Date: 2018-09-27
Appeal from the Notice of Proposed Order of the Registrar of Alcohol, Gaming and Racing under the Gaming Control Act, 1992, S.O. 1992, Ch. 24 to Revoke Registration
Between:
Wen Hui He
Appellant
and
Registrar of Alcohol, Gaming and Racing
Respondent
DECISION AND ORDER
Adjudicator: Joanne E. Foot, Member
Appearances:
For the Appellant: Sean O’Connor, Paralegal
For the Respondent: Aviva Harari, Counsel
Heard in Toronto:
August 1 and 2, 2018
REASONS FOR DECISION AND ORDER
Overview
The appellant has been licensed as a Class 2 gaming assistant under the Gaming Control Act, 1992 (the “Act”) since 2004 and employed as a dealer at Great Blue Heron Casino (“GBH”) since that time.
On May 28, 2018, the Registrar of Alcohol, Gaming and Racing (the “Registrar”) issued an Order of Immediate Suspension and a Notice of Proposed Order to Revoke Registration (the “Proposed Order”). The appellant appeals the Proposed Order to revoke his registration under the Act.
On April 25, 2018, the appellant had a day off work. Late in the day, he attended another casino, Casino Rama. As he was leaving Casino Rama after several hours (by then, April 26, 2018), he came upon a quantity of cash, about $2,000, lying on the floor of a gaming area of the casino. The appellant picked up the cash from the floor, pocketed it, and left Casino Rama.
Later that day, April 26, 2018, when he attended GBH for his 10 p.m. shift, he was met at the door by GBH casino security and an officer of the Ontario Provincial Police (“OPP”). The appellant was led into the security office where he was charged with theft under $5,000 and was told not to attend work that day.
The appellant left GBH and drove to Casino Rama where, following arrival, he turned over to Casino Rama security the money he had found in the early hours of that day.
RESULT
- For the reasons set out below, I direct the Registrar to carry out the Proposed Order to revoke the registration of the appellant as a class 2 gaming assistant under the Act.
ISSUE
- The only issue to be determined in this appeal is whether the appellant’s registration as a Class 2 gaming assistant should be revoked in accordance with the Proposed Order. To answer this question, I must determine if the Registrar has reasonable grounds to believe that the appellant will not act in accordance with law, or with integrity, honesty, or in the public interest having regard to his past conduct.
PRELIMINARY ISSUES
The appellant’s representative brought a motion to permit two of the appellant’s witnesses to attend the hearing by teleconference. The appellant’s representative confirmed that these witnesses would be giving testimony as to the character of the appellant only. Given the nature of the anticipated testimony and the respondent’s opportunity to cross-examine these witnesses on the telephone, I found that this would not cause prejudice to the respondent and granted the motion.
A day or two before the hearing, the appellant’s representative requested that the respondent provide the videotape footage covering the arrest of the appellant at GBH. Respondent’s counsel did not receive this request and, moreover, did not have the videotape footage requested, this being in the possession of the OPP. The appellant’s representative then requested an adjournment of the hearing to enable him to obtain this material. After considering the limited relevance of the videotape footage, the fact that the appellant’s representative did not request this material at the case conference and the presence that day of at least eight witnesses, and balancing the needs of all parties, I denied the request for an adjournment.
ANALYSIS
Legal Test
- The Act provides that the Registrar may propose to suspend or to revoke a registration for any reason that would disentitle the registrant to registration or renewal of registration under section 11 if the registrant were an applicant.
Section 11(a) of the Act provides that the Registrar can refuse to register or renew an applicant as a gaming assistant if:
“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 …”
The Registrar has the burden to prove that the appellant is not entitled to registration.
The Ontario Court of Appeal in Alcohol and Gaming Commission of Ontario v. 751809 Ontario Inc. 2013 ONCA 157 (Famous Flesh Gordon’s) at para. 18 confirmed that the standard of proof of “reasonable grounds for belief” is a lower standard than that of “balance of probabilities”.
