Appeal from the Order of Immediate Suspension and Notice of Proposed Order to Revoke a Licence issued by the Registrar of Alcohol, Gaming and Racing under the Horse Racing Licence Act
Between:
Thomas Kyron
Appellant
-and-
Registrar of Alcohol, Gaming and Racing
Respondent
DECISION AND ORDER
Adjudicator: Asad Ali Moten, Member
Appearances:
For the Appellant: Larry Todd, Counsel
For the Respondent: Rob Sidhu, Counsel
Heard in Toronto: May 29, 2018
REASONS FOR DECISION AND ORDER
OVERVIEW
1The appellant, Thomas Kyron, has been a part of the standardbred horse racing world in Ontario since at least 1990. He has had a successful career as a race horse owner, winning some of the largest purses in the sport. He has been a licenced race horse owner every year since 1990. Mr. Kyron experienced considerable success in other parts of his life as well, growing a chemical supply business over the span of several decades.
2In November 2016, due to Mr. Kyron’s own actions, it all changed. He was arrested as part of an undercover operation and charged with offences under the Criminal Code and Controlled Drugs and Substances Act1 (the CDSA) for selling chemicals used in the manufacture of methamphetamines through his chemical supply business. In October 2017, he pleaded guilty to the offence, receiving a conditional sentence and a fine.
3In January 2018, Mr. Kyron, like he had done every year, applied to renew his race horse owner licence. Unlike previous years, however, Mr. Kyron falsified information on his application about the nature of his conviction. In March 2018, the Registrar of Alcohol, Gaming and Racing (the Registrar), upon learning of Mr. Kyron’s conviction, issued an Order for Immediate Suspension of his licence (the Immediate Suspension), and a Notice of Proposal to Revoke a Licence (the Notice of Proposal).
4Mr. Kyron appealed the Immediate Suspension and the Notice of Proposal to the Licence Appeal Tribunal (the Tribunal). The Registrar argues that Mr. Kyron’s being untruthful on his renewal application, the serious nature of his offences, and the lack of any extended period of compliance are reasonable grounds for the Registrar’s belief that Mr. Kyron, when acting as a licensee, will not act in accordance with the law, or with integrity, honesty, or in the public interest. Mr. Kyron argues that the grounds relied upon by the Registrar are not met, given Mr. Kyron’s history in the sport and his personal history.
5The key issues in this case are (1) whether, given the evidence heard, there are reasonable grounds to believe that, when acting as a licensee, Mr. Kyron would not act in accordance with the law, or with integrity, honesty or in the public interest; if so (2) whether revocation of Mr. Kyron’s licence is the appropriate result; and (3) whether the Immediate Suspension is necessary in the public interest.
6For the reasons below, I find that the Registrar has not established that there are reasonable grounds to believe that Mr. Kyron, when acting as a licensee, will not act in accordance with the law, or with integrity, honesty, or in the public interest. Accordingly, the Notice of Proposal to revoke Mr. Kyron’s licence and Immediate Suspension are hereby set aside.
BACKGROUND
7Much of the evidence and procedural history in this matter is uncontested.
8Mr. Kyron is 81 years old. He started his company, A&K Petrochem, in 1971, and was married in 1976 to his current partner. His family all live together at Mr. Kyron’s home in [ … ]. A&K Petrochem grew into a multi-million dollar company through Mr. Kyron’s efforts, and he became a charitable person making regular donations to the Hospital for Sick Children.
9In his age, Mr. Kyron suffers from spinal stenosis and arthritis. Indeed at several points during the hearing, Mr. Kyron had to stand up and walk around the hearing room in order to prevent his joints from seizing.
10Mr. Kyron has been licensed by the Alcohol and Gaming Commission of Ontario (the AGCO) and its predecessor licensors to own standardbred horses since 1990. Both parties agreed that from 1990 until his renewal application in 2018, Mr. Kyron’s record as a licensee has been pristine. He has never conducted himself in a way that has resulted in sanctions or penalties.
