Appeal from the Order of Immediate Suspension issued by the Registrar, Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996 under the Horse Racing Licence Act, 2015.
Between:
Raymond Ollivierre
Appellant
and
Registrar, Alcohol, Cannabis and Gaming
Regulation and Public Protection Act, 1996
Respondent
DECISION AND ORDER
Adjudicator: Barbara Hicks, Member
Appearances:
For the Appellant: Letitia Webley, Paralegal
For the Respondent: Aviva Harari, Counsel
Heard in Toronto: October 2, 2018
REASONS FOR DECISION AND ORDER
Overview
1The appellant appeals the suspension of his “Trainer, Owner and Exercise Person – Thoroughbred” licenses under the Horse Racing Licence Act, 2015, S.O. 2015, c. 38, Sched. 9 (the “Act”). The Registrar, Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 19961 (“Registrar”) issued an Order of Immediate Suspension, dated July 5, 2018, with respect to the appellant’s licenses following a physical altercation with another licensee (“M.C.”) at the Woodbine Racetrack on April 28, 2018. In that incident, M.C. suffered a head injury that required stitches, and the appellant was charged with assault with a weapon, contrary to s. 267(a) of the Criminal Code. The Tribunal is not aware if the charge has been dealt with yet or what the disposition of the charge was. The appellant was also subject to a Trespass Order issued by the Woodbine Racetrack.
2As a result of the incident and a subsequent investigation by the Registrar, the Registrar concluded that it was in the public interest to immediately suspend the licenses pursuant to s. 21(1) of the Act.
3The appellant filed an appeal with the Tribunal and an in-person hearing was held on October 2, 2018. At the conclusion of the hearing, I confirmed that the Order of Immediate Suspension would remain in effect pending the release of this decision.
ISSUE
4Is the immediate suspension of the licenses necessary in the public interest?
LAW
5In making the Order of Immediate Suspension, the onus is on the Registrar to establish, on the balance of probabilities, that the suspension is necessary in the public interest.
6The licensee has the right to appeal the Order of Immediate Suspension and can request a hearing before the Tribunal. After holding a hearing, pursuant to ss. 20(6) and (7) of the Act, the Tribunal may confirm or set aside the Order, or direct the Registrar to take any action that the Tribunal considers the Registrar ought to take to give effect to the purpose of the Act, and in doing so the Tribunal may substitute its opinion for that of the Registrar.
EVIDEnCE
7The Tribunal heard from four witnesses, two for each party.
The Respondent’s Evidence
8The respondent called its investigator, former OPP Officer Dave Trainor (“Trainor”), to give evidence. Trainor was tasked with the investigation on May 9, 2018, following the incident between the appellant and M.C. The respondent also called Tanya Cadeau, a manager of Horse Racing Eligibility with the respondent.
9Trainor testified that, as part of his investigation, he obtained the Incident Report prepared by Woodbine Security and the Toronto Police Report and he interviewed a number of people.
10[10] Woodbine Security Report: The report was tendered as evidence. It is dated April 28, 2018 and was completed by several security guards and the Security Manager. The report indicates that the incident took place in Barn 18 around 2 pm and there were a number of witnesses present at the time. Robert Jordan (“Jordan”), Security Manager, provided some context for the incident. According to Jordan’s part of the Security Report, M.C. went to the East Gate Security Office immediately after the incident to obtain some first aid. Jordan indicated that M.C., an equine dentist, told him that he had been asked to attend at Barn 18 to provide dental services to a horse in that barn. Upon M.C.’s arrival, the appellant told M.C. that he did not want him in the barn and told him to leave. An argument ensued and the appellant hit M.C. on the right side of his face. M.C. pushed the appellant away. At this point, the appellant picked up a shavings fork and hit M.C. three times in the head. M.C. left the area and security was called.
