Licence Appeal Tribunal
Appeal from a Notice of Proposal of the Registrar, Horse Racing Licence Act, 2015, S.O. 2015, c.38, Sch. 9 – to Revoke a Licence
Between:
Jeffrey L. MacLaren Appellant
-and-
Registrar of Alcohol, Gaming and Racing Respondent
DECISION AND ORDER
ADJUDICATOR: Stephen Scharbach, Member
APPEARANCES:
For the Appellant: Jeffrey L. MacLaren, Self-Represented For the Respondent: Aviva Harari, Counsel
Heard at Toronto, Ontario: July 25 and 26, 2019
OVERVIEW
1The appellant, Jeffrey MacLaren, held a licence as a “Jockey and Exercise Person – Quarter Horse” under the Horse Racing Licence Act, 2015, S.O., 2015, C. 38, Sch. E.9 (“Act”). That licence expired on March 1, 2018.
2On August 2, 2017, the Registrar of Alcohol, Gaming and Racing issued an Order of Immediate Suspension and a Notice of Proposed Order to revoke the appellant’s licence.
3The proposal to revoke stated that having regard to the appellant’s past conduct, there are 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.
4The past conduct involved alleged threats made to another jockey just before a race, and threats and damage done to the property of another licensee who reported the appellant’s original threats to racing officials, which resulted in the appellant’s suspension from racing.
5The appellant appealed the Registrar’s proposed order to revoke and immediate suspension order to this Tribunal and a hearing was held in September 2017.
6In a decision released in November 2017, the Tribunal set aside the immediate suspension order and directed the Registrar not to carry out its proposal.
7The Registrar appealed the Tribunal’s decision to the Divisional Court on a question of law and, on November 14, 2019, the Court allowed the appeal and ordered the Tribunal to conduct a re-hearing.
8A re-hearing was held on July 25 and 26, 2019 and this is the decision resulting from that hearing.
ISSUES
9Are there reasonable grounds to believe that, when acting as a licensee, the appellant will not act in accordance with the law or with integrity and honesty, or in the public interest, having regard to the appellant’s past conduct?
10If so, should the Registrar be directed to carry out his proposal to revoke or be directed to take such other action to give effect to the purposes of the Act?
DECISION
11Having regard to the past conduct of the appellant, there are reasonable grounds to believe that, when acting as a licensee, he will not act in accordance with the law or with integrity and honesty, or in the public interest.
12The imposition of conditions is not appropriate in this case. The Tribunal directs the Registrar to carry out his proposal to revoke the appellant’s licence.
LEGAL FRAMEWORK
13The Registrar’s order to immediately suspend and the proposal to revoke the appellant’s licence were made under the authority of the Act.
14The purpose of the Act and its regulations are to regulate horse racing and the operation of race tracks and off-site betting facilities in Ontario.
15Regulation of horse racing is accomplished in part by restricting participation in the industry to those who are licensed. Licenses issued by the Registrar are required by anyone acting as a trainer, driver, jockey, apprentice jockey, groom, jockey’s agent, jockey’s valet, exercise rider, tradesperson and veterinarian.
16The Registrar may issue a written notice of proposal to revoke a licence issued under the Act if:
there are reasonable grounds for believe that, when acting as a licensee, the [licensee] 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 [licensee] (s. 19, 20, 14(a)).
17The Registrar may also order the immediate suspension of a licence without notice where “…the Registrar considers it to be in the public interest” (s. 21(1)).
18If the Registrar proposes to issue an order to revoke a licence, the Act requires the Registrar to give notice of the proposed order to the licensee, which shall include reasons and notification of the licensee’s right to request a hearing by this Tribunal (s. 20(1), (2)).
19If a hearing is not requested within 15 days, the Registrar may make the proposed order to revoke the licence (s. 20(4)).
20If, as in this case, a hearing is requested, the Tribunal shall hold a hearing (s. 20(5)). At a hearing, the Registrar has the onus to establish the facts supporting the proposed order on a balance of probabilities.
