Tribunals Ontario

Licence Appeal Tribunal

Tribunaux décisionnels Ontario

Tribunal d'appel en matière de permis

Licence Appeal Tribunal File Number: 16054/HRLA

In the matter of an appeal of a Notice of Proposed Order to Refuse to Issue a Licence by the Registrar under the Alcohol and Gaming Commission of Ontario Act, 2019 pursuant to the Horse Racing Licence Act, 2015, S.O. 2015, c. 38, Sched. 9

Between:

Leon Warren Mansfield

Appellant

and

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

Respondent

DECISION AND ORDER

APPEARANCES:

ADJUDICATOR:

Hande Bilhan, Vice-Chair

For the Appellant:

Jean Marc MacKenzie, Counsel Leon Murray Mansfield, Appellant

For the Respondent:

Aviva Harari, Counsel Isaac Pekeles, Student-at-law

Observer:

James Whelan, President, Harness Racing Association

HEARD:

January 16, 2025

Decision and Order 16054/HRLA

OVERVIEW

1Leon Murray Mansfield (the “appellant”) appeals the Notice of Proposed Order to Refuse to Issue a Licence (the “NOP”) by the Registrar under the Alcohol and Gaming Commission of Ontario Act, 2019 (the “respondent”) that refuses to licence the appellant as a Horseperson under the Horse Racing Licence Act, 2015, S.O. 2015, c. 38, Sched. 9 (the “Act”), dated June 27, 2024.

2The Registrar issued the NOP on the basis that 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.

Issue in Dispute

3The issue to be decided at the hearing is whether or not the NOP should be carried out.

RESULT

4Having considered all of the evidence and the submissions from all parties, and for the reasons that follow, I confirm the NOP and direct it be carried out by the Registrar.

CONFIDENTIALITY ORDER - A PUBLICATION BAN IS IN EFFECT

5At the end of the hearing, the respondent raised the fact that the last criminal conviction related to Mr. Mansfield is subject to a publication ban. The appellant did not express any concerns regarding a publication ban.

6Tribunals are generally open to the public, in accordance with the open court principle: see Toronto Star v. AG Ontario, 2018 ONSC 2586. Tribunals may make exceptions to the openness of hearings for privacy interests.

7The Supreme Court of Canada in Sherman Estate v. Donovan, 2021 SCC 25 (“Sherman Estate”) outlines a three-part test. All three prerequisites must be met in order to properly impose a discretionary limit on openness:

i. court openness poses a serious risk to an important public interest;

ii. the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and,

iii. as a matter of proportionality, the benefits of the order outweigh its negative effects.

8The person seeking a confidentiality order of any type (including a publication ban) has the onus of displacing the general rule of openness. Upholding the presumption of openness generally involves a recognition that neither individual sensibilities nor mere personal discomfort associated with participating in judicial or quasi-judicial proceedings are likely to justify a restriction on the open court principle.

9To the extent that a publication ban imposes restrictions on publishing information contained in the Tribunal’s adjudicative record, both the open courts principle and the Tribunal Adjudicative Records Act, 2019 (“TARA”) are relevant. Pursuant to s. 2(2) of TARA, the Tribunal may order that all or part of an adjudicative record be treated as confidential and not disclosed to the public if the Tribunal determines that:

i. matters involving public security may be disclosed; or

ii. intimate financial or personal matters or other matters contained in the record are of such a nature that the public interest or the interest of a person served by avoiding disclosure outweighs the desirability of adhering to the principle that the record be available to the public.

10Given that intimate personal matters are contained in the court records that are in the respondent’s Book of Documents, I find that a publication ban outweighs the desirability of adhering to the principle that the adjudicative record be available for publication, broadcasting or transmission.

11I find that the documents referenced by the respondent contain criminal information with a publication ban noted to have been made under s. 486.4(1) of the Criminal Code, which permits the judge or justice in a criminal proceeding to restrict publication, broadcasting or transmission of information that could identify the victim or witness in a proceeding involving sexual offences.

12I find that the test applied in Sherman Estate v. Donovan is met in this case. I find that in order to comply with the Criminal Code publication ban, a publication ban on the same information is required in this Tribunal matter. Were a ban not made here, the Criminal Code publication ban could be breached. I also find that measures lesser than a publication ban are not appropriate because they would allow circumvention of the court-ordered publication ban. Aligning the Tribunal’s order with the court’s publication ban is proportionate, as it balances the public’s ability to access the record with the serious risk to the privacy interest of those involved in those criminal proceedings if the information were published, broadcasted or transmitted.

13For the reasons above, I order that there be a publication ban with respect to tabs 8, 9, 10 and 12 of the Registrar’s Book of Documents marked as Exhibit 3, consistent with the warning contained in the court file from which the 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 information contained in tabs 8, 9, 10 and 12 of the Respondent’s Book of Documents in this Tribunal file is a criminal offence punishable on summary conviction under the Criminal Code by a fine of up to $5,000 or to imprisonment of up to two years, or both.

