Court of Appeal for Ontario
Date: 2017-11-01 Docket: C62986
Judges: MacFarland, Hourigan and Pardu JJ.A.
Between
Jeffrey Brooks and Bulletproof Enterprises Applicants (Appellants)
and
Ontario Racing Commission and Director of the Ontario Racing Commission Respondents (Respondents)
Counsel
David Moore and Kenneth Jones, for the appellants
Brendan van Niejenhuis and Benjamin Kates, for the respondents
Heard: October 24, 2017
On Appeal
On appeal from the order of the Divisional Court (Justice Harriet E. Sachs, Justice Elizabeth M. Stewart and Justice Laurence A. Pattillo), dated March 11, 2016 with reasons reported at 2016 ONSC 1136.
Reasons for Decision
Introduction
[1] The appellants, Bulletproof Enterprises ("Bulletproof") and its owner Jeffrey Brooks, appeal the Divisional Court's dismissal of their judicial review application. For the reasons that follow, we dismiss the appeal.
Facts
[2] The judicial review application was brought in relation to three decisions. First, the Director of the Ontario Racing Commission ("ORC") issued a Suspension and Freezing Order against Mr. Brooks on the basis that his brother, David Brooks, had been involved in running Bulletproof, despite having been suspended by the ORC (the "Freezing Order"). Second, the ORC dismissed the appellants' motion to quash or stay both the Freezing Order and the Notice of Proposed Order to Suspend Licences (the "Notice of Proposed Order") and dismissed the motion in the alternative for particulars (the "Procedural Decision"). Third, after a hearing before a panel of the ORC, the panel made findings of wrongdoing against the appellants and ordered forfeiture of the frozen accounts, ten year licence suspensions, and a fine of $400,000 (the "Merits Decision").
[3] The Divisional Court dismissed the application for judicial review. Justice Sachs, writing for the court, found that although the Director did not have jurisdiction to grant the Freezing Order, the granting of that order did not require the Merits Decision to be set aside because ultimately the panel had the power to seize the funds subject to the Freezing Order. She further found that both the Procedural Decision and Merits Decision were reasonable and the manner in which the proceedings were conducted did not breach the appellants' rights to natural justice.
Issues
[4] The appellants advance three grounds of appeal in this court:
The ORC's refusal to provide sufficient particulars amounted to a deprivation of notice and a breach of procedural fairness;
The panel's decision to allow Vice-Chair Donnelly to continue sitting as a hearing panel member after the expiration of his term of appointment resulted in the panel losing jurisdiction and the failure of the panel to permit the parties to make submissions on the issue was a breach of natural justice; and
The panel made unsupported factual findings, failed to address contradictory evidence, and its reasons were so inadequate that they amounted to a breach of procedural fairness.
Analysis
(a) Standard of Review
[5] Before turning to the issues, there is the question of the appropriate standard of review. When considering an allegation of a breach of procedural fairness or natural justice, no standard of review analysis is necessary. Rather, the court is only required to analyze whether the rules of procedural fairness or natural justice have been adhered to: see 1657575 Ontario Inc. v. Hamilton (City), 2008 ONCA 570, 92 O.R. (3d) 374, at para. 23. Thus the issues of the adequacy of the notice and the decision not to invite submissions with respect to the panel member's continuing tenure do not attract a standard of review.
[6] The appellants submit that the failure of the panel to provide adequate reasons is an issue of fairness and there is therefore no applicable standard of review. We do not agree with that submission. In our view, this argument has been conclusively answered by the Supreme Court of Canada in Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at para. 22:
It is true that the breach of a duty of procedural fairness is an error in law. Where there are no reasons in circumstances where they are required, there is nothing to review. But where, as here, there are reasons, there is no such breach. Any challenge to the reasoning/result of the decision should therefore be made within the reasonableness analysis.
[7] The adequacy of reasons is not a stand-alone basis for quashing a decision. The reasons must be read together with the outcome and assessed for whether the result falls within a range of possible outcomes. According to the Supreme Court, "if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met": see Newfoundland and Labrador Nurses' Union, at paras. 14, 16.