11His clean conduct did not end in Ontario. As a racehorse owner licensee in New Jersey, New York, Pennsylvania, Illinois, Ohio, Kentucky, Florida, Delaware, and four Maritime Provinces, Mr. Kyron’s sterling racing conduct record was undisputed.
12On various occasions between December 2015 and August 2016, Mr. Kyron and his son sold a variety of chemicals to an individual who they thought was a customer, but was in fact an undercover police officer. The undercover officer revealed to Mr. Kyron that the chemicals were going to be used to produce methamphetamines. Chemicals were sold to the officer anyway. Mr. Kyron and his son were arrested on November 9, 2016 and charged with several offences under the CDSA and Criminal Code of Canada.
13On August 25, 2017, Mr. Kyron pleaded guilty to one count pursuant to section 7.1(1) of the CDSA, and to breaching the regulation under the CDSA. The charge was based on Mr. Kyron’s selling of microcrystalline cellulose, toluene, sodium hydroxide, iodine, and red phosphorus, knowing that it would be used to produce or traffic in methamphetamine.
14During this hearing, Mr. Kyron expressed that he had pleaded guilty in part as an exchange for the charges against his son being dropped. Instead of facing similar charges to his father, A.K. instead pleaded guilty to breaching regulations under the CDSA.
15On October 3, 2017, Mr. Kyron was sentenced to an 18-month conditional sentence. For the first six months, Mr. Kyron was on house arrest; not permitted to leave his residence unless travelling to and from work, for medical or physiotherapy appointments, medical emergencies, appointments with counsel, or to church on Sundays. He was also permitted, during these months, to be out on one Saturday per month between noon and 2pm for the necessities of life.
16For the second six months, Mr. Kyron was to not leave his residence between the hours of 10pm and 6am, unless travelling to or from work or a medical emergency. Mr. Kyron was also, for the duration of his conditional sentence, prohibited from the sale of bromine or iodine, and was required to submit any chemical transaction records to the authorities upon request.
17Mr. Kyron was also ordered to pay a fine of $50,000 plus a $15,000 victim surcharge.
18Since his arrest, Mr. Kyron has virtually stopped working at his chemical company. He has instead focused almost all of his time on his horses.
19On January 12, 2018, Mr. Kyron went to renew his licence to own standardbred horses. Racehorse owners are required to renew their licence every year, on or around their birthday. Tanya Cadeau, Manager of Horse Racing Eligibility at the AGCO testified that, as a practical matter, licensees would usually attend a track, meet with a licensing agent, and review and complete the application forms. This is what Mr. Kyron did.
20The Licensing agent would then process the application, collect application/licence fees, and potentially issue the licence. In this process, licensing agents cannot conduct a criminal background check, they can only access racing conduct history. Once a licence is issued, or occasionally before it is issued depending on what was disclosed in the application, the licensing department overseen by Ms. Cadeau will conduct a series of background checks on the licensee. This is what occurred in Mr. Kyron’s case. It was through this background check that the Registrar learned of Mr. Kyron’s offences.
21On March 7, 2018, the Deputy Registrar issued the Notice of Proposal pursuant to section 19 of the Horse Racing Licence Act, 20152 (the Act), and along with it the Immediate Suspension pursuant to section 21(1) of the Act.
ISSUES
22The issues in this matter boil down to the following:
A. Given the evidence heard, are there reasonable grounds to believe that, when acting as a licensee, the appellant will not act in accordance with the law, or with integrity, honesty or in the public interest, having regard to his past conduct?
B. If the answer to the above question is that there are reasonable grounds for the Registrar’s belief, is revocation of the licence the appropriate result?
C. Is the Immediate Suspension of Mr. Kyron’s licence necessary in the public interest?
POSITIONS OF THE PARTIES
23The Registrar argues that it has reasonable grounds to believe that Mr. Kyron would not, when acting as a licensee, act in accordance with the law, or with integrity, honesty, or in the public interest. These reasonable grounds are informed by three factors:
i. Mr. Kyron knowingly gave false answers on the questions on his 2018 licence renewal application;
ii. The nature and seriousness of his past criminal conduct raises serious questions of integrity and honesty, not to mention acting in accordance with the law; and,
iii. Mr. Kyron is not yet halfway through his conditional sentence, and there is no sustained period of compliance outside of behaviour compelled by the court to prove that he could satisfy his obligations as a licensee.
