CITATION: Austin v. Ontario Racing Commission, 2007 ONCA 587
DATE: 20070830
DOCKET: C45788
COURT OF APPEAL FOR ONTARIO
ROSENBERG, ROULEAU JJ.A. and KILLEEN J. (ad hoc)
BETWEEN:
KEVIN AUSTIN
Applicant (Respondent)
and
ONTARIO RACING COMMISSION
Respondent (Appellant)
Brendan Van Niejenhuis and Patricia M. Latimer for the appellant
Douglas Gosbee for the respondent
Heard: May 29, 2007
On appeal from the order of the Divisional Court (Cunningham A.C.J.S.C., Meehan and Epstein JJ.) dated February 6, 2006 allowing an application for judicial review and quashing the decision of the Ontario Racing Commission dated July 6, 2005.
ROULEAU J.A.:
OVERVIEW
[1] This appeal concerns whether a reasonable apprehension of bias is created when, on an appeal by way of hearing de novo from the decision of an administrative discipline hearing, the appeal tribunal allows a judge who was a member of the panel that heard the matter at first instance to testify.
[2] In a ruling dated December 14, 2004, a panel of track judges found the respondent Kevin Austin guilty of having provided an improper (cold) urine sample. He was fined $1,500, suspended for 120 days, and placed on probation for two years.
[3] Following this initial hearing, Austin appealed by way of a hearing de novo before the appellant Ontario Racing Commission (the “Commission”). A panel of three commissioners (the “Commission Panel”) was struck to hear the matter. At the hearing, William Maertens, the senior track judge who chaired the panel of track judges whose decision was under appeal, was called as a witness and testified. On July 6, 2005, the Commission Panel issued its ruling, denying the appeal and upholding the sanctions against Austin.
[4] Upon judicial review the Divisional Court found, in brief reasons delivered orally, that the Commission Panel created a reasonable apprehension of bias by allowing a member of the panel of track judges whose decision was under appeal to testify at the de novo hearing.
[5] The appellant appeals the Divisional Court’s judgment to this court. The Commission argues that track judges regularly testify at Commission hearings and the Divisional Court erred in finding that this created a reasonable apprehension of bias. Austin argues that the Divisional Court was correct in concluding that a reasonable apprehension of bias was created when Maertens was allowed to testify at the hearing.
[6] For reasons that follow, I would allow the appeal and remit the case to the Divisional Court for a new hearing.
FACTS
[7] Horseracing in Ontario is a highly regulated activity. The Racing Commission Act, 2000, S.O. 2000, c. 20 (the “R.C.A.”) is the governing statute. It gives the Commission broad regulatory power as well as the power to make rules and delegate much of its enforcement power to onsite officials, such as track judges. Among these delegated powers is the power to hold hearings.
[8] Kevin Austin is a licensed driver, trainer, and owner of standardbred racehorses. On November 2, 2004, Austin was racing horses at Kawartha Downs Raceway and was advised to present himself at the raceway for urine testing that day. The Commission has a urine testing program to test for marijuana and cocaine use among drivers. Austin was on probation for an earlier offence in February 2004 and was required to submit for urine testing. Investigator John McEachern attended at the raceway to administer the urine tests.
[9] A 3:18 p.m., McEachern asked Austin to provide a sample. McEachern repeated this request at 3:24 p.m. and 3:26 p.m. Austin eventually provided a sample to McEachern after the sixth race, at around 6:30 p.m. This sample had several problems. Not only did the temperature register less than the required 90 degrees Fahrenheit, but the sample was less than the required 30 millilitres. McEachern notified Austin of these deficiencies and asked him to return later to provide another sample. The track judges at Kawartha Downs that day were Jeff Minler, William Maertens, and Wes Coke. McEachern explained to the track judges that he had received a cold sample from Austin, had thrown it out, and was waiting for another sample.
[10] Austin returned to McEachern after the ninth race and declared that he was unable to produce a sample at that time. He told McEachern that he would return later that evening with a sample. Later, Austin went with McEachern to buy some water. Austin drank some of the water and provided another urine sample. Although there was a sufficient quantity of urine, this sample was only 88 degrees Fahrenheit. Of all the drivers tested that day, only Austin’s sample was below the threshold temperature. McEachern informed the track judges that he had received another cold sample from Austin but that this time he had sealed and preserved the sample. McEachern agreed to contact the Commission’s head office the following day regarding this matter.
[11] On November 3, 2004, Austin was suspended indefinitely until he provided the Commission with a “clean and proper sample”. On November 9, 2004, Austin supplied the Commission with a clean sample. As a result, the suspension was lifted and Austin was permitted to enter horses provided he appear before the track judges at Kawartha Downs in advance of any race.