The Court of Appeal in the Famous Flesh Gordon’s case also makes it clear that there must be reasonable grounds for belief that the person will, in future, carry on activity in a way that is not in accordance with the law, with honesty and with integrity. The Court of Appeal emphasized that any and all past or present conduct can and should be considered. Furthermore, there should be a nexus between the appellant’s overall conduct and the business.
Gaming Regulatory Regime
Mr. Gary White, a Senior Manager of Specialized Eligibility in the Licensing and Registration Branch of the Alcohol and Gaming Commission of Ontario described the regulatory regime for the gaming industry in Ontario. He explained that the gaming industry in Ontario is highly regulated by design. This is to maintain public confidence in the industry, to maintain the integrity of gaming operations and to ensure that the public interest in these operations is upheld.
Mr. White further explained that provision of gaming services in Ontario requires that gaming assistants meet very high standards of honesty and integrity. Under the Act, individuals are expected to conduct themselves with honesty and integrity, in accordance with the law and in the public interest. Mr. White described this as an ongoing requirement throughout the tenure of the registration of the individual. These factors are initially assessed when an individual applies for registration and at regular intervals thereafter upon renewal. However, the obligation is continuous. Likewise, Mr. White stated that the obligation applies to all aspects of the life of a registrant, not only their conduct during the hours that a registrant attends work.
In some cases, as here, the individual will be assessed between renewals on the basis of circumstances that become known to the Registrar. In this case, the Registrar received what is called a “Derogatory Report” from the OPP which alerted the Registrar to the incident at Casino Rama and that the appellant had been charged under the Criminal Code.
Incident at Casino Rama
The Registrar called as a witness Ms. Rosalie Garcia, an employee of Casino Rama working in the surveillance department, who was on duty on the evening of April 25, 2018 and the early hours of April 26. 2018. She reviewed three video clips taken from the security cameras at Casino Rama.
Much of the evidence called by the parties, including the evidence contained in the video clips, was not in dispute. The following facts were not contested:
a) The appellant had a day off on April 25, 2018. He was at home with his 13-year-old daughter. His wife, also employed at GBH, was at work that evening. Mr. He decided to go to Casino Rama, and reserved a spot on the bus leaving from Pacific Mall. The appellant drove to Pacific Mall and caught the 8 p.m. bus, arriving at Casino Rama at about 9:50 p.m.
b) At about 3:38 a.m., after having been at the casino for almost six hours, the appellant cashed out his ticket at a cash machine and began making his way towards the bus departure lobby of Casino Rama.
c) At about 3:39 a.m., another patron, Mr. S.O.P., arose from a gaming machine, and a significant quantity of cash fell from his pocket or his lap.
d) At about 3:39 a.m., the appellant walked through a gaming area on his way to the bus departure lobby and came upon a quantity of cash lying on the floor. The appellant picked up the cash, put it in his pocket and hastily walked towards the bus departure lobby.
e) At about 3:40 a.m., the appellant entered the bus departure lobby and approached the ticket desk, where he obtained a ticket for the 4 a.m. bus back to Pacific Mall. He then immediately exited the casino and boarded the bus.
f) Security at Casino Rama received a report at about 4:00 a.m. that Mr. S.O.P. had lost about $1,900 in the casino. An investigation was commenced, including reviewing the surveillance video tapes from the area where Mr. S.O.P last had the cash. The appellant had used his loyalty card when he cashed out his ticket prior to leaving the casino. This, together with video tapes showing the appellant’s route through the casino, allowed Casino Rama staff to identify him.
g) A supervisor at Casino Rama reviewed the appellant’s loyalty card information on file and learned that he was employed at GBH. He then alerted personnel at GBH of the incident.
h) The bus arrived at the Pacific Mall at about 6 a.m. The appellant drove home and got his daughter ready for school for the day. That day, the appellant slept for several hours, waking up in time for his daughter’s return home from school around 4 p.m.
i) Later that day, April 26, 2018, the appellant’s shift at GBH began at 10 p.m. He drove to GBH with his wife who was also working the night shift that day, arriving at about 9:50 p.m. They were met at the door by GBH casino security and an OPP officer. The appellant was led into the security office where he was charged under the Criminal Code with theft under $5,000 and was told not to attend work that day.
j) The appellant left GBH and drove to Casino Rama. Following arrival at Casino Rama, he turned over to Casino Rama security $2,100, being the money he had found on the floor in the early morning hours of that day.
k) The charges laid against the appellant under the Criminal Code relating to this incident were subsequently withdrawn.