24The only result of this belief, in the Registrar’s opinion, is to revoke Mr. Kyron’s licence.
25The Registrar also argued that the Immediate Suspension should remain in place because Mr. Kyron’s conviction was recent and serious. He is, in fact, still serving his sentence. In the Registrar’s opinion, the public interest and public perception of horse racing require Mr. Kyron to not be acting as a licensee while serving his sentence.
26The Registrar did not express a concern about Mr. Kyron continuing to involve himself in the illicit drug world, or specific concerns about Mr. Kyron’s conduct moving forward.
27Mr. Kyron argues that there are no reasonable grounds to believe that he would not act in accordance with the law, or with honesty, integrity and in the public interest when acting as a licensee, given his past conduct. In the alternative, even if there were grounds to reasonably believe that Mr. Kyron would act improperly, the appropriate remedy in this case, according to Mr. Kyron, would be a suspension of the length already served.
LAW, EVIDENCE, AND ANALYSIS
28Sections 14 and 19 of together permit the Registrar to revoke a licence if:
s.14(a) 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;
29Pursuant to section 21(1) of the Act, the Registrar can immediately suspend a licence where the Registrar considers it to be in the public interest.
30In both instances, the onus is on the Registrar to meet the applicable standards and prove the reasons for their actions.
A. Are there reasonable grounds for the Registrar’s belief?
31The Tribunal’s examination of this issue can be broken down into two related questions:
i. Did Mr. Kyron knowingly give false answers on his 2018 licence renewal application?
ii. Does the totality of Mr. Kyron’s past conduct, including his criminal sentence, give rise to a reasonable belief that, when acting as a licensee, Mr. Kyron would not act in accordance with the law, or with integrity, honesty, or in the public interest?
32The interpretation of section 14 of the Act is informed by the Ontario Court of Appeal in Ontario (Alcohol and Gaming Commission, Registrar) v. 751809 Ontario Inc. (c.o.b. Famous Flesh Gordon’s), 2013 ONCA 157 (Famous Flesh Gordon’s). While Famous Flesh Gordon’s is distinguishable from this case on its facts, it does supply the determinative test and standard to be applied in this case.
33At issue in that case was whether the owner of Famous Flesh Gordon’s, as a member of the Hells Angels, should be stripped of the privilege of holding a liquor licence. Though it was a case under the Liquor Licence Act3, the provision under that Act is fairly close to the one at issue here.
34The Ontario Court of Appeal found that, as a standard of proof, ‘reasonable grounds for belief’ is lower than ‘balance of probabilities’. It requires “something more than mere suspicion” and an “objective basis for the belief which is based on compelling and credible information.” It does not require the Registrar to show that a licensee’s conduct will “make it more likely than not that he will not carry on business as required”.
35In addition, the Court found that when looking at past conduct, the Registrar is entitled to look at past conduct outside of the four corners of the licence, which includes both criminal and non-criminal conduct. Applying this test, the Court did consider the licensee’s history as a full member of a criminal organization, but also the fact the he had no criminal record himself, had always acted lawfully (as a licensee and in his personal life), and had a history of honesty and integrity as a licensee. From this it can be drawn that in considering past conduct, the Registrar must take the good and the bad together.
36This examination of past conduct, in the context of the statutory test in section 14 of the Act, remains directed at the licensee’s future actions “when acting as a licensee.”
i. Did Mr. Kyron knowingly give false answers on his 2018 licence renewal application?
37I find that Mr. Kyron did knowingly give false answers on his 2018 licence renewal application. This does not, however, automatically give rise to a reasonable belief 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.
38On Mr. Kyron’s 2018 application, he checked ‘Yes’ when asked if he had ever been found guilty or convicted of an offence. Because he checked ‘Yes’ he had to disclose the date, nature, and disposition of the conviction. Where he was to describe the conviction he wrote “selling a regulated chemical without a proper license”. Under disposition he wrote “monetary settlement.”