21After holding a hearing, the Tribunal may, by order, confirm or set aside the proposed order, or direct the Registrar to take action that the Tribunal considers the Registrar ought to take to give effect to the purposes of the Act. The Tribunal may substitute its opinion for that of the Registrar, and may attach conditions to the order or to the licence as it considers appropriate (s. 20(6), 20(7), 20(8)).
THE REGISTRAR’S PROPOSAL TO REVOKE AND IMMEDIATE SUSPENSION ORDER
22On August 2, 2017, the Registrar issued an Order of Immediate Suspension and a Notice of Proposed Order to Revoke Licence with respect to the appellant’s licence.
23Both the Order and the Proposed Order were based on the same allegations involving the appellant’s recent past conduct.
24In summary, the Registrar alleged that just before a race conducted at Ajax Downs on July 17, 2017, the appellant threatened another jockey by saying that he intended to “take out” that jockey and his horse during the race.
25Those alleged threats were reported to racing officials and those officials informed the appellant on July 20, 2017 that he was immediately suspended pending an investigation. The appellant reacted by uttering threats against the licensee he considered to be responsible for the suspension. He drove to that licensee’s residence, broke the windows of his truck and a horse trailer, and destroyed a mailbox.
26The Registrar concluded that the appellant’s past conduct afforded reasonable grounds to believe that he will not act in accordance with the law, or with integrity, honesty, or in the public interest. The Registrar therefore ordered an immediate suspension of the appellant’s licence and issued a proposed order to permanently revoke the appellant’s licence.
APPELLANT APPEALS TO LAT
27The appellant appealed the Registrar’s immediate suspension order and proposed revocation order to this Tribunal and a hearing was held in September 2017.
28The Tribunal’s decision was released on November 9, 2017. The Tribunal concluded that having regard to the appellant’s past conduct there were not reasonable grounds to warrant revocation.
29The Tribunal set aside the immediate suspension order and directed the Registrar not to carry out his proposed order to revoke.
REGISTRAR APPEALS TO DIVISIONAL COURT
30The Registrar appealed the Tribunal’s decision to the Divisional Court and the Court released its decision on November 14, 2018.
31The Court allowed the appeal, set aside the Tribunal’s decision, and sent the matter back to this Tribunal “…for a re-hearing in accordance with these reasons by a differently constituted panel.”
32As a result, this present hearing - actually a re-hearing - was convened.
33The Court concluded that the Tribunal made an error by focusing too narrowly on whether the appellant’s past conduct formed reasonable grounds for belief that the appellant would not act as required when acting as a licensee, in other words as a jockey.
34In the Court’s view, the Tribunal failed to adequately consider the appellant’s past conduct in response to the actions of the regulator and how that conduct reflected on his ability or willingness to be governed in a regulated industry. The Court stated:
I find that the Tribunal did err in its interpretation of the phrase, “when acting as a licensee”. Specifically, while the Tribunal recognized that racing officials “help to preserve the integrity and public confidence in racing,” it did not conduct an analysis as to how the Respondent’s past conduct impacted on his future willingness to accede to regulatory enforcement. Acting as a licensee …. encompasses more than just one’s activities while engaged in a race; it also involves having a relationship with the regulatory agency charged with enforcing the Act that does not undermine that body’s ability to fulfill its important public mandate.
PRELIMINARY ISSUES
(a) Appellant’s Licence Expired on March 1, 2018
35At the outset of the hearing, Registrar’s counsel informed me that the appellant did not renew his licence and it expired on March 1, 2018.
36According to counsel, because the appellant no longer holds a valid licence, the immediate suspension order has no further application and the proposed order to revoke is moot because there is no longer a licence to revoke.
37Counsel suggested that in these circumstances, there is no issue for the Tribunal to decide and the appellant’s appeal should be dismissed.
38The appellant argued that the appeal should proceed. According to the appellant, he always renewed his licence in the past by delivering a hard copy of the application to racing officials at the race office within the race track. The race office is in the “backstretch” - a part of the race track to which public access is restricted.