11At approximately 2:30 pm, the appellant came to the security office. He indicated that he and M.C. do not like each other and that he had previously told M.C. not to go into Barn 18. M.C. swore at the appellant and got into his vehicle and started to drive away but then stopped and got out of the vehicle and proceeded to walk toward the appellant in an aggressive manner. The appellant indicated that he proceeded to defend himself as M.C. threw punches at him. The appellant admitted he then picked up the shavings fork to defend himself further. The appellant said he struck M.C. in the head to keep M.C. away from him.
12Jordan’s report indicates “At this point it was not deemed who was the aggressor, but physical violence will not be tolerated in the Stable Area or on Woodbine Properties.” The appellant was told that he would have to remove his horses by Monday morning or have someone else look after them during the investigation. He could not come on the property while the investigation was in process.
13The names of witnesses were noted in the report, all of whom are licensees under the Act as well.
14Witness J.S. stated that he was with M.C. five minutes before the incident occurred and immediately after the incident occurred. It does not appear that J.S. actually saw the incident himself. J.S. accompanied M.C. to the Security Office and then to the hospital. As J.S. did not actually witness the altercation take place, the Tribunal places little weight on this evidence in making a determination.
15Witness W.A. gave a statement to Jordan the following day. W.A. indicated that he saw “M.C. and Ollivierre arguing and pushing each other.” After several minutes of arguing, the appellant “grabbed a plastic shavings fork and came out like he was going to hit M.C. They argued for a couple more minutes and Ollivierre hit M.C. three times with the fork and broke it.”
16Witness C.M. also gave a statement the next day. C.M said he witnessed the two men fighting. He saw P.B. in between the two men trying to break it up and telling the men to stop fighting. C.M. described the appellant as the aggressor but admitted he was only there for the tail end of the fight. C.M. heard the appellant say to M.C. that he did not want to fight and tried to walk away but M.C. followed him and they scuffled some more.
17On April 29, 2018, M.C. attended the Security Office to provide an official statement. M.C. reported that he required 7 staples to close the wound in his head after the incident. He indicated that he had been asked by R.M., a horse owner, to do some work on a horse in Barn 18. When the appellant refused to let him in the barn, he left. When he was driving away, the appellant ran up to his car window and threatened him and swore at him. M.C. said he got out of his vehicle. The appellant was “in his face” so he pushed him. Then the appellant slapped him with his right hand, knocking his hat off. Then the appellant grabbed the shavings fork and M.C. told him not to do anything crazy with it. After that, the appellant hit him 3 times on the back of the head. The fork broke after the third strike. The appellant then went back into the barn and M.C. left.
18Witness P.B. gave a statement on April 29th. P.B. was in the barn at the time of the incident and heard shouting so went to see what was going on. He saw the appellant and M.C. in a heated argument so he went to try to break it up. He got in between the men. Then the appellant went to the barn and picked up a shavings fork and hit M.C. in the head with it. In P.B.’s handwritten statement, he wrote: “[the appellant] went in his barn and came out with a shaving fork and said to [M.C.], ‘Leave me alone’ and M.C. did not’ so [the appellant] struck him with the fork a few times.”
19On May 2, 2018, witness J.C. provided a written statement to Woodbine Security. J.C. indicated that he and his partner had asked M.C. to work on their horse’s teeth. M.C. started the work the day before and was to finish it on the day of the incident. The horse had been prepared for M.C.’s arrival and was tranquilized in its stall. According to J.C., the appellant approached M.C. even before he was able to get out of his vehicle and told M.C. that he was not allowed to be there. M.C. started to drive away but then he stopped his vehicle and got out. The men exchanged words for several minutes. M.C. pushed the appellant about 5 times. The appellant then said “Stop it or I will hit you” many times. After M.C. kept approaching the appellant, the appellant picked up a shavings fork and struck M.C. in the head with it twice. After that, M.C. left the area.
20R.M. also gave a very brief statement on May 2nd. He indicated that he was positioned between two bins at the time of the altercation and therefore didn’t see much of it. He heard both men yelling quite loudly and the noise spooked his horse.
21In the report prepared by Jordan, he indicated in the “Notes” section that M.C. had a large red mark on the right side of his face where it appeared he may have been slapped or hit. M.C. also had a 6 inch gash on the back of his head. The appellant had no visible marks on him. Jordan wrote: “Both parties at fault for a verbal argument in the Stable Area. Both parties had witnesses stating who started it first. Only M.C. was injured during the argument and ended up in Etobicoke General for 7 staples in his head. Police charged the appellant with assault.”
22Trainor indicated that he interviewed Jordan about his investigation of the incident. During that interview, Jordan indicated that there had been previous incidents involving the appellant. Jordan spoke to the witnesses and commented on two of them in particular. He said that P.B. seemed credible. He also said that he didn’t think J.C. was biased even though he is the appellant’s cousin. After hearing J.C’s testimony myself and having an opportunity to assess his credibility, I too found him to be unbiased and forthright, even though he is related to the appellant.
23Trainor also interviewed the appellant, who he found to be cooperative and respectful. Trainor testified that the appellant also told him he had no previous discipline issues with the Ontario Racing Commission, but Trainor knew this wasn’t true. Trainor had already obtained discipline Rulings from the Ontario Racing Commission and the respondent. The Ontario Racing Commission later amalgamated into the Alcohol and Gaming Commission of Ontario. The previous disciplinary Rulings were filed as evidence in the hearing.
24There were five previous discipline Rulings, none of which involved any violence. In one Ruling the appellant had been fined for swearing at a security official. The only discipline imposed by the previous Rulings was the imposition of relatively small fines.
25Trainor also interviewed M.C. who indicated that he and the appellant had not spoken for a year. M.C. described the appellant as angry and said he would not do any dental work for any horses under the appellant’s care. M.C. said he was surprised to see the appellant at the barn that day since the men who hired him knew about the bad relationship between M.C. and the appellant. M.C. admitted that he pushed the appellant after the appellant knocked his hat off his head. M.C. indicated that the appellant hit him 3 times with the fork.
26Five historical Incident Reports were tendered as evidence in the hearing. To be clear, the Incident Reports are separate from the discipline Rulings mentioned above. The Incident Reports were prepared by the Woodbine Security Office and span a number of years. All of the incidents were closed without police involvement. Two Incident Reports were in fact complaints made by the appellant that other licensees were harassing him. The other three Incident Reports involved allegations that the appellant was verbally abusive, harassing and that he had assaulted another licensee. In the alleged assault incident, the appellant had grabbed the shirt of the other man and threatened him. The men both apologized to each other and the matter was resolved.
27Tanya Cadeau testified on behalf of the respondent. She has worked for the respondent for ten years in Human Resources and Enforcement but has been working for the last ten months as the Manager of Horse Racing Eligibility.
28Ms. Cadeau received notification of the incident involving the appellant and M.C. about a week after it occurred. She then assigned an investigator. Although the appellant had been subject to a No Trespass Notice and police conditions with respect to the Woodbine Racetrack, he was also eligible to work at the Fort Erie Racetrack where there were no such conditions in place. Since the incident at Woodbine was violent and there were concerns about public safety and the safety of other licensees, Ms. Cadeau recommended that the Registrar issue a suspension.
The Appellant’s Evidence
29The appellant called J.C. and the appellant to give oral evidence.
30J.C. has been a horse trainer for 29 years. J.C. and his partner own one horse together, which they keep in one of the stalls operated by the appellant. The appellant controls who goes in and out of his stalls. Although J.C. and the appellant are distant cousins, they have only known each other for about 30 years. J.C. testified that he and his partner had arranged to have the blacksmith shoe their horse that day. They decided to take advantage of the fact that the horse would be tranquilized for the blacksmith’s work anyway and arranged to have the horse’s dental work taken care of at the same time. J.C. did not know about the historical troubles between the appellant and M.C. or he would have avoided putting the two men in the same barn together. M.C. is the only dentist that J.C. uses.
31J.C. testified that he saw the appellant hit M.C. twice with the shavings fork. The witness described a shavings fork as being about 4 feet tall. It is a plastic scoop that is used to clean a stall. The shavings fork is designed to collect wet manure while permitting dry material, such as bedding, to fall through. J.C. stated that M.C. was the aggressor and the appellant was trying to avoid a fight. If M.C. had walked away, nothing would have happened. Initially the appellant and M.C. were about 20 feet apart but M.C. came all the way over to where the appellant was standing. J.C. said he has never seen the appellant behave like that. When the appellant picked up the shavings fork, J.C. assumed he intended to hit M.C. with it and so J.C. tried to stop him. The appellant told J.C. “Don’t worry, I won’t hit him.” The appellant told M.C. to leave but then M.C. pushed him in the face with both hands with open palms. That’s when the appellant hit him – once in the shoulder and once on the head.
32The appellant then gave oral evidence. He has worked with horses since he was 16 years old. He testified that was initially licensed in Barbados but came to Canada and started working at Woodbine in 1988 or 1989. Later he also worked at Fort Erie and a track in Winnipeg. At the time of the incident, he had stabling accommodation for 4 horses at Woodbine. He trains his own horses but also trains for other owners as well. The stalls are assigned to the appellant and he is responsible for anything that happens in them.
33The appellant testified that the trainer is responsible for the horse and anything that involves the horse should involve the trainer. For this reason, the appellant believes that he should have been made aware in advance of the owners’ intention to have dental work done on the horse that day.
34The appellant testified that he is very embarrassed about the incident that gave rise to his licence suspension. He testified that he has a history of negative interactions with M.C., including being called racist and demeaning words by M.C. Most recently, the appellant notified security when he smelled marijuana in a storage area. Security investigated and found that the person who smoked the marijuana was K.S., a friend of M.C’s. After that, M.C. would antagonize the appellant and call him vulgar names for reporting the matter to Security.
35On the day of the incident, M.C. antagonized him again, over and over. M.C. kept pushing the appellant and even knocked his glasses off his face. The appellant walked away from the situation and stood near the water pipe. M.C. approached him there as well. He picked up the shavings fork to defend himself if needed. He felt threatened by M.C. The appellant described the shavings fork that he picked up that day as small and flimsy. It was made of light weight plastic and broke very easily. Even though a bystander tried to break up the fight, M.C. kept coming at him and taunting him. The appellant testified that he pushed the shavings fork towards M.C. and, although he did hit M.C. with it, it was a defensive move rather than an aggressive one.
36The appellant was emotional while giving testimony. He described that working with horses means everything to him. As a single person, his work is his whole life. He is totally embarrassed and ashamed that his licence has been suspended. He regrets what happened very much. He loves his work and would do anything to be able to get back to work. He has trouble earning an income now. If he could do things all over again, he would have done things differently.
37The appellant testified that he attended the police station voluntarily following the incident. He was there for hours and gave a statement. He did not have legal counsel at the time.
ANALYSIS
38I am not satisfied that the suspension is necessary in the public interest. Counsel for the respondent indicated that this was a drastic measure for the Registrar to take, indicating that an immediate suspension is rarely ordered. According to counsel, the Registrar did so because they are responsible for administering the Act in the public interest, which includes ensuring public safety. The violent conduct in this case took place at a race track and the safety of other licensees was at risk. Indeed, one licensee was injured.
39There is no dispute that the appellant was physically violent toward M.C. The appellant has admitted that he hit M.C. with the shavings fork. There were a number of witnesses to the incident and those witnesses reported observing the appellant hit the victim.
40However, I find that the appellant’s conduct on April 28, 2018 was in direct response to the aggressive actions of M.C. It was M.C. who first pushed the appellant, after he exited his vehicle outside the barn. M.C. was the aggressor and the appellant felt threatened so he defended himself.