39When testifying about the information disclosed on the application form, Mr. Kyron stated that the conviction as he understood it was under the CDSA for selling a regulated chemical, and that is what he listed on the application. He also stated that the monetary settlement described on the form was the fine he paid of $50,000 plus a $15,000 victim surcharge.
40He also testified that during the course of his criminal conviction he was aware of the offences he was charged with, and that the eventual charge to which he pleaded guilty was read to him in court. He admitted that there was no reference to licensing within s.7.1 of the CDSA, and that at no point was he confused about whether this was the offence to which he pleaded guilty.
41My Kyron admitted that the way he filled out the application would never completely inform someone that he had been convicted of selling ingredients for methamphetamines. Also, by the reading of the application, no one would know that Mr. Kyron had been given a conditional sentence, and not just a monetary penalty.
42In cross-examination Mr. Kyron described the importance of filling out the application form accurately, and stated that he had been filling out the form since 1990 and was familiar with how to complete it without assistance. He also stated that he knew that answers that were not honest could affect renewal.
43Mr. Kyron is a sophisticated man. He is intelligent and careful, with decades of experience and deep expertise in the things he cares about – his company and his horses. These are highly regulated industries and Mr. Kyron has had no trouble in the past navigating the regulations and understanding what is expected of him. He has been a man of consistency in his race horse business, filling out the same form every year, in the same way, in his own handwriting.
44Because of this, I find that the inaccuracies on Mr. Kyron’s application could not have been an honest mistake. Mr. Kyron was not entirely forthcoming in his application. He knew or ought to have known that the information in his application did not tell the full story about his conviction. This, despite knowing that honesty on the application was highly valued by the Registrar, and the consequences for dishonesty could be significant.
45That being said, a finding of dishonesty on an application does not necessarily disentitle an applicant to licensure under the Act. In many of the statutes over which the Tribunal has jurisdiction, knowingly providing false information is a stand-alone, statutory ground for disentitlement to a licence. This is not the case in this Act. This instance of dishonesty must instead be considered as part of the broader context of Mr. Kyron’s past conduct in order to determine whether there are reasonable grounds for the Registrar’s belief.
ii. Does the totality of Mr. Kyron’s past conduct, including his criminal sentence, give rise to a reasonable belief that, when acting as a licensee, Mr. Kyron would not act in accordance with the law, or with integrity, honesty, or in the public interest?
46Without a doubt, aiding in any way the manufacture of methamphetamines is serious.
47Mr. Kyron was granted his licence based on the information in the application. Ms. Cadeau stated that because Mr. Kyron’s application indicated a criminal conviction, she began an investigation. The Registrar began with a Google search, and upon finding the RCMP media release about Mr. Kyron, they conducted a more thorough background check.
48It was through that background check that Ms. Cadeau learned the nature of Mr. Kyron’s convictions. Between December 22, 2015 and August 18, 2016, Mr. Kyron sold microcrystalline cellulose, toluene, sodium hydroxide, iodine, and red phosphorus to an undercover operator. The Agreed Statement of Fact from the criminal proceedings, submitted for this hearing as an exhibit, described in detail the conversations between Mr. Kyron and his customer. Though many of the more damaging conversations happened between the customer and Mr. Kyron’s son, it was Mr. Kyron who made the first deal. He counselled the customer on how to make a legitimate purchase. He seemed at times alive to the true intentions of his customer, even if he did not provide an endorsement.
49Based on the conversations between them, Mr. Kyron either knew or ought to have known that the chemicals were not going to be used for a lawful purpose. At best, Mr. Kyron displayed a wilful ignorance of who his buyer was and the rules that applied to selling certain chemicals, like red phosphorus. At worst, Mr. Kyron was knowingly profiting from illegal transactions.
