Citation: Lopez v. Registrar under the Alcohol and Gaming Commission of Ontario Act, 2019, 2023 ONLAT 14797 HRLA

RECONSIDERATION DECISION

Before: Avril A. Farlam, Vice Chair

Date of Order: 07/19/2023

Tribunal File Number: 14797/HRLA

Case Name: Richard Lopez v. Registrar under the Alcohol and Gaming Commission of Ontario Act, 2019

Written Submissions by:

For the Appellant: Shale Wagman, Counsel

For the Respondent: Elizabeth S. Maishlish and Dragana Rakic, Counsel

WARNING: This file involves reference to materials governed by a publication ban.

OVERVIEW

1This request for reconsideration was filed by the Registrar under the Alcohol and Gaming Commission of Ontario Act, 2019 ("Registrar").

2It arises out of my April 27, 2023 decision (the "Decision") in which I set aside the Order for Immediate Suspension dated March 16, 2023 (the "Order") issued by the Registrar pursuant to the Horse Racing Licence Act, 2015, S.O. 2015, c. 38, Sched. 9 (the "Act").

Confidentiality Order – Publication Ban

3At the request of the Registrar and on the consent of the appellant, I also made a confidentiality order that there is a publication ban with respect to tabs 3 to 6 inclusive of exhibit 3 consistent with the warning contained in the court file from which these documents were obtained. While access to the material is permitted, members of the public are reminded that publishing, broadcasting, or transmitting in any way some or all of the material in tabs 3 to 6 of exhibit 3 in this Tribunal file is a contravention of the Criminal Code. To be clear, this decision does not modify the existing confidentiality order in any way.

The Order for Immediate Suspension of the Appellant's Licences

4The Order was to immediately suspend the appellant's licences as a Horseperson, Exercise Person, and Association Official (the "licences") under s. 21(1) of the Act, which provides that the Registrar may, by order, suspend a licence without serving a notice of proposed order under s. 20 if the Registrar considers it to be necessary in the public interest.

5The Order states that the immediate suspension is necessary in the public interest because the appellant was charged on March 14, 2023 with seven charges under the Criminal Code, held for bail and later released pursuant to a release order with conditions imposed by the court. The Order states that the Registrar has learned that the alleged conduct took place on numerous occasions over nearly four years and at a time when the appellant was in a position of trust and authority towards the alleged victim, a minor and family friend.

6The Order also states that the Registrar considers it necessary in the public interest to immediately suspend the appellant's licences on the basis that, as a regulated industry in Ontario, participation in horse racing requires the utmost honesty and integrity to be demonstrated by a licensee in order to maintain the confidence of the public in the integrity and the regulation of the conduct of horse racing.

RESULT

7The Registrar's request for reconsideration is dismissed.

ANALYSIS

8The grounds for a request for reconsideration to be allowed are contained in Rule 18 of the Licence Appeal Tribunal, Animal Care Review Board and Fire Safety Commission Common Rules of Practice & Procedure, October 2, 2017, as amended (the "Rules"). The Registrar relies on Rule 18.2(b) and submits that the I made an "error of law and an error of mixed fact and law" (my emphasis) such that the Tribunal would have likely reached a different result had the error not been made." Although the Registrar makes a minor misstatement of the Rule, I am satisfied that that I may consider this request for reconsideration under Rule 18.2(b).

9In summary, the Registrar submits that I made errors of fact and law by improperly fettering my discretion by relying on conditions of bail imposed by the court and by "mischaracterizing the nature of a sworn Information and other court documents".

10The Registrar asks that I "vacate the decision" and reinstate the Order, or in the alternative, "vacate the decision, reinstate the Order and set the appellant's request for a hearing down for a rehearing" or "such further and other relief as the Tribunal deems necessary and which the Rules permit". I take this as a request under Rule 18.4(b) that I vary or cancel the decision, or alternatively, order a rehearing.