[12] The track judges at Kawartha Downs received a report from McEachern dated November 5, 2004, which outlined the problems he had encountered in obtaining a sample from Austin on November 2. Upon reviewing the report, the track judges were concerned that Austin may have provided fraudulent samples.
[13] Section 5 of the R.C.A. mandates the Commission “to govern, direct, control and regulate horse racing in Ontario in any or all of its forms.” Given the nature of the industry, much of the power to regulate and govern the conduct of racing and its participants is delegated to track judges who are onsite officials. This delegated power includes the responsibility to perform certain investigative and adjudicative functions. According to r. 6.28 of the Rules of Standardbred Racing, 2003, track judges may
interrogate any licensee and may require him/her to make statutory declarations or statements in writing and provide documentary evidence of any agreements or transactions, financial or otherwise, respecting to any suspected crime or violation of these rules, the Act, or any matter which, in the opinion of the Judges, the Director of Racing, or his/her authorized representative, is not in the best interest of racing.
[14] Based on McEachern’s report, the track judges decided that there may be sufficient evidence to warrant charges of Austin having violated Commission rules 6.05, 6.20(a)(b)(c), and 6.38(f). The Commission’s rules provide that the track judges are responsible for holding the hearing, deciding whether a rule has been violated, and imposing a penalty. The track judges determined that a hearing would be necessary to deal with the charges.
[15] Austin appeared before the track judges at Kawartha Downs on November 23, 2004, at 6:40 p.m. The charges were explained and Austin enquired into the possible consequences of these charges. He was told that, if proven, the charges could lead to very serious consequences, but nothing more could be determined until there was a hearing. A hearing date was scheduled for December 9, 2004, at Kawartha Downs at 1:00 p.m. Austin was given a copy of the notice of hearing and full disclosure.
[16] The hearing was held on December 9, 2004, where Austin appeared before Kawartha Downs track judges Maertens (senior judge), Al Caughley, and Tom Miller. The purpose of the hearing was to “deal with charges of violations of ORC rules 6.05, 6.20(a)(b)(c) and 6.38(f) arising from Kevin Austin allegedly providing cold and possible fraudulent or improper human urine samples; samples that were deemed unacceptable for testing, at Kawartha Downs on November 2, 2004.” The track judges conducted the hearing. Austin was in attendance as well as his representative. McEachern was the only witness called by the track judges and Austin testified on his own behalf.
[17] After hearing submissions from Austin’s representative, the track judges retired to deliberate. They later returned with their decision, finding that Austin had violated various Commission rules. Austin’s representative then spoke to penalty. Several days later, on December 14, 2004, the track judges issued their ruling on penalty. Austin was fined $1,500, suspended for 120 days, and placed on probation for two years.
[18] On December 20, 2004, Maertens wrote to the supervisor of Standardbred Racing summarizing the investigation and the hearing. In this letter he explained how the track judges came to their decision on the breaches and on penalty.
[19] According to s. 11(7) of the R.C.A., where a person considers himself to be aggrieved by a decision made by a person exercising a power delegated by the Commission, that person is entitled to a hearing de novo by the Commission at which the Commission may exercise its powers and duties “as if it had not delegated them.” See also McNamara v. Ontario (Racing Commission) (1998), 1998 7144 (ON CA), 111 O.A.C. 375.
[20] Austin filed an appeal pursuant to s. 11(7) of the R.C.A. It was heard de novo before a panel of the Commission’s Commissioners. The Commission Panel consisted of Chair Lynda Tanaka and Commissioners Bernard Brennan, and George Kelly. Both the Commission’s Administration and Austin were represented at the hearing.
[21] The Commission Panel heard from Kristin Ferris, McEachern, Maertens, and Austin.
[22] Ferris was an expert qualified to give evidence in the interpretation and analysis of human urine samples. She testified that the Commission took urine samples in accordance with standard procedures used in Canada and the United States. While she had seen samples with a temperature below the allowed range, she knew of no reason for the temperature being lower than the range other that it being an adulterated or substituted sample. The Commission Panel accepted her evidence and wrote that “it is standard practice in both Canada and the United States that urine provided by humans for the purposes of a drug testing program should register a temperature between 90 degrees and 100 degrees Fahrenheit when measured within 4 minutes of exiting the body in order to constitute a proper sample for the purposes of being tested.”
[23] McEachern recounted his version of the events of November 2, 2004.