50It was Ms. Cadeau’s recommendation that led the Registrar to issue the Notice of Proposal and Suspension. Ms. Cadeau stated that this was one of the more serious files she had come across in her experience. The Registrar’s primary concerns were the serious nature of the charges, because drug manufacturing, particularly of methamphetamines, is a major concern and very much contrary to the public interest. Drugs, both as a form of cheating, and as a basis for substance abuse, are a significant concern in the racing industry, and pose a threat to human and equine safety.
51Ms. Cadeau has been in her role for six months, and had no previous experience in the horse racing industry. She also stated that at the time of the Registrar’s actions they did not have the transcript and other materials from the criminal proceedings, and that criminal convictions do not automatically exclude someone from having a licence under this regime. In addition, the Registrar did not put forward any evidence to suggest that Mr. Kyron was continuing to sell these chemicals contrary to any law or for use towards an unlawful purpose.
52It is not open to the Tribunal to re-litigate the criminal proceedings. Mr. Kyron pleaded guilty, and therefore for the purpose of this proceeding is deemed to have committed the acts for which he was convicted. In a vacuum, Mr. Kyron’s clandestine selling of dangerous chemicals for even more dangerous use, over a significant period of time, all while side-stepping the regulations governing his chemical business could certainly raise questions about Mr. Kyron’s integrity and honesty.
53Mr. Kyron’s circumstance, however, also displays a number of mitigating factors that make the question of whether he might not act as a licensee with integrity and honesty much less clear cut. To look at only his criminal conviction would be, in my opinion and in this case, unnecessarily myopic.
54It would certainly be open to the Tribunal to consider the fact that Mr. Kyron took responsibility for the crime and his reasons for taking that responsibility in any assessment of his integrity or honesty. Mr. Kyron stated that part of the reason for his pleading guilty was in order to have the charges against his son dropped. During his sentencing hearing, Mr. Kyron expressed great remorse for his actions and spoke at length about the embarrassment that his actions have caused in him and his family. Even more notably, he expressed concern for his horses at his sentencing. He stated that he did not appreciate the ramifications of what was going on, and that he would not be doing anything like that again. The court, as stated in the transcript from sentencing, believed Mr. Kyron.
55Mr. Kyron has not, in his 80-plus years, had a single regulatory or criminal offence in either his personal capacity, or as a business or racehorse owner, except for the offence at issue here. He testified that aside from a speeding ticket, he has never once been in trouble with the law.
56As a race horse owner, Mr. Kyron has a clean record to date in every jurisdiction where he has been a licensee. There was no evidence of any complaints, violations, or penalties in what is otherwise a complex network of rules that govern all the states and provinces where he has a licence to own race horses. Ms. Cadeau, in cross examination, stated that there was no contention on this fact, and that the Registrar would have the ability to ascertain this information through reciprocity with other jurisdictions.
57Mr. Colin Johnson testified that, as a highly decorated trainer, he has worked with Mr. Kyron’s horses for the past ten years. Mr. Johnson described Mr. Kyron as an owner with whom he has never had any issues, who is passionate about his horses, and, uncommon in the horse racing industry, does what is best for the horse instead of what is most lucrative. Mr. Johnson also testified that although he would consider Mr. Kyron a friend, he was not aware of the exact nature of Mr. Kyron’s charges, just that he had a criminal conviction for selling something.
58Mr. Edward Smith is a high-ranking official in the standardbred horse racing world in Canada. He has held a number of senior positions throughout his 34 years in the industry. Through his roles, Mr. Smith has been privy to, and in some cases responsible for, the racing conduct records of countless owners. He testified that, in his experience, it is uncommon for a race horse owner to have a record as impeccable as that of Mr. Kyron, especially given how prolific and active Mr. Kyron has been in the horse racing industry.
59Further, Mr. Smith testified that in the racing industry, timely payment of bills between owners, trainers and other contractors has always been an issue, and remains so today. Mr. Smith has signed many suspensions due to licensees not meeting financial obligations. With Mr. Kyron, however, bills have always been paid in a timely fashion, and there has never been a complaint against Mr. Kyron for not meeting his financial obligations. Like Mr. Johnson, Mr. Smith also did not know the exact nature of Mr. Kyron’s conviction. He did state that he has taken into account honesty and integrity in the past in determining whether to revoke a licence
60There are also Mr. Kyron’s personal characteristics. He is of advanced age, has been an upstanding member of his community and the horse racing community. He has a caring and supportive family. For Mr. Kyron, the embarrassment he has experienced, and his understanding of the impact of his offences are hedges against future poor decisions.