39According to the appellant, after the incident which resulted in the proposed order, he was not allowed access to the backstretch at Woodbine. He tried to deliver his renewal application at Woodbine once in the fall of 2017 and twice in the spring of 2018. However, each time he was denied access.
40The Registrar pointed out that application renewals can be done via fax, by mail or online and all of those methods were available to the appellant.
41I concluded that the hearing should proceed despite the fact that the appellant’s licence had expired.
42Firstly, Registrar’s counsel referred to court and tribunal cases which touch on the issue of whether the Tribunal has jurisdiction to consider an appeal from a notice of proposal to revoke a licence after expiry of the licence.
43Only one of those cases appears to be directly on point1. In that case the Registrar under the Real Estate and Business Brokers Act applied for judicial review of a Tribunal decision dismissing its motion that the Tribunal had no jurisdiction to hear an appeal from a notice of proposal to revoke registration. The appellant was served with a notice of proposal and requested a hearing while she held a valid registration but her registration expired before the Tribunal hearing due to her failure to maintain insurance. The Divisional Court stated:
However, in our view, the jurisdiction of the Tribunal to proceed with a hearing would not be ousted by the circumstance that the registration of Ms. Reid as a salesperson under REBBA expired after service of the notice of proposal by the Registrar and her notice requiring a hearing before the Tribunal but before the hearing itself. If the Registrar wishes to proceed against her with the serious allegations set out in the notice, then Ms. Reid is entitled to the hearing she has requested to respond to them.
44Although this decision was decided under a different statute, the Court’s reasoning in that case appears to directly apply to this case.
45Secondly, the Act provides that if the Registrar issues a proposal to revoke a licence the licence holder can request a hearing and, if a hearing is requested, the Tribunal, “shall schedule and hold a hearing”.
46In this case the appellant held a valid licence when he requested a hearing.
47The Registrar appealed the Tribunal’s first decision to Divisional Court and continued with the appeal (heard on November 9, 2018) even though the appellant’s licence expired on March 1, 2018.
48The Registrar did not take the position then, as it does now, that further proceedings are moot because the appellant’s licence had expired.
49Despite the fact that the appellant’s licence had expired, the Divisional Court ordered this Tribunal to conduct a re-hearing, an approach entirely consistent with that Court’s earlier decision quoted above.
50Finally, I do not agree that a hearing in this case would be moot. The appellant asked for a hearing into the Registrar’s allegations. A decision on the Registrar’s proposal one way or the other will undoubtedly have implications for the appellant should he seek to reinstate his licence in the future.
51For all of the above reasons, I concluded that the Tribunal has jurisdiction to hold the re-hearing ordered by the Divisional Court.
(b) Admission of Witness Evidence via Transcript
52Counsel for the Registrar indicated that she did not intend to call witnesses to prove most of the underlying facts in support of the Registrar’s proposal. Instead of calling witnesses, she intended to introduce into evidence transcripts from the first Tribunal hearing that contained the sworn testimony and cross-examination of the Registrar’s witnesses
53The appellant objected on the basis that the transcripts were not accurate in all areas and did not reflect the testimony that was provided. I note that the transcripts were not prepared by a court reporter who had attended the hearing, they were prepared from a recording of the proceeding made by the Tribunal member using a portable device.
54Section 15.1 of the Statutory Power and Procedure Act (“SPPA”) provides that:
The tribunal may treat previously admitted evidence as if it had been admitted in a proceeding before the tribunal, if the parties to the proceeding consent.
55In this case, the appellant did not consent.
56Although s. 15 of the SPPA allows the Tribunal to admit as evidence at a hearing any relevant document, whether or not given or proven under oath or affirmation or admissible as evidence in a court, I was not prepared to admit the transcripts under that general authority when the Act specifically requires the parties’ consent in the case of previously admitted evidence.
57In addition, that Registrar’s proposed approach would have prevented the appellant from cross-examining the witnesses and there was a question as to whether the transcripts were accurate in all respects.
58Since I was not prepared to admit the transcripts as evidence at the present hearing in place of the sworn testimony of witnesses, the Registrar decided to proceed without the transcripts and instead proceed on the testimony of a single witness, Ms. Cadeau, Senior - Manager of Registration and Compliance.
59The testimony in the transcripts was mainly relevant to the first main allegation - that the appellant made threats against another jockey and horse just before the race at Ajax Downs on July 17, 2017. Essentially the Registrar decided to call no evidence in respect of that allegation.
60Ms. Cadeau’s evidence, supported by some documentation, was directed to the second main allegation – the appellant’s reaction to the regulatory response to the alleged threats. Although Ms. Cadeau’s evidence on that issue was second hand, it was undisputed.
61Thus, the focus of the hearing became the appellant’s conduct in responding to the decision and actions of the racing officials and whether, having regard to that past conduct, there are reasonable grounds for the belief 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.
THE CONDUCT
62The Registrar’s position is that the Tribunal should confirm the proposed order to revoke the appellant’s licence and bases that position on the appellant’s conduct on July 20, 2017 as well as an earlier incident that occurred on July 12, 2011.
(a) The July 20, 2017 Incident
63On July 20, 2017 the appellant raced at Ajax Downs. Just before the race while in the jockey room, the appellant spoke with the other jockeys, including Mr. Tony Phillips who was riding a horse owned by Mr. Bob Broadstock. Mr. Broadstock is also licensed under the Act. He owns racehorses, and the appellant had ridden Mr. Broadstock’s horses in the past.
64According to the appellant, by July 2017 he and Mr. Broadstock were no longer on good terms. They had a falling out, at least partly because the appellant felt that Mr. Broadstock owed him money and refused to pay. The appellant testified at the hearing that he openly criticized and expressed his dislike of Mr. Broadstock. That criticism got back to Mr. Broadstock, and the appellant says he was warned by Mr. Phillips to stop or Mr. Broadstock will retaliate.
65On July 17, 2017, the appellant allegedly made comments in the jockey room that were later reported to Mr. Broadstock who apparently took those comments to be a threat to cause harm to Mr. Broadstock’s horse and jockey during the race.
66As mentioned, no witnesses to what was said in the jockey room were called by the Registrar, and I make no findings in that regard. The main focus of the present hearing was the appellant’s response to the actions taken by the racing officials after they learned of the alleged comments.
67Ms. Cadeau testified that racing officials at Ajax Downs learned of the comments allegedly made by the appellant and on July 20, 2017, the appellant was called into the Ajax Downs race office just before a race. Racing officials told the appellant that he was suspended indefinitely pending the outcome of an AGCO investigation into what was said just before the July 17 race.
68According to racing officials, the appellant became upset and agitated. The appellant confirmed at the hearing that in his view, Mr. Broadstock had made false allegations against him to racing officials as part of their personal feud. According to the racing officials, the appellant returned to the jockey room and was overheard cursing, swearing and expressing his intention to go to Mr. Broadstock’s house and physically harm him. He was escorted from the Ajax Downs race track by security.
69The appellant confirmed in his testimony that later that day, he drove to Mr. Broadstock’s home. In a rage, he called out to Mr. Broadstock and challenged him to fight. Mr. Broadstock was apparently not home but his wife and children were. When Mr. Broadstock did not emerge from the house the appellant broke windows on Mr. Broadstock’s truck and horse trailer and destroyed a mailbox.
70The police were called and, according to the appellant, he waited for them to arrive. He was arrested and charged with uttering death threats and damaging property under the value of $5000 (mischief). On April 28, 2018, the appellant pled guilty to both charges and was given a conditional discharge, three years’ probation, a restitution order of $350 (paid in full on October 26, 2018), and 30 hours of community service. The appellant will be under probation until April 28, 2021.
(b) The July 12, 2011 Incident
71The Registrar also raises an earlier incident in 2011 in which, according to the Registrar, the appellant also became angry and threatening when confronted with a decision by racing officials with which he disagreed.