11In response, the appellant submitted that Reconsideration is not the correct procedure and that an appeal would be the only way to possibly overturn the Decision.

b. Error of Law or Fact Such that the Tribunal Would Likely Have Reached a Different Result had the Error not been Made

No Fettering of Discretion Took Place

12I find no errors of law or fact in the Decision, let alone an error that would have caused me to reach a different result, arising from "improperly fettering my discretion by relying on conditions of bail imposed by the court". I did not fetter my discretion. I declined to exercise my discretion to impose conditions.

13At the hearing the Registrar submitted that there are no enforceable conditions that could be imposed on the appellant's licences as an alternative to immediate suspension. I agreed with the Registrar's submissions on this point as expressly set out in paragraph 53 of the Decision. I declined to exercise my discretion to impose conditions as requested by the Registrar. The fact that I indicated the only condition that I "might have (emphasis added) considered appropriate here has already been imposed by the court in the release order…" does not alter the result that I agreed with the Registrar's submissions and imposed no conditions. Having been granted a result on this point in accordance with its submissions at the hearing, the Registrar cannot now argue that the result requested and granted was an error in law or fact.

No Mischaracterizing the Nature of a Sworn Information and Other Court Documents Took Place

14I find no errors of law or fact in the Decision, let alone an error that would have caused me to reach a different result, arising from mischaracterization of the nature of the sworn Information and other court documents.

15The Registrar put forward the oral evidence of two witnesses, neither of whom had any first hand knowledge about the alleged conduct of the appellant and relied on documents and information prepared by others. I found the evidence of Detective Sergeant Noble to be unpersuasive for the reasons set out in paragraph 41 of the Decision, specifically that there is no evidence that he conducted any investigation or interviewed any alleged victim and provided me with no sworn statement by any alleged victim, investigating police officer, or any other persuasive evidence that the alleged conduct likely took place.

16Although the Registrar suggests that I "failed to recognize that the Tribunal had a sworn statement of an OPP police officer before it, namely the court Information, the court Information was recognized and considered by me. The nature of a court Information is well understood. The Information is specifically referred to in paragraph 37 of the Decision and that Detective Sergeant Noble received the Information is acknowledged. In paragraph 41 I found that although Detective Sergeant Noble provided testimony under oath, "…there is no evidence that he conducted any investigation or interviewed any alleged victim and provided me with no sworn statement by any alleged victim, investigating police officer, or any other persuasive evidence that the alleged conduct likely took place". The absence of a "sworn statement", read in the context of paragraph 41, refers to the fact that there is no evidence that Detective Sergeant Noble conducted any investigation and "…provided me with no sworn statement by any alleged victim, investigating police officer, or…" In other words, not only did Detective Sergeant Noble not conduct any investigation himself but he also did not provide a sworn statement by "any investigating police officer". This does not refer to the Information which had already been acknowledged in paragraph 37 of the Decision.

17However, even though the court Information put in evidence before me at the hearing by the Registrar is sworn by an OPP officer who did not testify before me, I considered the Information. I also considered the redacted Crown Brief Synopsis dated March 13, 2023 which is not a sworn statement and bears the name of an author who was not a witness before me.

18Both of these documents were admitted into evidence as exhibits before me at the request of the Registrar. Both of these documents remained hearsay because neither the OPP police officer who swore the Information nor the author of the Synopsis testified before me and, as a result, were not subject to cross-examination to test their statements. At best, both of these documents can be considered proof that their authors believe the statements in them to be true. I was not convinced to immediately suspend the three licences of the appellant in the public interest based largely on this hearsay evidence, even considered together with the Registrar's other evidence.

19I found in paragraph 42 that this hearsay evidence is unpersuasive evidence which fails to establish that the alleged conduct likely occurred and that, as a result, the immediate suspension of the appellant's licences is necessary in the public interest. I found that this is a pre-requisite to my finding that the Order is necessary in the public interest.

20As an adjudicator, it is my function to weigh the evidence before me at the hearing. I did so fully and fairly and my finding that the evidence before me was unpersuasive for the reasons given is an appropriate finding on the record before me. The Registrar's position on the persuasiveness of its evidence does not invariably require me to agree that is true; rather, the nature of the adjudicative process involves my independent determination whether I agree with the Registrar.