ANALYSIS

14Under s. 19 of the Act, the Registrar may propose to suspend or to revoke a licence for any reason that would disentitle the applicant to the issuance or the renewal of the licence.

15The licencee may then request that the Tribunal hold a hearing pursuant to subsections 20(2) and (3) of the Act to confirm or set aside the NOP, or direct the Registrar to take the action that the Tribunal considers the Registrar ought to take to give effect to the purposes of the Act under s. 20(6). The Tribunal may substitute its opinion for that of the Registrar under s. 20(7) and may attach conditions to its order or to the licence that it considers appropriate under s. 20(8).

16While the Registrar bears the onus at the hearing to establish the facts that give rise to its NOP, the appellant bears the onus of proving that there are no reasonable grounds to believe that he will not act with honesty, integrity and in the interest of the public, based on his past conduct.

17The following facts are not in dispute:

i. The appellant has been licenced under the current and predecessor legislation governing the horse racing industry in Ontario for about 44 years, with licence records provided in the Notice of Appeal (“NOA”) dating back to 1983.

ii. The appellant was convicted of sexual assault on three different occasions, in 2002, 2004, and 2021, each time involving women he was employing for his horse racing work. In each instance he was licenced under the Act.

iii. The appellant had his licence suspended in 2005 with a fine and conditions imposed after a probationary period, after his first two convictions for sexual assault.

iv. The appellant has a lifetime order to comply with the Sex Offender Information Registration Act.

18At the hearing, the respondent’s counsel stated that the appellant sexually assaulted his significantly younger employees over a 20-year span while he was licenced under the Act, and that he therefore acted without honesty and integrity as he was engaging in criminal conduct. She submitted that the Registrar’s denial of the licence was not as a result of the appellant’s conduct as a licencee but rather his criminal conduct while he was licenced under the Act. The respondent maintained that the appellant had not acted with honesty, integrity and in compliance with the law, and that he is therefore not entitled to get licenced under the Act.

19The respondent’s witness, Ms. Lisa Hocking, Manager of Licence Eligibility for the Alcohol and Gaming Commission of Ontario (“AGCO”) testified that the appellant applied for a licence as a trainer and an owner under the Act, on April 20, 2024.

20Ms. Hocking testified that the appellant was denied a licence by the Registrar as he was convicted of sexual assault on three separate occasions. She further testified that the sexual assaults occurred while he was licenced and that he was in a position of authority as the employer of the women he assaulted.

21Ms. Hocking testified that while there were no major red flags in his licencing history related to his licenced activities, he had been suspended for three months in 2005 with conditions put on his licence, including undergoing supervised counselling, due to his criminal convictions.

22She submitted that by assaulting young women in his employ, he failed to live up to the licence requirements to act with honesty, integrity and in compliance with the law. She also stated that the appellant had a second chance to change his behaviour after his licence was suspended with conditions in 2005 pursuant two earlier sexual assault convictions. She further argued that giving the appellant a licence under these circumstances would send a very bad message in a regulated industry and that it is acceptable to behave in this manner.

23In responding to questions from the appellant that the assaults had occurred on private farms, Ms. Hocking stated that while the offences took place on private properties and not in regulated facilities, his conduct as a licencee still needed to be honourable and in compliance with the law, and it was not. She testified that there was no distinction in the Act between conduct at private versus licenced facilities.

24Ms. Hocking confirmed the appellant’s position that for the most part since he has been licenced, he had not breached the Act. She stated that she was not aware of other complaints brought against him as a licencee but also pointed out that unless noted in his licence record, she would not necessarily be aware of other complaints against the appellant.

25Ms. Hocking stated that the Registrar maintains their position that the appellant does not qualify for a licence under the Act.

26The appellant submitted that he changed his licence application from two categories, owner and trainer, to only the owner category in order to continue participating and working in the industry while minimizing his contact with staff. He submitted that he did so as he appreciated the concerns raised by the Registrar around his past misconduct. He offered that this was a compromise where he wouldn’t be directly involved in the training of horses and interacting with staff such as horse grooms, but he could still be actively involved in the industry he had spent his entire working life and career in. He testified that the assaults had occurred in the context of his role as a trainer when he was working long hours under stressful conditions and not as an owner.

27The appellant expressed remorse for his criminal actions. He stated that he voluntarily pleaded guilty to all of the charges which he was convicted of, without going to trial, in order to spare the victims from having to go through the court process. He testified that he completed the mandated Sex Offender Relapse Prevention Program offered by the Ministry of the Solicitor General which taught him a lot about how wrong his behaviour was. He further stated that having granddaughters who are growing up around him gives him further perspective on why his actions were unacceptable. He submitted that he had served his time and paid his dues to society.

28He argued that the owner licence is more limited in terms of interacting with others, such as grooms, and therefore he would not be a danger to anyone. He stated that he would mostly keep to himself while still owning a horse and participating in races and other industry events.

29He testified that he had not attracted compliance or regulatory concerns around his licenced activities during his lengthy career in the industry and showed his willingness to comply with the rules of the industry for 44 years.