61In addition to Mr. Kyron’s past conduct before his arrest, his circumstances post-arrest are also relevant to this proceeding. The Registrar argues that there has not been sufficient time to show Mr. Kyron’s positive, unsupervised conduct as an indicator that he would act properly as a licensee in the future.
62Mr. Kyron’s conviction is fairly recent. At the time of the hearing, Mr. Kyron had completed only seven months of his eighteen month conditional sentence. When he submitted his renewal application, he was still in the first third of his sentence, and thus still subject to house arrest conditions. Mr. Kyron’s conditional sentence is strict as far as the conditions placed upon him, reflecting the seriousness the offence. The sentence is also complex in that some conditions fall off gradually over the course of the sentence, while others persist throughout.
63Prior to his sentencing, Mr. Kyron had been on interim release for a little less than one year. During this time he was on a number of conditions as well, including to not attend his chemical business for any reason except for the sale of the building.
64Abiding by these conditions, though court-imposed, would be challenging in the best of situations. There is no evidence that Mr. Kyron ever violated any conditions. He has, on the evidence before the Tribunal, reported regularly and on time to his conditional sentence officer, and attended only the locations and at the times that he is permitted. This displays positive conduct, albeit supervised, over the course of roughly eighteen months, to be weighed along with the criminal conduct for which he was convicted.
65With respect to unsupervised conduct, if past behaviour is indicative of future conduct, then one must weigh all of Mr. Kyron’s past behaviour in an effort to deduce whether he is capable of acting properly as a licensee. In that regard, the Tribunal has to consider that Mr. Kyron has demonstrated nearly three decades of “unsupervised positive conduct” as a licensee. In addition, as stated earlier, this was his first criminal offence, and there is no evidence to suggest that he has acted improperly in other aspects of his life.
Application of the Law to the Facts
66Counsel for both parties directed me to a variety of case law in support of their positions. I am required to consider the unique circumstances and evidence before me, and while no previously decided case will be determinative, the cases do warrant some examination for their persuasiveness. None of the cases were directly on point.
67Some dealt with whether or not a person should be licensed where there have been serious criminal convictions but no indication of dishonesty (Diemer (Re), [2015] ONLATD; Christopher Rockwell v. Registrar of Alcohol and Gaming, 2016 CanLII 50132 (ONLAT); Jeffrey Lyndon MacLaren v. Registrar of Alcohol, Gaming and Racing, 2017 ONLAT HRLA 10923; Ontario (5044-MVDA-Holstead) (Re), [2009] OLATD. No. 10). These cases are all distinguishable on the basis that they had to do with either criminal conduct in the context of being a licensee, or multiple, and in one case outstanding, criminal matters, some of which were very serious.
68Other cases were about incompleteness, inaccuracy, falsehood or dishonesty in the application process, but where criminal convictions played a minor role if at all (Alcohol and Gaming Commission of Ontario Ruling Number SB ADMIN 10/2018; Racco v. Ontario (Registrar, Real Estate and Business Brokers Act, 2002), 2015 ONSC 6233; Ontario (Registrar, Motor Vehicle Dealers Act, 2002) v. Vernon, 2016 ONSC 304; 6227481 Canada Inc. v. Registrar of Alcohol and Gaming, 2016 CanLII 98139 (ONLAT)). These are also all distinguishable. In Racco, the failure to disclose was “material and persistent”. In Vernon, the licensee tried to write a letter containing multiple falsehoods, and false statements on an application are a statutory bar to registration under that regime. In SB ADMIN 10/2018 there is no indication as to the context or circumstances surrounding the failure “to disclose pertinent information.” In 6227481 Canada Inc., it was not a question of an inaccurate application, but of not disclosing a material change in ownership at the right time.