21It was undisputed at the hearing that the appellant has been licenced in the horse racing industry in Ontario since 2006, has no prior criminal record or history of regulatory discipline as set out in paragraphs 27, 28 and 29 of the Decision. It was also undisputed that after the appellant's arrest on March 14, 2023, the appellant was released subject to conditions. There was no evidence before me that the appellant breached any of the court ordered conditions. At the time of the hearing before me, the appellant's charges were pending before the court and there is no conviction. The appellant, as is his legal right, is defending the charges.

22Although the Registrar submits that "both the charges and arrest were based on more than a mere hunch or suspicion that the alleged conduct took place", there were no findings in Decision that "a mere hunch or suspicion" led to the charges against the appellant. The burden was on the Registrar at the hearing to establish that the appellant's three licences should be immediately suspended in the public interest and I found that the evidence put forward did not satisfy the burden. Reconsideration is not an opportunity to re-argue one's case.

23Although the Registrar suggests that I failed to acknowledge that Detective Sergeant Noble assisted in the appellant's arrest, this is specifically acknowledged in paragraph 37 of the Decision where I noted "Detective Sergeant Noble assisted the Caledon police during the arrest…"

24The Registrar acknowledges in reconsideration submissions that there are instances where direct evidence is available in support of an immediate suspension necessitated by criminal conduct. Here, the Registrar did not bring forward any evidence that was not hearsay and that could be tested in cross-examination. While the Tribunal can accept hearsay evidence, in this particular case, I found it was not sufficiently persuasive given the totality of the evidence for the reasons set out in paragraphs 41, 42, 43, 44, 45, 46, 48, 49 and 50.

25The Registrar submits that if I had properly assessed the sworn statements and documents that were in evidence, I would have then considered whether the alleged conduct gives to reasonable ground to believe that, when acting as a licensee, the appellant would not act in accordance with the law, or with integrity, honesty, or in the public interest having regard to his past conduct. Having completed such assessment, I would have found that it is necessary in the public interest to suspend the appellant's licences. In fact, I properly assessed the sworn statements and documents and I specifically noted the evidence of Ms. Cadeau on this point in paragraphs 39 and 46, the testimony of Detective Sergeant Noble in paragraphs 41 and 46, and the submissions of the Registrar in paragraph 48. All evidence before me was reviewed in detail, taken into consideration, weighed appropriately and in accordance with the law and no evidence was "mischaracterized".

26The Registrar made submissions at the hearing about the state of the evidence and case law. These were considered by me as set out in paragraphs 47 and 48.

27However, in the end, I found that the only evidence of the conduct attributed to the appellant put forward in documents and testimony from Detective Sergeant Noble and Ms. Cadeau was supplied by others. I also considered that, although the conduct alleged is serious, the most recent conduct is alleged to have taken place more than five years ago.

28Dissatisfaction with the result contained in the Decision does not establish that that an error of law or fact was made such that the Tribunal would likely have reached a different result had the error not been made.

29I find that the Registrar has not established the ground for reconsideration put forward by the Registrar. The grounds for reconsideration of a Tribunal Decision are limited, specific and their purpose is to correct errors. In order to succeed on a reconsideration request, the ground must be proven.

30Because the Registrar has requested reconsideration, the onus is on the Registrar to establish the ground put forward and the Registrar has failed to do so. The Registrar's reconsideration submissions appear to be an attempt to reargue the Registrar's case in a new way. The Tribunal has long recognized that a reconsideration is not an opportunity to reargue one's case,¹ nor is it a hearing de novo or an appeal.²

CONCLUSION AND ORDER

31For the reasons noted above, I dismiss the appellant's request for reconsideration of my Decision.

Avril A. Farlam Vice Chair Tribunals Ontario – Licence Appeal Tribunal

Footnotes

1. 1N.D. v. Aviva Insurance Company, 2021 CanLII 64232; N.R. v. Unifund Assurance Company, 2020 CanLII 101753; Gore. Rusk, 2022 ONSC 2893 at para. 50 (Div. Crt).
2. 2Warren v. Licence Appeal Tribunal, 2022 ONSC 3741 at para. 22 (Div. Crt.).