30The appellant also submitted that he continues working in the industry in an unlicenced capacity as a supplier, and therefore, continues to be around the same people regardless of whether he is licenced.

31Regarding the Registrar’s concerns about the appellant gaining access to the backstretch areas of racetracks that are only available to licenced individuals, such as grooms, trainers and owners, the appellant maintained that he would not be alone with anyone at those premises and that those premises are generally monitored with cameras. He also submitted that the offences took place on an unregulated farm and not in regulated facilities.

32The appellant also made submissions around his income suffering as a result of losing his licence. He submitted that public trust in the industry needs to be balanced with a fair opportunity for the appellant to rehabilitate and earn a livelihood. He concluded that the owner licence poses less risk, that he is financially responsible, and that he has learned his lesson and he should have another chance of working in the industry.

33Section 14 (a) of the Act states that the Registrar shall refuse to issue a licence to an applicant or to renew the licence of an applicant if there are reasonable grounds to believe that, when acting as a licencee, the applicant 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 applicant.

34In Yarco Developments Inc. v. Home Construction Regulatory Authority (Registrar), 2024 ONSC 93, the Divisional Court emphasized that “the reasonable grounds for belief standard does not require a regulator to weigh all evidence as a whole, but simply to reach an opinion based on compelling and credible information.”

35The courts have also established that the “reasonable grounds to believe” standard requires something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities. In essence, reasonable grounds will exist where there is an objective basis for the belief which is based on compelling and credible information. See, for example, Ontario Alcohol and Gaming Commission v. 751809 Ontario Inc. (Famous Flesh Gordon’s), 2013 ONCA 157 and Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40.

36Weighing all the evidence presented to me, I find that the appellant has not met his burden to establish that reasonable grounds do not exist to deny him licensure. In view of the evidence of past and present conduct before me, I find that there are reasonable grounds to believe that the appellant will not carry on business in accordance with the law and with integrity and honesty.

37I have not considered the impact of licencing on the appellant’s income as the public interest in a properly administered licencing regime outweighs economic consequences to the appellant.

38With regards to the appellant’s claim that an owner licence would be more limited than a trainer licence, I agree with the respondent that an owner licence would still provide the appellant with access to all the regulated facilities that a trainer could access and would continue to place him in a position of authority over other licencees such as grooms. His repeated past criminal conduct raises serious concerns about his future conduct in this regard.

39I do not put weight on the appellant’s argument that the crimes occurred on farms, and not on licenced properties. The relevant factor is that he was licenced under the Act at the time of the offences and had an obligation to act with honesty, integrity and in compliance with the law, regardless of location (see, e.g., Famous Flesh Gordon’s, above, at para. 29).

40As to the appellant meeting the conditions of an owner licence due to him being financially responsible, I find that the appellant does not meet the other part of licence eligibility test, which is to act with honesty, integrity and in compliance with the law. Financial worthiness does not overcome the honesty and integrity criteria in the legislation.

41Past conduct need not always prevent an individual from getting licenced. However, the evidence before me suggests that there are reasonable grounds to believe that the appellant’s past criminal conduct may be repeated.

42The appellant was convicted on three different occasions of sexual assault and multiple attempts by the Registrar to rehabilitate the appellant were not successful. His licence suspension in 2005 was combined with counselling and conditions before he was reinstated. This did not stop him from reoffending again in 2019. While the appellant argued in favour of being afforded a second chance, I find that he was provided with multiple opportunities and has not acted with honesty and integrity as required of each licencee by the Act.

43In balancing fairness to the appellant and his desire to be a licenced participant in the industry with the industry’s reputation and preserving public interest, I put weight on the fact that this is the appellant’s third criminal conviction which resulted in him being placed for life on the Sex Offender Registry. I also put weight on the fact that all of the sexual assaults occurred while he was licenced, hence breaching his licence condition of acting with honesty, integrity and in compliance with the law.

44While I believe that the appellant is sincere in his remorse, he has not persuaded me that there are no reasonable grounds to believe that he will not act with honesty and integrity.

45I agree with the respondent that it is in the public interest to deny the appellant an owner’s licence under the Act.

CONDITIONS

46Neither party proposed conditions for my consideration and I don't believe that the application of conditions in the circumstances of this case would be effective. I considered that the appellant has been in the industry for 44 years and is passionate about his profession and relies upon it for income. However, given the nature of the appellant’s multiple convictions, and I find that there is no indication that conditions could sufficiently ensure that he acts with honesty and integrity and complies with the law. I further put weight on the fact that the appellant was licenced with conditions that were tailored to mitigate the same concerns in the past, and such conditions were unsuccessful.

CONCLUSION

47I find that there are reasonable grounds to believe that the appellant will not act with honesty, integrity and in compliance with the law.

48I agree with the respondent that the appellant is disentitled to licencing due to his past conduct.

49I do not find the appellant should be licenced with conditions.

ORDER

50Pursuant to s. 20(6) of the Act, I confirm the NOP and direct it be carried out by the Registrar.