Date: 2022-03-18

Appeal under section 20 of the Horse Racing Licence Act, 2015, S.O. 2015, c. 38, Sched. 9 (“Act”), from a Notice of Proposal to Refuse to Issue a Licence under the Act

Between:

Christopher Schlueter

Appellant

and

Registrar under the Alcohol and Gaming Commission of Ontario Act, 2019

Respondent

RECONSIDERATION DECISION

ADJUDICATOR: Colin Osterberg, Member

Date: March 18, 2022

Written submissions by:

For the Appellants: November Davies, Paralegal

For the Respondent: Aviva Harari, Counsel

REASONS FOR DECISION AND ORDER

A. OVERVIEW

1In its decision dated December 22, 2021, the Tribunal denied the appellant’s motion to extend the time for filing his appeal. The appellant requests that the Tribunal reconsider its decision on the ground that there is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.

B. ISSUES

2The issue to be decided on this reconsideration is whether the appellant has established the above ground for reconsideration provided under Rule 18.2(d) of the Tribunal’s Common Rules of Practice and Procedure.

C. RESULT

3For the reasons given below, the appellant’s request for reconsideration is denied.

D. ANALYSIS

4The appellant seeks to introduce medical records with respect to his mental condition that he says are relevant to the merits of his appeal.

5I am not satisfied that the new evidence relied upon by the appellant could not have been obtained earlier or that the new evidence would likely have affected the result.

Could the records have been obtained previously?

6The appellant has not provided evidence with respect to when the medical records in question were requested. The appellant expressed his intention to appeal the Registrar’s decision to refuse to issue a licence on October 13, 2021, and the hearing took place on December 17, 2021. The appellant has not submitted evidence of communications between the appellant and the physicians who have provided the records in question. Without knowing when the records were requested, the Tribunal is unable to determine whether they might have been received earlier had reasonable diligence been exercised in making the request.

7In the appellant’s initial filing for reconsideration, it is alleged that the delay in obtaining the records was largely due to “the new protocols instituted for Covid. Many of the Doctors are currently working out of the office and do not have immediate access to the necessary records required to accurately issue the report.” However, the appellant has not filed any communications from the doctors in question stating this.

8In the appellant’s subsequent filing, it is alleged that the medical records were not available for the hearing because the appellant’s mental health practitioners determined that the release of all of the appellant’s records would not be in the appellant’s best interests from a mental health perspective. The appellant says that it took time for the doctors to determine which records could be released. The appellant also states that one of the doctors in question took a leave of absence during the relevant time period which contributed to the delay.

9It is concerning that the appellant has changed the explanation for the delay and has provided no evidentiary support for either explanation. Further, there were no reasons or evidence submitted by the appellant for why the doctors were not summoned to provide evidence at the hearing or why an adjournment of the hearing was not requested.

10I am not satisfied that the records the appellant seeks to admit could not have been obtained previously.

Would the new evidence likely have affected the result?

11At the hearing, the Tribunal found that the appellant had a bona fide intention to appeal within the appeal period; the delay in filing his appeal was significant and that he presented no reasonable excuse for failing to commence the appeal before the 15-day appeal period had expired; that the late filing of the Notice of Appeal may result in prejudice but that this was not a significant factor in the decision; and that there was little merit in the appeal. Based on these factors, the Tribunal concluded that the justice of the case required that the appellant’s request for an extension of the time to file his appeal be denied.

12With respect to the merits of the appeal, the issue for the hearing was whether there are reasonable grounds to believe that the appellant will not act in accordance with the law, or with integrity, honesty, in the public interest, or with financial responsibility. At the hearing, the Tribunal found that the appellant has a history of serious Criminal Code charges as recently as 2021. He also had several Highway Traffic Act convictions and driver’s licence suspensions which he did not disclose in his licence application.

13At the hearing, the appellant argued that he suffers from a mental disability that was not diagnosed until 2019, which influenced his actions, that many of his actions were due to an imbalance of his prescriptions, and that he has since reunited with his family and has a strong support system.

14The Tribunal found that the evidence presented shows that the appellant re-offended in March 2021 despite his mental disability allegedly being properly diagnosed and treated since 2019; the appellant was unable or unwilling to comply with conditions imposed by law, namely his probation conditions; he is currently working in the horse industry despite not being licensed to do so; and he failed to disclose his four recent Highway Traffic Act offences or his three driver’s licence suspensions in his application as he was required to do.

15The Tribunal found that the appellant had failed to demonstrate the merits of his case and that the appeal was likely to fail should a hearing take place.

16The medical records the appellant now seeks to introduce show that he has been diagnosed as suffering from a major mental illness and that he was incarcerated for participating in child pornography. The records do not state that his mental illness is solely responsible for his criminal conduct and do not state that the Registrar’s belief that he will not act in accordance with the law, or with integrity, honesty, in the public interest, or with financial responsibility is unreasonable if the appellant is properly medicated.

17Further, the medical records indicate that, in addition to the charges that were disclosed at the hearing, the appellant had “similar incidents” in the past and spent time in a mental health facility with respect to those incidents in 2016.

18The records contain no new information which might explain the appellant’s failure to disclose the Highway Traffic Act convictions or suspensions in his licence application as he was required to do.

19I am not satisfied that the new evidence submitted by the appellant would likely have affected the result of the first hearing.

E. CONCLUSION

20I find that that the appellant has not proven that there is evidence that was not before the Tribunal when rendering its decision that could not have been obtained previously by the appellant and would likely have affected the result.

F. ORDER

21For the reasons given above, I find that the appellant has not established the grounds for reconsideration as set out in Rule 18.2(d) of the Tribunal’s Rules. The request is therefore dismissed.