[8] The ORC has long been recognized as a tribunal with specialized expertise and its decisions are reviewed on a reasonableness standard: see Ontario Harness Racing Horse Association v. Ontario Racing Commission, 2012 ONSC 821, 290 O.A.C. 56, at para. 46. There are no issues raised that are of central importance to the legal system as a whole or that are outside the ORC's specialized area of expertise, such that a standard of correctness is warranted: see Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 60. Nor does any exceptional question of true jurisdiction arise: see Alberta Teachers Assn. v. Alberta (Information & Privacy Commissioner), 2011 SCC 61, [2011] 3 S.C.R. 654, at para. 33.
(b) Reasons
[9] We reject the submission that the panel made unsupported factual findings, failed to address contradictory evidence, and its reasons were so inadequate that they amounted to a breach of procedural fairness.
[10] In our view, the panel made reasonable factual findings available to it on the evidentiary record. In this regard, it is important to note that the appellants called no evidence at the hearing. Their objection to the reasons amounts to nothing more than an assertion that the panel should have drawn different inferences from the evidence given by the ORC's witnesses. We are not satisfied that the conclusions drawn by the panel from the evidence were unreasonable. Moreover, reasons need not reference every piece of contradictory evidence. We are satisfied that the reasons of the panel adequately explain the decision made and its underlying analysis.
[11] Here, the reasons allow this court to understand why the tribunal made its decision and the reasons together with the record enable this court to conclude that the outcome is within the range of acceptable outcomes.
(c) Notice
[12] With regard to the adequacy of notice, the appellants submit that the failure of the ORC to provide particulars of the allegation was in breach of the duty of fairness, as it prevented them from mounting a full defence. Specifically, they argue that they were not provided adequate particulars regarding the timing of the alleged misconduct. They also complain that the Notice of Proposed Order did not allege fraud but the panel ultimately found that they engaged in fraud.
[13] We do not accept this submission. The Divisional Court correctly held that the particulars in the Notice of Proposed Order constituted sufficient notice, such that the appellants understood the case they had to meet. The evidence led at the hearing related directly to the particulars contained in the Notice of Proposed Order. Moreover, the wrongdoing alleged in the Notice of Proposed Order was directly connected to the eventual findings of the panel at the merits hearing.
[14] With respect to the specific complaint regarding inadequate disclosure of the timing of the alleged misconduct, the time period in issue would have been clear to the appellants on receipt of the Notice of Proposed Order. The central allegation made by the ORC was that the appellants permitted David Brooks to be involved in Bulletproof's business despite the fact that he had not held a racing licence since the fall of 2007. It would have been plain from that allegation that the pertinent time period was from the fall of 2007 onward.
[15] With respect to the finding of fraud, while we agree that the ORC's language could be considered intemperate, there is nothing in this finding that should have taken the appellants by surprise. They knew that their honesty and integrity were at the forefront of the hearing; the Notice of Proposed Order expressly indicated that their honesty and integrity were in issue. They also knew that the central allegation against them was that they had surreptitiously permitted David Brooks to participate in their racing enterprise when he was not authorized to do so. The finding of fraud relates directly to that central allegation.
(d) Jurisdiction
[16] Next, the appellants submit that the panel lost jurisdiction since a member's appointment term expired before the hearing on the merits commenced.
[17] We disagree. In our view, this court's decision in Piller v. Assn. of Ontario Land Surveyors, 160 O.A.C. 333 is dispositive of that submission. Section 4.3 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 reads:
If the term of office of a member of a tribunal who has participated in a hearing expires before a decision is given, the term shall be deemed to continue, but only for the purpose of participating in the decision and for no other purpose.
Whether a "hearing" commences with preliminary motions, such that a member can be said to have "participated" is a question of statutory interpretation that is reviewable on a standard of reasonableness. The panel's conclusion that the member could continue to sit was not unreasonable given this court's jurisprudence in Piller.
[18] We find that there was no breach of natural justice by reason of the panel's failure to hear submissions on the issue. The duty of fairness is flexible and variable, and depends on the circumstances of the particular case: see Baker v. Minister of Citizenship and Immigration, [1999] 2 S.C.R. 817, at para. 22. In the present case, the terms of office of the panel members was a matter of public record. No complaint was made by any party regarding any panel member participating in the hearing. In these unique circumstances, where there was no objection, it was not a denial of natural justice to decline to invite submissions on the issue.
Disposition
[19] The appeal is dismissed. The appellants shall pay the costs of the appeal and the motion for leave to appeal to the respondent in the all-inclusive amount of $20,000.
"J. MacFarland J.A."
"C.W. Hourigan J.A."
"G. Pardu J.A."