COURT FILE NO.: 135/08 & 136/08

DATE: 20080926

SUPERIOR COURT OF JUSTICE - ONTARIO

(DIVISIONAL COURT)

RE: kelly lester & Robert zubkoff v. the Ontario racing commission

BEFORE: Justices Ferrier, Whalen, and Bellamy

COUNSEL: J. Thomas Curry & Emily McKerman, for the applicants

Aaron Dantowitz, for the respondent

HEARD AT TORONTO: September 26, 2008

E N D O R S E M E N T

Whalen J.

[1] The Applicants seek judicial review of the order of the Ontario Racing Commission (“ORC”) dated March 6, 2008, wherein the ORC decided that the Applicants (“Zubkoff” and “Lester” respectively) had breached Rules of Standardbred Racing 1.09, 6.20 and, in the case of Lester, also Rule 26.02.01. In the result, the ORC suspended each of the Applicants for one year and imposed fines of $2,500.00 on Zubkoff and $5,000.00 on Lester. Lester’s higher fine was because she was also found to have breached Rule 26.02.01.

[2] For the reasons following, the application is dismissed.

[3] The findings and penalties were the result of a de novo hearing by way of appeal from similar orders of a panel of ORC track judges at Mohawk Raceway following a hearing on December 14, 2007. The Applicants were present at the initial hearing where they were represented by experienced counsel. Neither applicant testified.

[4] At the March 2008 hearing, the ORC (“the Administration”) called five witnesses and presented documentary evidence at the March 2008 appeal proceeding. The Applicants had been given appropriate notice of the hearing and disclosure as required by the ORC’s rules of procedure. They were represented by counsel who cross-examined Administration witnesses and presented limited evidence in the course of cross-examination, some of which is a basis for this appeal. The Applicants did not testify or call other witnesses in their defence. Their counsel cross-examined throughout and made submissions at the conclusion of the hearing.

[5] The Applicants ask that the March 6, 2008 order be set aside and the allegations dismissed, or alternatively that a new hearing be ordered. In the further alternative, they ask this court to set aside or vary the penalties imposed.

[6] The factual basis of the allegations was that the Applicants had engaged in “tubing” two horses. “Tubing” is the practice of passing a nasal gastric tube through the nose of the horse into its stomach. It may be a legitimate practice when employed by a veterinarian to treat various conditions, although it should be done with appropriate training and care because it can injure the horse’s nose, throat, blood vessels, stomach and lungs. It may even endanger the horse’s life. In the racing context, it has been used in a prohibited practice known as “milkshaking”, where an alkalising agent is introduced into the animal’s stomach shortly before a race in order to improve its athletic performance.

[7] It is not disputed that the appropriate standard of review is reasonableness, as articulated in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9. In other words, the ORC is to be accorded considerable deference by an appeal court because of its broad mandate and expertise in regulating and maintaining the integrity of standardbred racing in Ontario. This level of deference is also accorded ORC decisions on penalty: Friedman v. Ontario Racing Commission, [2008] O.J. No. 1706, at para. 16 (Div.Ct.); Gray v. Ontario Racing Commission, [2008] O.J. No. 1235 at para. 3 (Div.Ct.).

[8] The standard of review does not come into play where there has been a denial of procedural fairness – i.e. a denial of natural justice: Kalin v. Ontario College of Teachers, 2005 ONSCDC 18286, [2005] O.J. No. 2097 (Div.Ct.); Robinson v. Ontario Racing Commission, [2004] O.J. No. 1591 (Div. Ct.). In such circumstances, the tribunal would have acted outside its jurisdiction. The Applicants submitted that they had been denied natural justice.

[9] One basis for this position was that the ORC had never previously given specific direction to the industry that “tubing” was an unacceptable practice, so that the Applicants could not have known they would be penalized if they ran afoul of it. Liability had been based on general “basket” type provisions:

Rule 1.09

If any case occurs which is not or which is alleged not to be provided for by the rules, it shall be determined by the judges or the Commission as the case may be, in such manner as they think is in the best interest of racing. Provided however, the Commission in its absolute discretion may waive the breach of any of the rules, which waiver or breach the Commission does not consider prejudicial to the best interests of racing.

Rule 6.20

A participant shall be guilty of a violation of the rules:

(a) for any misconduct which is injurious to racing although not specified in these rules;

(b) for any misconduct prejudicial to the best interests of racing; or

(c) for committing or attempting to commit any other act injurious to racing.

[10] We do not agree with this submission. Such “basket” provisions are not unusual, for example in the regulation of self-governing professional bodies. The Respondent cited the example of the Law Society of Upper Canada and Rule 1.02 of its Rules of Professional Conduct.

[11] We also find that there was ample uncontradicted evidence before the panel to permit it to conclude that it was well known within the racing industry that tubing on the day of a race was bad conduct. “Milkshaking” was a similarly well-established and well-known form of misconduct within the industry, and it could be administered by tubing.

[12] There was also ample direct and circumstantial evidence for the panel to find: that Zubkoff had engaged in tubing two horses shortly before races on separate occasions; that Lester had participated in tubing one of them, and; that Lester was the trainer of record for both horses on those occasions and, therefore, had breached her obligations as a trainer. There was uncontradicted evidence that tubing a horse shortly before a race would only be done to enhance its chances of racing success, and that tubing under such circumstances could so endanger the animal’s physical well-being or life that it would not be in the horse’s best interests to participate in a race. If a horse had been tubed for appropriate treatment reasons, it would not likely have been in any condition to race that day.