72According to records introduced by the Registrar, on July 12, 2011, the appellant raced at Ajax Down and made a complaint of foul that was deemed frivolous by racing officials. Apparently, on that same day in a later race the appellant’s horse was disqualified for interference.
73Later that day, according to a written ruling by racing officials, the appellant loudly banged on the door of the room in which racing officials were reviewing films of the day’s races. Racing Steward Fenton Platts opened the door and the appellant “…came at him shouting obscenities and threatening an invitation to a physical altercation.” The appellant was restrained by others and stated that he wished to relinquish his licence.
74According to the appellant he felt aggrieved by the racing officials’ decision and interrupted their meeting to express his displeasure. He stated that he stood in the doorway, the discussion became heated, and Mr. Platts aggressively came at him at which point he raised his fist and warned Mr. Platts that if he came closer he (the appellant) “would drop him”. He stated that he felt physically threatened and was warning Mr. Platts that he would defend himself.
75According to a ruling of the Ontario Racing Commission, the appellant was suspended for the remainder of the 2011 racing season and his licence was placed on probation for one year.
76The reasons for this decision included:
“MacLaren fully admitted to his behavioral issues throughout the day of July 12, 2011, stating that it had built up over a time period and that he felt that Officials were picking on him. The Stewards noted that MacLaren’s conduct had been continually aggressive throughout the racing season and his history of behavioural problems finally grew to a head.
MacLaren announced that he is currently seeking an anger management course and is urged to successfully complete such course prior to the 2012 racing season and provide the Stewards with documentation upon his completion.
77The appellant testified that he completed an anger management course in the winter/spring of 2012.
THE APPELLANT’S POSITION
78The appellant’s view is that the Registrar’s proposed order should be set aside.
79To place the July 20, 2017 incident in context, the appellant stated that he has been licensed in the racing industry since 1996, first as a groomer, later as an exercise rider, and then as a jockey.
80As a result of the July 2011 incident he was suspended for the remainder of the 2011 racing season. He returned the following year but was badly injured in 2013 and was unable to ride until the 2016 season. The appellant stated that his recovery was long and difficult. Part of the reason why his reaction to the immediate suspension on July 20, 2017 was so extreme was that he was just getting back to riding after a long recovery and was told that he was suspended “indefinitely” which he understood to mean “forever”.
81The appellant stated that his reaction was also due in part to his troubled relationship with Mr. Broadstock. In the appellant’s view, Mr. Broadstock had owed him money for some time and was unwilling to pay it. That led the appellant to criticize Mr. Broadstock to others and that criticism got back to Mr. Broadstock.
82According to the appellant, Mr. Broadstock retaliated by intentionally mischaracterising the July 17, 2017 conversation in the jockey room to get racing officials to suspend him. The appellant explained that he felt that Mr. Broadstock had manipulated racing officials into suspending him and that is why he “lost it”.
83The appellant now acknowledges that his reaction to the indefinite suspension was wrong. He stated that he was sorry for what occurred. He stated that he has taken responsibility for his behaviour and has never denied what he did. After he damaged Mr. Broadstock’s property he waited for the police to show up. He pled guilty to both charges.
84According to the appellant, although Mr. Broadstock claimed that the appellant caused $3,500 damage to his property, the judge did not accept that and ordered restitution in the amount of $350. That restitution has been paid and, according to the appellant, he has complied with the terms of his probation. He has never been convicted of any criminal offence before or since this incident.
85The appellant stated that since the July 20, 2017 incident he has been unable to work as a jockey. He is currently unemployed and lost his house due to foreclosure. The ongoing consequences of the incident have damaged his relationship with his spouse and children. He is currently taking medications and seeing a therapist.
86In summary, the appellant argued that he was severely provoked but understands that his behaviour was wrong. He has accepted the consequences in criminal court and feels that it would be unfair and excessive to take away his livelihood for the past 26 years in the racing industry.