69Even Famous Flesh Gordon, while sharing similarities with this case on its face, is distinguishable. In that instance, the Registrar proposed to have the licensee’s liquor licence revoked not on the basis of any single occurrence or criminal conviction, but rather based on the appellant’s ongoing and high-ranking involvement in a criminal organization. Part of the code of conduct of the organization, as stated in the Court of Appeal decision, is to not cooperate with authorities, and not betray other members who may be involved in the commission of offences. There is no indication in the current instance of any ongoing proximity to criminal activity on the part of Mr. Kyron, or any evidence that he might not cooperate with authorities in the future.
70I am left to apply the principles identified in Famous Flesh Gordon’s and the statutory test to the current instance. To reiterate, I must consider all of Mr. Kyron’s past conduct – the good, the bad, that for which he is licensed, and from his personal and business life – in determining whether there are reasonable grounds to believe that Mr. Kyron, when acting as a licensee, will not act in accordance with the law, or with integrity, honesty, or in the public interest. The belief must be more than a mere suspicion, but it need not rise to a balance of probabilities. And that belief must have an objective basis based on compelling and credible information.
71Specifically, does Mr. Kyron’s knowingly false application, considered in the broader factual matrix of his past conduct and the recency of his criminal conviction and sentence satisfy the test and principles above.
72I find that, considering the evidence as a whole, the Registrar has not satisfied its onus.
73The vast majority of Mr. Kyron’s past conduct has been an exemplary, both as a licensee and otherwise. In between all of that, Mr. Kyron committed a terrible act, and then lied about that terrible act in order to keep his licence as a race horse owner. He was convicted of a single charge that, albeit serious, is not directly related to his activity as a licensee. The Registrar argued that a reasonable nexus between the criminal activity and Mr. Kyron’s activity as licensee would be that both the chemical business and horse racing are highly regulated, and Mr. Kyron displayed an instance of disregard for the laws that govern his chemical business. On the other hand, he has also displayed an uncommon adherence to the laws and ethics of horse racing, and there is no other evidence of non-compliance with laws that apply to him or his chemical business.
74Similarly, while Mr. Kyron did knowingly give misleading answers on his licence renewal application, this is the only instance where he has given misleading information. Further, Mr. Kyron answered honestly the material question of whether he had been convicted of an offence. It was this answer that led the Registrar to investigate the nature of the offence. Had Mr. Kyron chosen to, given his reputation in the sport, he could have not answered this question honestly, and the Registrar might still be in the dark as to his conviction. His honest answer to this question supports the notion that this was not a case of persistent and constant misleading.
75Certainly, Mr. Kyron’s actions were a deviation from a pattern of otherwise positive conduct, but there is no evidence that this deviation is the beginning of a new pattern of less positive conduct. And, while a pattern of conduct is not a necessary prerequisite to meet the statutory test, I find that in this case, the pattern of positive conduct greatly outweighs the negative deviations.
76In addition, during the hearing, Mr. Kyron presented as remorseful for his actions, and he understood where he went wrong. He took responsibility for his offence, and pleaded guilty. Though his testimony about whether his offence was a regulatory under the CDSA or criminal was contradictory, he acknowledged that he had done something wrong. He also acknowledged that the information in his application was misleading, though he could not explain to the Tribunal why he acted in this way.
77This does not excuse his conduct, but I do give weight to the fact that Mr. Kyron has taken ownership of all of his actions. These are factors, the absence of which, have been cited in other cases as a reason for refusing registration (see: discussion of Robert Vernon v. Registrar, Motor Vehicle Dealers Act, 2002 in Diemer (Re), [2015] ONLATD No. 59). By taking these steps, Mr. Kyron has accelerated his personal and professional rehabilitation.
78With respect to the Registrar’s argument that Mr. Kyron has not demonstrated sufficient unsupervised positive conduct, I disagree. Counsel for the Registrar points to Ontario (5044-MVDA-Holstead) (Re), [2009] OLATD. No. 10 in support of the Registrar’s argument. In that case the Tribunal states a general principle that some time must lapse between the expiration of probation and an application for registration, in order to show a period of positive conduct. However, the facts in that case pertained to a lengthier criminal record, including failure to comply with conditions, existing outstanding criminal charges, and less time overall as a licensee to show positive conduct.