[13] The Applicants argued against the inferences and conclusions that the panel had drawn from the testimony of the Administration’s witnesses, submitting that there were shortcomings and inconsistencies. In our view there was sufficient evidence to support the panel’s conclusions in respect of these witnesses. Furthermore, the Applicants had the opportunity to lead their own evidence for purposes of rebutting the testimony and other evidence presented against them, but they did not do so.

[14] The point is that there was clear and convincing evidence on the basis of all the testimony led and documents filed to support the conclusion that the Applicants had engaged in a practice long recognized by the general racing industry as unacceptable and intended to enhance chances of success. As the panel pointed out, such practices were injurious to racing and against the best interests of the racing industry because they promote unfairness in competition. Also, if the wagering public believed, or if it appeared that such practices were extant and uncontrolled, the public would lose confidence in racing and turn its attention to competing forms of entertainment.

[15] One of the Administration's witnesses, Mr. Maertens (“Maertens”), testified that Lester was the trainer of record of both horses on the dates in question. In its reasons, the panel indicated that exhibit 7 established that Lester was the trainer of record for “Tivoli Park.” In fact, the document did not reflect either that she was or was not the trainer of record on the date in question. However, it was not unreasonable for the panel to accept Maertens’ testimony in this respect, given his direct involvement at the time in the operation of the raceway and in the investigation. Again, the Applicants did not rebut or challenge this evidence by evidence of their own.

[16] The Applicants submitted that the panel had committed an error in law by ultimately refusing to permit several photographs purportedly taken by Zubkoff to be admitted into evidence and referred to in submissions. The photos were of the barn where the alleged tubing had taken place. Applicants’ counsel had produced them in the course of the Administration’s case, and Administration’s counsel objected because there was no witness to authenticate them. Ultimately, it was agreed that the photos could be entered in evidence subject to Zubkoff confirming their authenticity in testimony, and with the Administration then having opportunity to cross-examine him.

[17] Applicants’ counsel presented the photographs to some of the witnesses who had testified to observing incidents of tubing, and they identified the barn and general location where it had occurred in the photos. Counsel intended to use the photographs to challenge these witnesses about their ability to observe what they had alleged, because they were too far away or lighting or other conditions were not conducive. However, when the Administration’s case ended, Applicants’ counsel informed the panel that he would not be calling Zubkoff to prove the photographs as previously agreed, and therefore Zubkoff would not be subject to cross-examination generally or in respect of the photographs. Accordingly, the Administration objected to the photos being admitted into evidence, relying on the agreement that Zubkoff prove their authenticity through testimony. Applicants’ counsel acknowledged the prior agreement and consented to their withdrawal, but he urged that he be able to refer to them in his submissions because the witnesses had identified them. The panel upheld the objection and the photographs were removed from evidence. The panel also ruled that they could not be referred to in submissions.

[18] The Applicants take the position that the panel’s ruling was wrong in law and amounted to a denial of procedural fairness. They submitted it was sufficient to have identified the photographs through the Administration’s witnesses, and that the photos were therefore relevant and admissible. We agree that this ruling was wrong in law. However, a meaningful injustice did not result. The witnesses to the alleged tubing, who were shown the pictures, identified the barn and general area in issue; but they did not agree that the lighting conditions, distances and angles depicted were consistent with their vantage points or with what they had observed. In short, the photographs would not have assisted the Applicants meaningfully, even if admitted.

[21] The Applicants submitted that the application was not a true hearing de novo because of the testimony of Maertens who had been one of the track judges who originally ruled on the very issue under appeal. The Applicants do not take the position that it is always inappropriate for track judges to testify on a de novo hearing, as has been determined in: Austin v. Ontario Racing Commission, 2007 ONCA 587, para. 39. Here, the Applicants note that Maertens gave evidence on a de novo hearing concerning the reasons for the findings of the original three track judges, including the penalty. The Applicants submit that this tainted the process, so that it was not truly a fresh determination. We do not agree. As in Austin, the panel's extensive reasons do not suggest that the evidence of Maertens was misused or given undue weight. Furthermore, as in Austin, while some of the evidence with respect to penalty was of questionable relevance, it does not on its own provide for interference by this court. Finally, we note that Applicants' counsel did not object to the testimony and was permitted unrestricted cross-examination of Maertens. The panel heard evidence sufficient to reach its conclusions, and it did so without improper reliance on anything heard or found by the tribunal of first instance.

[22] Finally, we find nothing unreasonable in the penalties imposed. It is clear from the panel’s reasons that the underlying principles applied were deterrence and denunciation. Because of its expertise and unique experience in the racing industry, this court must give considerable deference to the panel in the area of penalty. The ORC is uniquely aware of the gravity of the misconduct and the potential consequences to the industry. It is equally aware of the effect of the penalties imposed on the Applicants. The fine imposed on Lester was appropriately higher than that for Zubkoff, because she had offended the regulated responsibilities of a trainer.

[23] The unique aspect of this case is that it is the first time a penalty has been imposed for the particular misconduct. The fact that it is a “first” does not make the penalty unjust or unconsidered. The ORC is in the best position to make this assessment and to balance the effect of penalty on the Applicants as well as the industry.

[24] Although the panel did not discuss mitigating factors, we are not convinced in the circumstances that the penalties imposed were out of line with those for other serious misconduct. The panel is not a court of criminal jurisdiction. Nevertheless, it adequately explained the gravity of the misconduct and the applicable principles to be applied. Overall, the ORC’s reasons were full, careful and complete.

[25] Costs to the ORC in the agreed amount of $7,500.

Ferrier J.

Whalen J.

Bellamy J.

Date heard: September 26, 2008

Date released: