COURT FILE NO.: 280/05
DATE: 20060206
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CUNNINGHAM A.C.J.S.C., MEEHAN AND EPSTEIN JJ.
B E T W E E N:
KEVIN AUSTIN
Applicant
- and -
ONTARIO RACING COMMISSION
Respondent
Douglas C. Gosbee, for the Applicant
Aaron Dantowitz, for the Respondent
HEARD: February 6, 2006
CUNNINGHAM A.C.J.S.C.: (Orally)
[1] The applicant is a driver, licensed by the Ontario Racing Commission, who was penalized for failing to provide a proper urine sample as part of the Commission’s random drug testing program.
[2] The decision of the Commission’s track judges was appealed to the Commission. After a full de novo hearing, the Commission concluded Austin had not provided a proper sample as had the judges below and imposed the same penalty, namely, (i) a fine of $1,500; (ii) a suspension for 120 days and (iii) probation with terms for two years.
[3] At the Commission hearing, oral evidence was called, including that of William Maertens, a track judge who, as the senior track judge had dealt with the matter at first instance. Prior to Maertens’ being called as a witness, the applicant objected saying his evidence was not only irrelevant, but that his testifying would create an apprehension of bias. After hearing argument, the administration was permitted to call Maertens, subject to certain restrictions.
[4] The principal issue argued before us was whether the calling of a judge below at the de novo hearing before the ORC panel constituted an action that would create a reasonable apprehension of bias. While after objections from counsel for the appellant, certain limits were imposed upon the evidence of the track judge, we conclude that the permission to call a judge of first instance, in this case, created that reasonable apprehension.
[5] Recognizing that the issue must be fact specific, we note that in the present case, there were full reasons from the track judge at first instance, reasons that were written by the very judge the panel permitted to testify. These full reasons dealt with the issues of liability and penalty. In any event, this was a hearing de novo. We cannot see any basis here that would have permitted the calling of one of the judges below. Perhaps there are circumstances why track judges may testify before the ORC but we cannot see any here. Even if the ORC panel said it did not rely on the impugned evidence, on the facts of this case, the track judge below should not have been called as a witness. Accordingly, the decision of the ORC panel is quashed.
[6] While it may be open to the administration to re-hear this matter, we simply point out there are problems. It appears that the proper protocol may not have been followed as it relates to the issue of direct observation and reporting.
[7] The application is allowed and the decision of the ORC panel is quashed. Costs to the applicant fixed, all in at $9,000.00.
CUNNINGHAM A.C.J.S.C.
MEEHAN J.
EPSTEIN J.
Date of Reasons for Judgment: February 6, 2006
Date of Release: February 9, 2006
COURT FILE NO.: 280/05
DATE: 20060206
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CUNNINGHAM A.C.J.S.C., MEEHAN AND EPSTEIN JJ.
B E T W E E N:
KEVIN AUSTIN
Applicant
- and -
ONTARIO RACING COMMISSION
Respondent
ORAL REASONS FOR JUDGMENT
CUNNINGHAM A.C.J.S.C.
Date of Reasons for Judgment: February 6, 2006
Date of Release: February 9, 2006