[24] Maertens, the senior judge who led the panel of track judges in the first instance, was called as a witness by the Administration. Counsel for Austin objected to Maertens being called, arguing that Maertens had no relevant evidence to give. Further, having been the previous trier of fact, calling him as a witness at the de novo appeal would create a reasonable apprehension of bias.
[25] After hearing submissions from Austin and the Administration, the Commission Panel ruled that Maertens could be called as a witness for certain limited purposes. The Commission Panel noted that it was quite common to have track judges testify at such hearings. Although Maertens had acted as a trier of fact, he had relevant evidence to give at the hearing.
[26] First, since he was one of the Kawartha Downs track judges on November 2 he had been a participant in and had knowledge of the events that were the subject of the charges against Austin. As well, he could testify as to the steps that were taken after November 2 up to and including the hearing by the track judges on December 9.
[27] Second, Maertens could testify as to what he was told by Austin in the course of the investigation and at the December 9 hearing. The Commission Panel felt that it was fairer to Austin to have this evidence led as part of the Administration’s case. In this way Austin would know all of his statements that the Administration was relying on before having to testify and present his defence. Austin would therefore be in a position to comment on or rebut the statements rather than hearing them for the first time in reply.
[28] Finally, the Commission Panel recognized that hearing evidence from Maertens on the appropriate penalty would, in ideal circumstances, be better left until after they had reached their decision on liability. They decided, however, that this would be disruptive and more costly to the parties as it would require reconvening the panel for a second hearing assuming that they were to find that rules had been breached. The Commission Panel therefore ruled that it would receive evidence from Maertens on penalty at the same time as his other testimony. It would, however, only use this portion of the evidence if and when they reached the penalty stage.
[29] In light of this ruling, the Chair of the panel instructed counsel for the Administration to limit Maertens’ evidence to those areas. The hearing proceeded on that basis.
[30] Austin then testified. He acknowledged there was a three-hour gap between the time he was initially asked to provide a sample and when he first went to McEachern for the test. He denied altering his urine sample. The only explanations for the low temperature of his urine samples were that the drivers’ room was unusually cold and that he was wearing only his driver’s suit over his underwear. There was, however, no dispute as to the room being heated and that no other driver had a sample with a low temperature reading.
[31] By order dated July 6, 2005, the Commission Panel dismissed the appeal and upheld the sanctions against Austin.
[32] Upon judicial review, the Divisional Court found that the Commission Panel had created a reasonable apprehension of bias by receiving testimony from one of the judges who had heard the matter in first instance. The Divisional Court did not consider whether it mattered that the appeal was de novo. As Maertens had delivered “full reasons”, the Divisional Court could not see any basis for permitting him to testify at the hearing.
[33] The Commission appeals the Divisional Court’s judgment to this court.
ISSUE
[34] The issue in this appeal is whether the decision of the Commission Panel to allow Maertens, one of the panel of judges at first instance, to testify gives rise to a reasonable apprehension of bias.
DISCUSSION
[35] When considering an allegation of bias or reasonable apprehension of bias, one starts from the premise that absent evidence to the contrary a tribunal is presumed to be fair and impartial. The test to be applied when considering an allegation of reasonable apprehension of bias was set out by the Supreme Court of Canada in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369 at 394, and recently restated in Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259 at para. 60:
[T]he apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would [that informed person] think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”
[36] In applying the test, the focus is on the individual decision maker. As stated by the British Columbia Court of Appeal in Bennett v. British Columbia (Securities Commission) (1992), 1992 1527 (BC CA), 69 B.C.L.R. (2d) 171 at 181 (B.C. C.A.), “we wish to add one further observation and that is as to the target of a bias allegation. Bias is an attitude in mind unique to an individual. An allegation of bias must be directed against a particular individual alleged, because of the circumstances, to be unable to bring an impartial mind to bear.” In the present case, the individuals we are concerned with are the members of the Commission hearing the de novo appeal, not Maertens, the track judge who testified.
[37] Determining whether a reasonable apprehension of bias exists is highly dependent on the factual circumstances. This is particularly true with respect to administrative tribunals which are based on unique statutory schemes and normative contexts. It is assessed by taking into account the statutory regime that exists as well as all of the facts and circumstances surrounding the hearing and the individuals making up the panel.
[38] Austin argues that because Maertens was one of the track judges who originally ruled on the very issue the Commission Panel was now seized with de novo, a reasonable apprehension of bias was created when the Commission Panel allowed him to testify. In my view, this in and of itself is not sufficient. There was no suggestion that some special relationship existed between Maertens and the tribunal such that the tribunal might give greater weight to his evidence than the evidence of other witnesses. In any event, on the facts of this case, Maertens’ credibility was not in issue. His evidence was neither challenged nor contradicted.