ANALYSIS AND FINDINGS
87As mentioned, the central issue in this case is whether there are reasonable grounds to believe that, when acting as a licensee, the appellant will not act in accordance with the law or with integrity and honesty, or in the public interest, having regard to the appellant’s past conduct.
88In my view, having regard to the appellant’s past conduct, there are reasonable grounds to believe that, when acting as a licensee, the appellant will not act as required.
89“Reasonable grounds for belief” requires something more than mere suspicion but something less than the standard applicable in civil matters (sometimes described as “more likely than not”). Reasonable grounds will exist where there is an objective basis for the belief which is based on compelling and credible information.2
90In this case, the appellant’s past conduct does provide an objective basis for belief that he will not carry on business in accordance with law and with integrity and honesty or in the public interest.
91The essentially undisputed evidence indicates that on July 20, 2017 the appellant reacted in an extreme and violent way to a decision by racing officials to suspend him pending an investigation into allegations that he threatened to harm another horse and rider during a race.
92Racing officials were entitled to take the allegations seriously and suspend the appellant to ensure the safety of horses and riders. As a licensee, the appellant was entitled to disagree with that decision and strenuously dispute it but he was required to accept and abide by it pending the outcome of an investigation.
93Instead, the appellant reacted by uttering threats and destroying the property of the individual he considered responsible for the allegations being brought to the attention of racing officials.
94In its decision on appeal from the first Tribunal decision, the Divisional Court required the Tribunal to hold a re-hearing and consider the appellant’s responsibility to allow himself to be governed by the Registrar and analyse how the appellant’s behaviour, taken as a whole, affected the ability of the Registrar to regulate the horse racing industry.
95The facts indicate that the appellant reacted violently to regulatory action taken against him. The threats and violence were directed to another licensee whose report to racing officials apparently resulted in his indefinite suspension. This was not the first time the appellant had reacted in an extreme way to a decision of racing officials with which he disagreed - the appellant had been suspended in 2011 as a result of an earlier incident.
96Taken as a whole, the appellant’s past conduct establishes more than a mere suspicion. It establishes an objective basis for the belief that the appellant will not willingly accept or comply with a decision of racing officials in circumstances where he feels the decision is wrong or unfair to him.
97The appellant states that he accepted responsibility for his criminal behaviour, pled guilty to the criminal charges, paid restitution, and has complied with the terms of his probation. I acknowledge all of that and have taken it into account in reaching my decision. However, the function of this Tribunal is not to impose additional punishment or determine whether the appellant has been punished enough. It is to determine whether the appellant should remain licensed.
98I conclude that the appellant’s past conduct in relation to the July 20, 2017 incident, together with the earlier conduct on July 12, 2011, provides an objective basis for belief that the appellant will not act in accordance with law - it indicates that he will not accept and abide by decisions of the Registrar or his officials with which he disagrees, or feels are unfair to him.
99I have considered whether conditions would be an appropriate alternative to revocation. I have concluded that they are not. Neither the Registrar nor the appellant suggested conditions as an alternative to revocation. The issue at the heart of this matter is the appellant’s inability of unwillingness to accept the authority of racing officials and a propensity to react in an extreme and violent way to regulatory decisions that in his view are wrong or unfair. I am unaware of any condition that would adequately address that problem.
ORDER
100Pursuant to s. 20(6) of the Act, I confirm the Registrar’s proposed order to revoke the appellant’s licence as a Jockey/Exercise Person – Quarter Horse.
101The appellant also appeals the Immediate Suspension Order however that issue is now moot given my decision on the proposed order to revoke.
LICENCE APPEAL TRIBUNAL
Stephen Scharbach, Member
Released: August 26, 2019
Footnotes
- Ontario (Registrar of Real Estate and Business Brokers) v. Ontario (Licence Appeal Tribunal) [2001] O.J. 883 (Divisional Court).
- (Ontario (Alcohol and Gaming Commission of Ontario) v. 751809 Ontario Inc. (“Famous Flesh Gordon’s”) 2013 ONCA 157)