Michael Stanley Chomica v. Registrar under the Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996, 2021 CanLII 136821

Date: 2021-11-29

Appeal from the Notice of Proposed Order to Refuse to Issue a Licence under the Horse Racing Licence Act, 1992, S.O. 1992, Chapter 24 and Regulation as amended.

Between:

Michael Stanley Chomica

Applicant

-and-

Registrar under the Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996

Respondent

DECISION

ADJUDICATOR:

Laura Hodgson, Member

APPEARANCES:

For the Appellant:

Greg Lafontaine, Counsel

For the Respondent:

Ashley An, Counsel

Nicolle Pace, Paralegal

Heard by videoconference:

October 26, 2021

Overview

1The appellant appeals the respondent’s refusal to issue horseperson-groom and horseperson-owner licences under the Horse Racing Licence Act, 1992, S.O. 1992, Chapter 24 (“the Act”).

2For the reasons set out below, the Tribunal confirms the respondent’s proposed order to refuse the licences. Given the totality of the appellant’s conduct, the Tribunal finds there are reasonable grounds to believe that, as a licensee under the Act, he will not act in accordance with the law or with integrity and honesty, or in the public interest.

Background

3The appellant applied for a licence as a groom under the Act in June 2020. The respondent issued a Notice of Proposed Order to Refuse (“NOP”) to issue a licence on November 20, 2020. The appellant appealed this NOP on December 19, 2020.

4The appellant then applied for a licence as an owner under the Act on July 19, 2021. In an amended NOP, dated August 5, 2021, the respondent proposed to refuse to issue a licence to the appellant as a groom or owner.

5At the hearing, the appellant testified that he has loved and worked with horses for most of his life. He previously owned a horse and worked at the racetrack in the seventies. He has been betting on horses for two decades, noting that horse racing can be lucrative. The appellant testified that he wants to be an owner and eventually wants to become a horse trainer. He stated that to understand the industry he first needs to be a groomer.

6On June 16, 2020, the appellant completed the groom licence application, which asked the following questions:

i. Have you ever been charged, found guilty and/or convicted of any offence under any legislation in any jurisdiction? This includes any absolute and/or conditional discharges, withdrawn charges, suspended sentences, convictions, fines or guilty pleas.

ii. Have you ever had a licence, permit, authorization, certificate or registration of any kind suspended, or had a fine, monetary penalty or similar disciplinary action imposed on you in any jurisdiction?

iii. Have you ever had any claim or lawsuit (e.g. civil action) based in whole or in part on fraud, deceit, misrepresentation, breach of trust or similar conduct, successfully made against you in any jurisdiction?

7On his application, the appellant responded “yes” to (i) and under additional details, he added “Money Laundering, Proceeds of Crime, Ontario, 2007, 2 year conditional sentence.” In response to questions (ii) and (iii), he responded “no”.

8The respondent completed a “due diligence” inquiry into the application. An OPP Constable with the Investigations and Enforcement Branch of the Alcohol and Gaming Commission of Ontario (“AGCO”) testified that, upon receiving a request for an investigation on July 24, 2020, she immediately ran checks with the Canadian Police Information Center (“CPIC”) and the Ministry of Transportation Ontario (“MTO”). The checks revealed that, although the appellant disclosed the 2007 convictions, he failed to disclose multiple other criminal charges and criminal and regulatory convictions.

9In its materials, the respondent summarized the results of the CPIC check as follows:

Date of Offence	Criminal Code Charge(s)	Disposition
1) 1998-08-05 2) 1998-08-07 3) 1998-08-07 4) 1998-09-18	1) Fraud Over $5,000 [s. 380(1)(a), CC] 2) Fraud Over $5,000 [s. 380(1)(a), CC] 3) Fraud Over $5,000 [s. 380(1)(a), CC] 4) Fraud Over $5,000 [s. 380(1)(a), CC]	1) Suspended sentence; 12-month probation; $67,324 restitution 2 – 4) Withdrawn
1998-07-15	1) Impaired Driving [s. 253(a), CC] 2) Fail or Refuse to Provide Sample [s. 254(5), CC] 3) Fail to Stop at Scene of Accident [s. 252, CC]	1 – 2) $500 fine on each charge; driving prohibition for 12 months 3) Withdrawn
1999-11-07	1) Impaired Driving [s. 253(a), CC] 2) Over 80 mgs Operation [s. 253(b), CC] 3) Operation while Disqualified [s. 259(4), CC] 4) Fail to Stop at Scene [s. 252(1.1), CC]	1), 3) Withdrawn 2), 4) 15-days jail; driving prohibition for 2 years; 1 year probation
2001-09-01 ~ 2002-02-09	1) Criminal Harassment [s. 264(1), (2)(b), CC] 2) Uttering Threats to Cause Bodily Harm [s. 264.1(1)(a), CC] 3) Fail to Comply with Probation Order [s. 733.1(1), CC] 4) Fail to Comply with Undertaking [s. 145(3), CC]	All withdrawn; peace bond (12-months)
2007-05-10	1) Laundering Proceeds of Crime [s. 462.31(1), CC] 2) Conspiracy to Commit Criminal Breach of Trust [s. 465(1)(c), CC] 3) Possession of Proceeds of Property obtained by Crime [s. 354(1)(a), CC] 4) Poss. of Counterfeit Marks x2 [s. 376(1)(b), CC] 5) Poss. of Stolen Credit Card Data x2 [s. 342(1)(c), CC] 6) Poss. of Forged Passport [s. 57(3), CC] 7) Poss. of an Instrument for Forging a Trademark [s. 409(1), CC]	1 – 2) Jail for 2 years (less a day); conditional sentence order on each charge; 20- days pre-sentence custody 3 – 7) Withdrawn
2009-11-11	1) Uttering Forged Document [s. 368(1)(b), CC] 2) Attempt Fraud Over [s. 380(1)(a), CC]	All withdrawn
2010-11-06	1) Assault [s. 266, CC] 2) Assault Cause Bodily Harm [s. 267(b), CC]	All withdrawn
2019-01-29	Theft Under $5,000 [s. 334(b), CC]	Withdrawn

10The MTO inquiry revealed that the appellant had fifty Highway Traffic Act (“HTA”) convictions and numerous HTA suspensions since 1976. The most recent HTA conviction was in 2016 for speeding. While reviewing the appellant’s MTO record, the Constable noted that the appellant’s year of birth on the AGCO application was 1956 but his year of birth listed on his driver’s licence was 1955.

11The Constable also conducted an “open source check” (review of publicly available information). She determined that in 2013, the appellant received a two-year federal sentence after pleading guilty to three counts of fraud contrary to section 126.1 of the Ontario Securities Act. The Constable then confirmed the convictions and the sentence directly with the Ontario Securities Commission (“OSC”).

12A summary of the offences on the OSC website states:

Chomica admitted to being the architect of two fraudulent advance-fee schemes that targeted investors in Ontario, Europe, the United Kingdom, Africa and Asia, as well as arranging for bank accounts, under his control, to be used in a third fraudulent advance-fee scheme that primarily targeted investors residing in the United Kingdom. In total, investors lost approximately $591,470 in combined U.S. and Canadian funds as a result of the three schemes.

Chomica’s involvement in the schemes began around October 2009 and ran until November 2010 when the OSC executed a search warrant at Chomica’s residence in downtown Toronto.

13Additionally, the Constable’s investigation revealed that the appellant has failed to comply with prior restitution/payment orders. The appellant has an outstanding restitution order to the Bank of Montreal for $67,324.00 in relation to a 1998 fraud conviction, an outstanding restitution order to the District of Pennsylvania for $38,858.00 and a partially outstanding disgorgement order with the OSC related to the 2013 fraud charges. The appellant also has an overdue account with the Ministry of Finance in the amount of $1,100 in relation to a 2001 impaired driving conviction.

14As part of her investigation, the Constable spoke to the appellant by telephone on July 30, 2020. The appellant acknowledged the omitted charges and offences. He provided the Constable with RCMP background checks listing prior charges and convictions. The appellant had obtained these when he contemplated seeking a pardon years earlier. According to the officer, the appellant acknowledged that he should have disclosed all offences and stated that he had “misread” the questions. With respect to the OSC offences, for which he served two years in prison, the appellant acknowledged the offences and pointed the officer to the OSC website for more details.

15During the interview, the appellant also fully acknowledged the outstanding restitution orders. He also clarified that his year of birth was 1956 and provided a copy of his passport and birth certificate to verify. He told the officer that the date on his driver’s licence was an MTO error and that he had made no efforts to correct it.

16In his testimony at the hearing, the appellant again acknowledged his past record. In his view he has ‘done his time’ and has ‘left troubles behind’. The appellant stated that he “misread” the application and had no intention to hide information. The appellant testified that he assumed there would be a further compliance check. When he spoke with the Constable the appellant believed he fully answered her questions and, in his view, assisted her by providing CPIC information she may not have had.

17At the hearing, the appellant acknowledged his outstanding restitution orders. He also acknowledged his HTA record noting he had a “heavy foot” when he was younger. The appellant also candidly agreed that he had been aware of the error on his driver’s licence for some time. The appellant testified that he may have tried to have it corrected but noted that if the police wanted it corrected, they could contact the MTO. In his view, it could not have been that important if they had not done so.

18The appellant acknowledged that, after completing the HRLA application, he signed a declaration that all answers were truthful and any false, incomplete, or misleading information could result in refusal of a licence. He agreed that he understood what a conviction and a charge was and that he did not make any inquiries with the AGCO to clarify what information was required. The appellant stated that, in retrospect, he didn’t give the application proper scrutiny, saying that he “made a mistake - end of story”. The appellant also noted that he had checked a box permitting the respondent to run a CPIC check.

19The appellant provided evidence with respect to prior charitable acts. At the hearing, two videos of 2005 news clips were shown. The first detailed the theft of a scooter that belonged to a young woman who was quadriplegic and could not afford to replace it. A follow-up news video reported that an “anonymous donor” provided the woman with the $5000.00 necessary to replace her scooter. The appellant testified that he was, in fact, the ‘anonymous donor’. The respondent asked the Tribunal to give limited weight to this evidence as there was no supporting documentation that the appellant was the donor.

20The appellant testified that in 2007 after reading an article about a personal support worker who was unable to renew her licence because of an express toll bill that had ballooned over time, he paid her bill. The appellant paid $1,500.00, via a Toronto Sun reporter so that the personal support worker could renew her licence.

21The appellant also testified that, for a number of years, he has donated meals for the homeless. He provided an undated letter from a charitable organization indicating that the appellant has volunteered serving meals and made “generous donations, sometimes several thousand dollars”. The appellant also provided a letter from the Children’s Wish Foundation indicating that, dating back to 2003, he has sponsored two children through a total donation of $16,500. In cross-examination, the appellant agreed that at the time of these charitable contributions he had outstanding restitution orders.

22The manager of Horse Racing Admissions (HRA) with the AGCO testified that a licence under the act is a privilege not a right. The Act is meant to protect the public, horses, and individuals who make a living from horse racing. She explained that rules of racing govern conduct in the industry and participants are required to fully comply.

23The HRA manager indicated that, after reading the OPP report with respect to the appellant, she determined that it was not in the best interest of horse racing to issue him a licence. She was concerned by the number of charges over an extended period, the nature of the charges which included offences of dishonesty, the non-disclosure, and the dated restitution orders. The manager noted that in horse racing there can be monetary penalties if rules are broken and it is expected that they will be paid.

24She also cited concerns with respect to the appellant’s driving history and the “staggering” number of infractions and licence suspensions. With respect to the wrong birthdate on his licence the manager testified that, in her view, this spoke to the issue of the appellant not taking responsibility.

25The HRA manager testified that having a criminal record does not necessarily disqualify someone from obtaining a licence under the Act. She agreed with defence counsel that the appellant’s convictions were now relatively dated.

26The manager stated that an applicant is expected to complete the application completely and honestly and to inquire if they do not understand what is required. The manager noted that the application is the HRA’s first opportunity to assess the applicant.

27Ultimately, the manager concluded that the appellant’s license was to be refused because, given his history, he would not follow the rules of horse racing or act with honesty and integrity. She also noted that, given the nature of the appellant’s past conduct, issuing a licence in these circumstances, would send a wrong message to the horse racing community.

28When asked about the appropriateness of imposing conditions on the appellant’s license rather than a full refusal, the manager indicated that conditions were not feasible in these circumstances. In her view, there was no indication the appellant would disclose or comply as required. She disagreed with the suggestion that concerns could be allayed by requiring the appellant to regularly provide an updated CPIC.

Law and Analysis

29Horse racing is a regulated industry in Ontario. The purpose of the Act is to regulate the operation of racetracks and off-site betting in Ontario. Regulation is accomplished in part by restricting participation in the industry to those who are licensed (see 11849 v Registrar of Alcohol, Gaming and Racing, 2019 CanLII 83602 (ON LAT)). Licensees must be aware of and comply with the Act, and act with honesty and integrity and in the public interest.

30The Registrar shall issue a proposed order to refuse a licence if 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 his past conduct (s. 14 (a), s. 20 of the Act).

31The licensee can appeal the proposed order and request a hearing before the Tribunal. Sections 20(6) and (7) of the Act state that the Tribunal, after holding a hearing, can confirm or set aside the NOP and may substitute its opinion for that of the Registrar.

