Court File and Parties

CITATION: Gale v. Ontario Racing Commission, 2009 ONCA 92

DATE: 20090202

DOCKET: C48487

COURT OF APPEAL FOR ONTARIO

Gillese, MacFarland and LaForme JJ.A.

BETWEEN:

Jason Gale

Plaintiff (Appellant)

and

Ontario Racing Commission and John McEachern

Defendants (Respondents)

Craig Allen, for the appellant

Brendan Van Niejenhuis, for the respondents

Heard: January 26, 2009

On appeal from the order of Justice John H. Brockenshire of the Superior Court of Justice, dated February 4, 2008.

Reasons for Decision

By the Court:

[1] Jason Gale, the appellant, is a licensed standardbred driver. The Ontario Racing Commission (the “ORC”) is the body established under the Racing Commission Act, 2000, S.O. 2000, c. 20, to govern, direct, control and regulate horse-racing in the province of Ontario.

[2] On March 30, 2005, John McEachern, an ORC investigator, asked Mr. Gale to provide a urine sample. Mr. Gale was unable to do so. Mr. McEachern viewed the matter as Mr. Gale having refused to provide a sample. He also viewed Mr. Gale as having spoken to him, using insulting or abusive language.

[3] Based on these events, Inspector McEachern charged Mr. Gale with having violated certain of the Rules of Standardbred Racing. Mr. Gale attended a hearing before three race-track judges who found that he had violated the rules in question. He was fined $1500 and suspended for 15 days.

[4] Mr. Gale appealed to a full panel of the ORC. After a full hearing de novo, the ORC upheld the decisions of the race-track judges but reduced the fine from $1500 to $500.

[5] Mr. Gale brought an application for judicial review in which he sought to have the ORC decision set aside. The Divisional Court dismissed the application, finding the ORC’s decision was reasonable as “[t]here was ample evidence upon which the Commission could come to the decision it did.”

[6] In the present action against the ORC and Mr. McEachern, Mr. Gale seeks damages for negligence, negligent investigation, breach of statutory and/or regulatory duties, and intentional infliction of emotional distress. He alleges that in similar situations, the ORC and/or its investigators have allowed standardbred drivers who fail to provide a urine sample with an opportunity to provide a sample at a later time without charge, suspension or penalty. He contends that the charges against him were laid as punishment for the disrespectful comments that he had allegedly made to Inspector McEachern on the day in question.

[7] The respondents moved for summary judgment. In granting the motion, Brockenshire J. found that the ORC had dealt with the issues raised in the present action. He held that the action was barred by issue estoppel and the doctrine of abuse of process.

[8] Mr. Gale appeals to this court, asking that the order below be set aside.

[9] As we see no error in the decision below, we would dismiss the appeal.

[10] The ORC held a full de novo hearing at which the appellant appeared, testified and was represented by counsel. The issues which the appellant seeks to litigate are the same issues he raised in defence in the ORC proceedings and on which the ORC ruled. The motion judge was aware of the differences between the ORC proceedings and the litigation process, stating that if the proceedings before the ORC had been limited strictly to Mr. Gale’s conduct, it might have been open to him to launch a civil proceeding dealing with the conduct of the inspector. However, the motion judge found that the defence that Mr. Gale mounted initially, and again on appeal to the ORC, turned largely on the allegations that the inspector had acted improperly by not granting him the right to give a sample on some future date, as he allegedly had done for other drivers. Additionally, there was evidence and argument that the inspector had laid the charges against Mr. Gale as punishment for the comments that Mr. Gale had allegedly made to the inspector earlier on the day in question.

[11] In short, the motion judge found that the question of the inspector’s good faith and the propriety of his actions had been ruled on in the proceedings before the ORC. On the record, it was fully open to the motion judge to make those findings.

[12] In the circumstances, we agree with the motion judge that to permit the action to proceed is an abuse of process. The doctrine of abuse of process is predicated on the notion that litigation ought not be permitted to proceed where it would violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice: see Toronto (City) v. C.U.P.E. Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 at para. 37. The same issues raised by the appellant in defence at the ORC proceedings would have to be relitigated. And, in order to succeed in the action, the appellant would have to displace the determinations made by the ORC and upheld by the Divisional Court. To permit the action to proceed would violate the principles identified in Toronto v. C.U.P.E..

[13] To the extent it is argued that the motion judge erred in failing to exercise his residual discretion to allow the action to proceed, we see no basis on which to interfere with the exercise of that discretion.

[14] Accordingly, the appeal is dismissed with costs to the respondent fixed at $1,000, all inclusive.

RELEASED: February 2, 2009 (“E.E.G.”)

“E.E. Gillese J.A.”

“J. MacFarland J.A.”

“H.S. LaForme J.A.”