41I accept the evidence of the appellant and the witnesses C.M., P.B., and J.C., that the appellant did not wish to fight with M.C., attempted to get away from him and told M.C. to leave him alone but M.C. continued to be aggressive toward the appellant. I note that C.M. indicated that when he saw the two men fighting, it appeared to him that the appellant was the aggressor. However, C.M. also admitted that he only saw the end of the fight, which was the point in time when the appellant was defending himself. The appellant’s actions at that time, if not observed within the context of the whole incident, would have appeared to be aggressive when in reality they were defensive actions.
42It was M.C.’s continued aggressive behaviour that caused the appellant to ultimately defend himself with the shavings fork. According to J.C.’s oral testimony, just before M.C. was struck with the shavings fork, M.C. had moved toward the appellant and put his hands on the appellant’s face. Though it may seem excessive to hit M.C. in the head with a shavings fork, the appellant had already tried to withdraw from the situation several times and had told M.C. to leave him alone. P.B. had inserted himself between the men in an effort to de-escalate the conflict. These other less-violent options were not effective. In the context of the entire incident, which lasted some 15 minutes or more according to J.C. and the appellant, I find that the appellant was desperate at that point to bring the conflict to an end. The shavings fork was close at hand. The appellant testified that he did not intend to hurt M.C., but rather just wanted to get M.C. to leave him alone.
43One of the witnesses testified that the appellant’s aggressive behaviour was very out of character for him and I attribute that to the fact that he was being attacked and felt it was necessary to defend himself. One would expect this to be an unusual situation.
44I am not persuaded by the previous disciplinary rulings of the A.G.C.O (or its predecessor the O.R.C.) that the appellant has an ongoing issue with aggressive behaviour that makes him a threat to public safety or puts the public interest at risk. The previous disciplinary rulings spanned ten years and involved technical breaches with fairly minor consequences. The appellant addressed each one in his testimony and I accept his evidence that they were minor and inadvertent rather than intentional. For example, in one case he lost his badge and swore at an official when it was pointed out that his badge was missing. In another, he failed to renew his licence prior to the expiry date. None of them involved violent conduct or signalled any concern adverse to the public interest.
45The historical incident reports on record with Woodbine Security also do not persuade me that there is an ongoing public interest concern. As I mentioned before, two of the five incident reports involved the appellant being harassed by other licensees. The others were quickly resolved without police involvement. Although one incident involved an alleged assault by the appellant, no one was hurt and the other party did not involve the police, stating that he simply wanted an apology from the appellant, which the appellant gave. The incident report indicates that both parties were cautioned about their behaviour but were allowed to remain on the property. I do not view an incident of this nature as giving rise to a public interest concern.
46Having considered all of the evidence before the Tribunal, I conclude that though it is regrettable that M.C. was injured, the appellant was not the aggressor in the incident on April 28, 2018 and he acted in self-defence when he struck M.C. The Registrar has not established therefore, on a balance of probabilities, that it is in the public interest to suspend the appellant’s licence.
47By the time this Decision is released, the appellant will have had his licence suspended for 10 months. He will have suffered an economic loss in terms of lost earnings and legal expenses, a reputational loss and the attendant emotional stress that goes along with any regulatory proceeding. Though these are not factors to be considered by the Tribunal in determining whether the legal test for an immediate suspension has been met, these consequences to the appellant are very impactful and will undoubtedly serve as a deterrent going forward for any conduct that might jeopardize his licensure in the future.
48Notwithstanding my decision in this appeal of the immediate suspension, the Registrar may decide to issue a Notice of Proposed Order to revoke the appellant’s licences if the Registrar is of the view the criteria for doing so are met. It will be open to the Registrar to take into consideration the outcome of the criminal matter and any other facts that may exist at that time.
CONCLUSION
49After considering the evidence and submissions of the parties, I find on a balance of probabilities that it is not in the public interest to suspend the appellant’s licence.
ORDER
50For the reasons set out above, pursuant to ss. 21(4) and 20(6)(a) of the Act, I set aside the Order of Immediate Suspension.
LICENCE APPEAL TRIBUNAL
Barbara Hicks, Member
Released: April 5, 2019