32In Ontario (Alcohol and Gaming Commission of Ontario) v. 751809 Ontario Inc., 2013 ONCA 157, the Ontario Court of Appeal found that, as a standard of proof, ‘reasonable grounds for belief’ is lower than ‘balance of probabilities’. It requires more than mere suspicion and an objective basis for the belief which is based on compelling and credible information. The Court of Appeal also noted that, when looking at past conduct, the Registrar is entitled to look at conduct outside of the four corners of the licence, which includes both criminal and noncriminal conduct.

33In these circumstances, the respondent has established the necessary grounds to refuse the appellant a licence as a groom or owner and the Tribunal confirms the refusal. The appellant’s dated but lengthy criminal record, his outstanding restitution orders, and his failure to fully disclose prior offences on the HRLA application demonstrate a failure to follow the law or act with honesty and integrity as required by the legislation.

34The appellant candidly acknowledged his past record and, when contacted by the investigating officer, was cooperative and forthright. None the less, his criminal and HTA record display a significant pattern of failing to comply with the law. His criminal record includes crimes of dishonesty (i.e., fraud, laundering proceeds of crime and conspiracy to commit criminal breach of trust). Notably, in 2013, the appellant was sentenced to two years in custody for offences under the Ontario Securities Act. He acknowledged being the ‘chief architect’ of a scheme that defrauded investors of over $500,000 dollars. Convictions such as this, that are industry specific, are of significant concern to the Tribunal (see Hudson v. Registrar, Bailiffs Act, 2018 ONLAT BA 10942).

35As noted by the appellant’s counsel, his last criminal charge was withdrawn in 2019, the last criminal conviction was in 2009, the security offence convictions were in 2013 and the last HTA conviction was in 2016. The appellant has, by all appearances, been law abiding for an extended period. This alone, however, does not mitigate the seriousness of his past record. Further, contrary to the submission that the appellant has ‘paid the price’ and is now rehabilitated, the appellant has failed to pay restitution on multiple outstanding orders. He has failed to provide reparations for harm done or taken financial responsibility for his prior offences.

36As noted, the appellant was honest and forthright when dealing with the investigating officer. Similarly, before the Tribunal, he candidly acknowledged his criminal and regulatory record. The appellant did not, however, disclose his full record as required on his June 2020 license application. He simply noted one set of offences committed in 2007. The appellant testified that he misread and misunderstood the application. He later testified that he assumed there would be a ‘compliance check’. The appellant also suggested that his subsequent disclosure and cooperation with authorities, although late, demonstrated he did not intend to mislead.

37The HRA manager testified that they expect the application to be honestly and fully completed. As noted in 8017 v Registrar, Collection Agencies Act, 2013 ONLAT 51149, “the application form is a first test of integrity.” The appellant, based on materials he later provided to the investigator, had full knowledge of his criminal history yet failed to provide it on the application. This, undoubtably, raises issues with respect to the appellant’s honesty and integrity. The Tribunal also finds the appellant’s explanation that he knew the respondent would do a compliance check suggests minimal insight into his own responsibility to complete the application fully and honestly.

38The appellant having the wrong birthdate on his driver’s license for an extended period is not, on its own, very significant. It is, however, notable that he believed it was the police’s responsibility to rectify this error on his personal documentation. Given the appellant’s criminal history, which includes a prior charge of possession of a fraudulent passport, one would expect him to be particularly diligent in ensuring his personal documentation was accurate. Similarly, the appellant would be expected to be diligent in complying with any documentary or record-keeping obligations if he were licenced, and would also be required to act with honesty and integrity.

39The appellant presented evidence of his prior charitable acts. The Tribunal has no doubt that the appellant has been generous to various community members and organizations in the past. Generosity, however, is not akin to honesty and integrity. Moreover, as noted by the respondent, during the same period that the appellant was donating to community causes, he also had significant outstanding restitution orders. Ultimately, the appellant’s charitable conduct is insufficient to counterbalance the appellant’s significant negative past conduct.

40Counsel for the appellant suggested that a licence with conditions, such as a requirement to regularly submit a CPIC check and requirement to pay outstanding restitution, would be appropriate. The HRA manager testified that, in the circumstances, there is nothing to indicate that that the appellant would comply with conditions imposed. It is unclear to the Tribunal, why, if the appellant has yet to comply with court ordered restitution, he could be expected to comply with a condition ordered by this Tribunal. In the circumstances of this case, conditions would not be sufficient to ensure the appellant acts with honesty and integrity and complies with the law.

41The Tribunal finds that the totality of the appellant’s past conduct gives reason to believe that he will not, when acting as a licensee, act in accordance with the law or with integrity, honesty, or in the public interest.

Order

42The Tribunal confirms the Registrar’s proposals to refuse to issue the licences.