The appellant called several character witnesses and submitted letters of support from a number of individuals. A picture emerged of a man who is trusted, friendly and helpful, regarded as a good worker and reliable, and contributes to the community.
Mr. White acknowledged that the background checks they had performed in respect of the appellant revealed no other criminal charges and no criminal convictions. Similarly, no issues had arisen with the appellant’s registration under the Act in 14 years. No evidence was introduced that there had ever been any issue arising during the appellant’s 14 years of employment at GBH.
The Casino Rama incident on April 26, 2018 is the sole basis for the Registrar’s position that the appellant is ineligible for registration based on past conduct showing reasonable grounds to believe that the appellant will not carry out his employment in accordance with law, with integrity, honesty or in the public interest.
Analysis
The appellant maintained two positions consistently throughout the hearing: firstly, that it was always his intention to return the money, and secondly, that the only reason he did not turn it in immediately was because he did not have enough time. He feared missing the 4 a.m. bus he needed to take to get home in time to help his daughter get ready to depart for school at 7:40 a.m.
I have considered the appellant’s position that his actions were primarily motivated by the necessity of catching the 4 a.m. bus and his limited time to do so. If limited time had been his prime motivation, the appellant could have noted the quantity of cash on the floor of the gaming area and reported it to a Casino Rama staff, of which there are many throughout the casino.
Alternatively, after the appellant picked up the money from the floor, he could have turned it over to a security officer or other Casino Rama staff. He testified that he had spoken to the security officer at the security post in the bus departure lounge between 1 a.m. and 2 a.m., inquiring when the person staffing the bus ticket desk in that area would return. I can assume that about 90 minutes later he remembered the location of this security officer and, as it was on directly on his way to the bus, it would have taken very little time turn over the cash.
I note that the appellant procured his ticket for the 4 a.m. bus at about 3:40 a.m. At this point, he was assured of a seat on this bus and had at least 15 minutes before the bus departed to turn the cash in. This should have been an adequate amount of time to have made some sort of gesture towards returning the money. The appellant did none of these things, asserting that he did not have time. Finally, he could have returned to Casino Rama after getting his daughter ready for school or, at the very least, have contacted someone at Casino Rama by telephone prior to his shift beginning at 10 p.m. that evening.
I do not accept that a lack of time adequately explains the appellant’s choices not to leave the cash on the floor and report it or immediately turn the cash over to the proper authorities. I am further of the view that his failure to take these actions calls into doubt whether the appellant had a genuine intention, at that time, to return the money.
Mr. Paul Ferguson, a contract investigator for the Alcohol and Gaming Commission of Ontario, gave evidence about the interview he conducted with the appellant on May 24, 2018. During the interview, Mr. Ferguson asked the appellant why he did not immediately return the money. Mr. Ferguson indicated that the appellant seemed “confused in his own mind why he didn’t return this money” at the time. The appellant also offered that, in retrospect, he was not feeling well, “wasn’t himself” and was under “big pressure”. Mr. Ferguson confirmed that at no time during the interview did the appellant state that it was always his intention to return the money but he was in a hurry to catch the bus.
Based on the by-passed opportunities to report the lost cash or return the cash before leaving Casino Rama, and his inconsistent statements made with Mr. Ferguson about why he picked up the money, it is difficult to accept that the appellant’s original intention was to return the money to its rightful owner. In this regard, the subsequent return of the cash to Casino Rama after his arrest at GBH is not persuasive; this can be seen as damage control more easily than as an indication of original intention.
