Crangle’s report. However, Ms. Harari had the opportunity to cross-examine Mr. Tiwana and chose not to question him about this incident.

Ms. Colalillo also referred in her testimony to other concerns of OLG Woodbine about Mr. Tiwana’s performance including concerns about his integrity. Since she provided no supporting evidence for these allegations, the Tribunal gives them no weight.

Concerning Mr. Tiwana’s past conditional discharge, the Tribunal notes that Mr. Tiwana did disclose this on his application as required. The Tribunal also notes that the incident was as a result of a marital dispute and occurred in 2012. Mr. Tiwana has since entered into a second marriage and there is no evidence of any other criminal offences committed. The Tribunal concludes that this isolated incident is not, in itself, sufficient to deny Mr. Tiwana registration.

Mr. Cuda also testified that Mr. Tiwana was employed from June/July of 2014 until his application for registration in August 2014 without being registered. There is no evidence that Mr. Tiwana knew that he was supposed to apply for registration. It was his employer who received this information. Therefore, the Tribunal does not regard his delay in registration as indicative of any conduct which would disentitle him to registration. By the same token, the fact that Mr. Tiwana has been working without a registered trainer is a matter for his employer and the AGCO rather than a reflection on Mr. Tiwana’s integrity.

As noted above, each of the grounds the Registrar advanced for denying Mr. Tiwana registration is, taken in isolation, insufficient to deny Mr. Tiwana registration. However, considered in totality and taken with Mr. Tiwana’s evidence and conduct during the hearing, the Tribunal does have concerns about Mr. Tiwana’s eligibility for registration without qualification. Mr. Tiwana was self-represented and chose to base his case on the fact that his current employer is supportive of his application. However, Mr. Tiwana did not call his current employer to testify on his behalf. He did not produce any written reference from his current employer. Nor did Mr. Tiwana deny any of the allegations against him.

Mr. Tiwana appeared both during his testimony and during his closing submissions to be a headstrong man who has difficulty listening. As noted above, there is other evidence, particularly his repeated violations of policy concerning the tip box, that support the conclusion that Mr. Tiwana has difficulty with management instructions. Offsetting this evidence is Mr. Tiwana’s approximately ten year employment history prior to 2010 which was without incident. Taking all of these factors into account, the Tribunal considers that it would be appropriate to register Mr. TiIwana subject to certain terms and conditions.

The Tribunal considered a variety of terms and conditions that might operate to give Mr. Tiwana an opportunity to establish a record of performance without incident. Options such as having Mr. Tiwana remain with his current employer or having him remain a category 2 gaming assistant for some reasonable period of time were considered. However, if Mr. Tiwana wishes to change employers or to move to a category 1 classification, he will have to re-apply for registration and his entitlement to registration can be re-examined at that point. More meaningful would be a condition that requires Mr. Tiwana to report to the Registrar if there are any new criminal charges laid against him or any written disciplinary actions taken against him by his current employer. Considering all the circumstances, it seems reasonable to continue this condition for a period of approximately two years, that is, until November 1, 2017.

ORDER

Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs the Registrar to not to carry out the Notice of Proposed Order of June 22, 2015 to refuse Mr. Tiwana registration as a gaming assistant. The Tribunal directs the Registrar to register Mr. Tiwana as a category 2 gaming assistant subject to the following terms and conditions.

Until November 1, 2017, Mr. Tiwana shall report to the Registrar within three business days if:

1. any new criminal charges are laid against him, or
2. any written disciplinary action is taken against him by his employer.

LICENCE APPEAL TRIBUNAL

Laurie Sanford, Vice-Chair

Released: October 13 2015