[39] Austin acknowledged that track judges are regularly called upon to testify at these hearings. They are onsite officials and can provide evidence concerning events relevant to the proceedings. Austin, however, seeks to make a distinction between testimony concerning a track judge’s direct involvement in the investigation of the incident, and testimony respecting the track judge’s role as an adjudicator. On the basis of this distinction, Maertens’ evidence respecting his exchanges with the investigator on the day of the incident may be proper but not his evidence concerning what occurred at the hearing which is the subject of the appeal.
[40] Even if such a distinction were appropriate, it immediately becomes obvious that the concern is not the fact that the track judge was allowed to testify, but the correctness of the Commission Panel’s ruling concerning the breadth of the testimony to be given. It is the ruling, therefore, that needs to be examined.
[41] The Divisional Court reasoned that because Maertens provided full reasons there was no basis for the Commission Panel’s ruling which allowed Maertens’ to testify. The Divisional Court concluded that by ruling that Maertens could testify, the Commission Panel created a reasonable apprehension of bias. With respect, I disagree. First, the December 20, 2004, letter written by Maertens did not constitute reasons in the traditional sense. Although it provided an explanation of why the track judges concluded that Austin breached the rules and it set out the reasons for selecting the penalty imposed, the letter also outlined the sequence of events starting on the day of the alleged breach and ending with the hearing itself. It set out the involvement of the track judges and related some of the statements given by Austin both in the course of the investigation and at the December 9 hearing. Second, absent Maertens testifying at the de novo hearing, the factual information contained in this letter would be hearsay that could not be cross-examined upon and may well have been given limited weight by the Commission Panel. Because the Commission Panel was hearing the case de novo, the “findings of fact” made by the track judges did not carry the same legal significance that findings of fact normally carry in appeals. Finally, because there was no transcript of the proceedings before the track judges, one of the track judges would have to testify as to admissions made by Austin in that proceeding.
[42] Maertens had relevant evidence to give. If the tribunal erred and allowed him to give evidence which was irrelevant and not probative, such an error may be reviewable on some basis. It would not, absent more, give rise to a reasonable apprehension of bias.
[43] The Commission Panel’s ruling could give rise to an apprehension of bias if, for example, it disclosed the existence of some preconceived views as to the merits or indicated that the track judge’s evidence was to be given greater weight. In my view, however, the Commission Panel’s ruling gives rise to no such concerns. It did not reveal any preconceived view and, given that the track judge’s credibility was not put into issue, there could be no concern regarding the weight that it would be given.
[44] The record reveals that the Commission Panel heard Austin’s objection to the track judge being called. In its ruling, the Commission Panel explained the basis for allowing the track judge to testify and set out the three areas on which the track judge could give relevant evidence. In the course of the track judge’s testimony, the Commission Panel then sought to restrict him to those areas. Austin was given a broad right to cross-examine the track judge. In my view, the reasons given by the Commission Panel for allowing the track judge to testify provide no basis for a finding of reasonable apprehension of bias.
[45] Given the nature of the proceedings, the Commission Panel should be given broad discretion on the scope of evidence that can be presented. The Commission Panel’s reasons do not suggest that the evidence of Maertens has been misused or given undue weight. In my view, while some of the testimony given by Maertens respecting the penalty was of questionable relevance, it does not by itself provide a basis for intervention by the courts.
[46] One can well understand Austin’s concern that Maertens is, to some extent, in a conflict of interest. By testifying before the Commission Panel Maertens would have been likely to justify both the decision made and the penalty imposed by the panel of track judges. This, however, would be obvious to the Commission Panel hearing the de novo appeal. The track judges’ views were contained in Maertens’ December 20, 2004, letter to the supervisor of Standardbred Racing explaining the reasons for the track judges’ decision. The Commission Panel would expect Maertens to stand behind and seek to justify that decision. All of this would have been taken into account by the Commission Panel when assessing Maertens’ evidence. It does not provide a realistic basis for concluding that the Commission Panel would, consciously or unconsciously, not decide the issue fairly.
CONCLUSION
[47] For these reasons, I would allow the appeal. The Divisional Court’s decision dealt only with the issue of reasonable apprehension of bias and did not otherwise address the merits of Austin’s judicial review application. I would, therefore, remit the matter back to the Divisional Court for a new hearing. I would award the appellant costs fixed at $5,000 inclusive of GST and disbursements.
RELEASED:
“MR” “ Paul Rouleau J.A.”
“AUG 30 2007” “I agree M. Rosenberg J.A.”
“I agree Gordon Killen”