The appellant’s representative focussed a great deal on the appellant’s intention in this matter. This line of reasoning may well have assisted the appellant in a criminal proceeding, intent being a necessary element of most offences. However, the test applicable to eligibility of registrants in the gaming industry in Ontario relates to conduct. Said another way, it is the behaviour of registrants that is required to meet the standard of acting in accordance with law, with honesty, integrity and in the public interest. It is an appellant’s past behaviour that is examined to predict future behaviour. Certainly, the intention of a registrant in relation to his or her conduct could be a relevant aspect of past conduct in determining whether that past conduct provides reasonable grounds to believe that the appellant will not act in accordance with law, or with honesty, integrity, or in the public interest. In this case, I am not convinced that it was the intention of the appellant to immediately return the money.
I must decide whether this single incident, when considered against an otherwise good record of registration and employment of 14 years, is sufficient to constitute reasonable grounds to believe that the appellant will not, in the future, behave in accordance with law or with integrity, honesty and in the public interest. The revocation of the appellant’s registration under the Act is a severe consequence – it represents the loss of his livelihood and will undoubtedly have an adverse effect on his life and that of his family. His many character witnesses spoke well of him. The strong support he received suggests that he is a person who deserves a second chance.
The testimony heard from the appellant during the hearing was instructive. The appellant testified in direct examination that his wife was at work at GBH on the evening he went to Casino Rama and that she did not know that he was going to attend Casino Rama. He went on to say that he asked his 13-year-old daughter not to volunteer information to her mother that he had gone to Casino Rama, but that she should tell her mother the truth if asked directly about his whereabouts. Unfortunately, this unforced admission indicates that the appellant is less than candid and forthright in other areas of his life. While I make no comment or finding based upon his family dynamics, I do find that this admission goes to the appellant’s general credibility. It appears that the appellant is willing to be less than forthright as a strategy to avoid the consequences of his actions.
The appellant acknowledged that in his training at GBH he learned that he is required to return all found items. However, he testified that had never received any training about appropriate behaviour in other casinos, that is, casinos other than GBH where he was employed. In contrast, one of the appellant’s colleagues at GBH called as a character witness testified – without hesitation and with some degree of alarm - that he would not have touched the money in the appellant’s circumstances and would have brought it to the attention of Casino Rama staff immediately. Another of the appellant’s character witnesses, another GBH employee, testified that she would not have walked out of the casino with the money. The appellant’s explanation of not having had training about these circumstances is, at best, a deflection of responsibility on his part.
It would have been helpful to hear evidence from the appellant that explained his state of mind, his life circumstances or any other thing that could explain, if not mitigate, what is, at best, a very serious error in judgment on his part. The appellant offered nothing of this kind. Furthermore, the appellant did not demonstrate repentance or remorse or accept responsibility for the consequences of his behaviour. Nor did he offer any insight into his actions or express that he had learned anything about himself through this experience. Finally, the appellant offered nothing to demonstrate that he understood that he had failed to live up to the standards required for an individual working in a regulated industry, how his behaviour may have affected the perception of the industry and how his behaviour affected the public interest of maintaining a fair gaming industry in the province.
Counsel for the respondent submitted that it is significant that the appellant’s conduct in question occurred in the very industry in which he is a registrant. I agree that industry-specific conduct is to be given more weight; being a participant in the industry the appellant has an understanding of the circumstances in which he found himself and the expectations for his behaviour in such circumstances.
The gaming industry has historically been linked with the criminal element and questionable practices. As described above, individual registrants are held to high standards to counter these historical associations and to ensure that the public interest is served by maintaining a fair gaming industry.
Given the appellant’s conduct at Casino Rama, the evidence that his colleagues would not have left the casino with the money, his testimony demonstrating a willingness to be less than forthright in other areas of his life, my finding that his stated intention to return the money lacked credibility, and the absence of any remorse, acceptance of responsibility or insight, I find that the respondent has met its burden to show that there are reasonable grounds to believe that if the appellant is again confronted with a complex or unusual situation, he will not “do the right thing”, that is, act in accordance with law, with integrity, honesty and in the public interest.
ORDER
- For the reasons set out above, the Tribunal confirms the Proposed Order to revoke the registration of the appellant as a class 2 gaming assistant under the Act.
LICENCE APPEAL TRIBUNAL
____________________________
Joanne E. Foot, Member
Released: September 27, 2018