79Another, more recent case also put forward by the Registrar, Diemer (Re), [2015] ONLATD No. 59, states that currently being on probation is not sufficient in and of itself to deny registration. What I gather from these cases is that there is no set rule. The amount of time required to demonstrate an ability to conduct oneself with honesty and integrity is a subjective test, and ‘sufficient time’ is not defined (see: Christopher Rockwell v. Registrar of Alcohol and Gaming, 2016 CanLII 50132 (ONLAT)). The Tribunal may consider the period of positive conduct, and the circumstances of that period, along with all of Mr. Kyron’s past conduct, in determining whether the Registrar has established the grounds for revocation.
80Given Mr. Kyron’s past positive conduct, his ability to meticulously abide by difficult interim release and sentencing conditions, and his taking responsibility for his actions, I find that Mr. Kyron does not require more time to demonstrate unsupervised positive conduct. There is sufficient information to reasonably conclude that Mr. Kyron would comply with the requirements of licensure.
81In sum, I find that the statutory test has not been met. As set out above, I have considered Mr. Kyron’s criminal conduct for which he was convicted, his knowingly false statements on his application, the length of time that has passed since the arrest, the fact that he is still completing his conditional sentence, Mr. Kyron’s acceptance of responsibility, and the absence of any evidence of non-compliance with the law despite being a very active licensee. Weighing this evidence in its entirety, I find it unlikely that Mr. Kyron will fail to comply with the law in the future, nor am I satisfied that there are reasonable grounds to believe that Mr. Kyron will otherwise, when acting as a licensee, not act in according with the law, or with integrity, honesty, or in the public interest.
B. Is revocation of Mr. Kyron’s licence the appropriate result?
82As I have found that the Registrar did not meet the statutory test required to issue the Orders, there is no reason to decide whether revocation of Mr. Kyron’s licence is the appropriate result. However, in the event that I am wrong, or if I had found that the Registrar had discharged its onus, it would be open to me to decide the appropriate result.
83Mr. Kyron has been suspended from racing his horses since March 2018. He has had to sell off some of his ownership stake in various horses in order to allow them to compete for their other owners. He has missed an entire racing season.
84The Court of Appeal in Famous Flesh Gordon’s clearly stated that revocation is not the only reasonable conclusion I could reach were I to make a finding under section 14 of the Act. The lengthy suspension that Mr. Kyron has served, combined with his genuine remorse would have the requisite effect of deterring any future misconduct that could jeopardize his horse racing licence.
85Even if I found that the statutory test had been met, I would, under s.20(6)(b) of the Act, direct the Registrar to impose the suspension already served, which is the “action that the Tribunal considers the Registrar ought to take to give effect to the purposes of the Act”.
C. Is the Immediate Suspension of Mr. Kyron’s licence necessary in the public interest?
86Given my finding that the Registrar did not satisfy its onus on the first issue, I find that the Immediate Suspension is not necessary in the public interest.
87The Notice of Immediate Suspension and Notice of Proposal both outlined the same set of facts and similar grounds for the orders, namely that the Registrar had reasonable grounds to believe that Mr. Kyron would not, when acting as a licensee, act in accordance with the law, or with integrity, honesty, or in the public interest. I have already addressed this issue.
88The Notice of Immediate Suspension also listed as a ground the fact that Mr. Kyron is continuing to serve his sentence, and that he attempted to deceive the Registrar in the application process. These issues have also been addressed.
89During the hearing, the Registrar argued that public perception of horse racing could be adversely affected if Mr. Kyron were not immediately suspended. There was no evidence or authority to support this position.
ORDER
90Pursuant to the authority vested in me under section 20(6) of the Act, I order that the Notice of Proposal to revoke Mr. Kyron’s licence be set aside. I further order that the Order of Immediate Suspension be set aside.
LICENCE APPEAL TRIBUNAL
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Asad Ali Moten, Member
Released: October 29, 2018