Ballinger v. Registrar of Alcohol, Gaming and Racing et al.

[Indexed as: Ballinger v. Ontario (Registrar of Alcohol, Gaming and Racing)]

Ontario Reports

Ontario Superior Court of Justice

Divisional Court, Sachs, Corbett and Edwards JJ.

April 25, 2019

147 O.R. (3d) 651 | 2019 ONSC 2557

Case Summary

Administrative law — Boards and tribunals — Jurisdiction — Horse Racing Licence Act providing that decision of Registrar of Alcohol, Gaming and Racing could only be appealed to Horse Racing Appeal Panel if decision was made under rules of racing — Panel finding that it did not have jurisdiction to hear appeal from Registrar's decision rescinding applicant's approval as Official Veterinarian for racetracks as that decision was not made under rules of racing — Panel's decision being unreasonable — Rule 24.01 of Rules of Standardbred Racing constituting "rule of racing" and providing that any person aggrieved by decision of Registrar could appeal decision to Panel — Horse Racing Licence Act, 2015, S.O. 2015, c. 38, Sch. 9.

The Registrar of Alcohol, Gaming and Racing rescinded the applicant's approval as an Official Veterinarian for racetracks. The applicant appealed that decision to the Horse Racing Appeal Panel and applied for a stay of the decision. The Panel denied the application for a stay on the basis that it had no jurisdiction to hear the appeal, as the Horse Racing Licence Act, 2015, S.O. 2015, c. 38, Sch. 9 provides that a decision of the Registrar can only be appealed to the Panel if the decision was made under the rules of racing, and the Registrar's decision was made under s. 2 of the Act and not under the rules of racing. The applicant applied for judicial review of that decision.

Held, the application should be allowed.

The panel's decision was unreasonable. It did not deal with rule 24.01 of the Rules of Standardbred Racing, 2016, which provides that any person aggrieved by a decision of the registrar may appeal the decision to the panel. Rule 24.01 is a "rule of racing", and it provides for a right of appeal to the panel.

Cases referred to

Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, [2011] 3 S.C.R. 654, [2011] S.C.J. No. 61, 2011 SCC 61; Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9 [page652]

Statutes referred to

Horse Racing Licence Act, 2015, S.O. 2015, c. 38, Sch. 9, ss. 2, 8(1), 20

Rules and regulations referred to

Rules of Standardbred Racing 2016, rules 8.01.02, 8.12, 24.01

APPLICATION for judicial review of decision of the Horse Racing Appeal Panel.

Philip White and Jason K. Wong, for applicant.

Faye Kidman and Angela Holland, for respondents.

The judgment of the court was delivered by

SACHS J.: —

Introduction

[1] The applicant, Dr. Julie Ballinger, was approved as an Official Veterinarian ("OV"), which the Alcohol and Gaming Commission of Ontario ("AGCO") requires race tracks to employ. OVs are appointed by the race tracks and must be approved by the Registrar of Alcohol, Gaming and Racing (the "Registrar"). OVs examine horses before and after races, and have the ability to remove (a.k.a. scratch) a horse from a race if it is their medical opinion that the horse is not fit to race.

[2] On February 6, 2018, the Registrar rescinded the applicant's approval as an OV, thereby effectively ending from her employment. The applicant appealed the Registrar's decision to the Horse Racing Appeal Panel (the "Panel" or "HRAP") and applied for a stay of that decision. On July 26, 2018, the Panel denied the applicant's application for a stay on the basis that it had no jurisdiction to hear her appeal from the Registrar's decision

[3] This is an application to judicially review the Panel's decision that it had no jurisdiction to hear the applicant's appeal. For the reasons that follow, I would allow the application and remit the matter to a differently constituted Panel for a decision on both the stay and the appeal.

Factual Background

[4] The applicant has been licensed by the College of Veterinarians of Ontario to practice veterinary medicine since 1987.

[5] There are three types of horse racing: Standardbred, Thoroughbred and Quarter Horse. To provide private (as opposed to neutral) veterinarian services to horses involved in Standardbred racing at race tracks (which are also referred to as "Associations") a veterinarian must obtain an AGCO veterinarian licence. The applicant still retains her AGCO veterinarian licence. [page653]

[6] To be approved as an OV in any kind of horse racing, a veterinarian must possess an "Association Official" licence. For 24 years the applicant held an AGCO veterinarian licence and an Association Official licence.

[7] Prior to the rescission of her OV approval, the applicant earned 50 per cent of her employment income from race tracks who employed her as one of their OVs.

[8] On February 6, 2018, the Applicant received a letter from the Registrar informing her that she was no longer approved as an OV. That letter stated the following:

As I advised you in person, effective immediately you are no longer approved as an Official Veterinarian, as required by Standardbred Rule 8.01.02 and Thoroughbred Rule 27.01.01.

Upon review of thorough investigative findings we have serious concerns about your willingness to follow directions from Commission Veterinarians and general ability to act with honesty and integrity as it relates to the duties and requirements of an Official Veterinarian.

[9] While the Registrar rescinded the applicant's approval as an OV, it did not rescind her AGCO or Association Official licences. Under s. 20 of the Horse Racing Licence Act, 2015, S.O. 2015, c. 38, Sch. 9 (the "Act"), if the Registrar had proposed to suspend or revoke the applicant's AGCO or Association Official licences, she would have had a right to appeal that decision to the Licensing Appeal Tribunal (the "LAT").

[10] The Registrar advised the applicant that if she wished to contest its decision, her recourse was to appeal to the Panel. However, when the matter proceeded to the Panel, the Registrar took the position that the Panel lacked jurisdiction.

The Panel's Decision

[11] The Panel found that under the Act, a decision of the Registrar could only be appealed to the Panel if the decision in question was made under the Rules of Racing. To the extent that the Rules of Racing mention OVs, the rules "are descriptive, not prescriptive". The Registrar's decision to rescind its approval of the Applicant as an OV was not made under the Rules of Racing; it was made under s. 2 of the Act. As such the Panel did not have jurisdiction to hear the applicant's appeal. Thus, her motion for a stay was also denied.

[12] The effect of the Panel's decision was to deny the applicant an appeal of the Registrar's rescission of her approval as an OV, a decision that had serious consequences for her since it effectively deprived her of half of her employment income. The only remedy available to her was to judicially review the Registrar's decision. [page654]

Standard of Review

[13] The applicant argues that the issue on this judicial review is a true question of jurisdiction, which means that the appropriate standard of review is correctness. The Registrar disagrees, asserting that the Panel's decision involves the interpretation of the Panel's home statute and Rules. Thus, it is subject to the deferential standard of reasonableness.

[14] As the Supreme Court of Canada made clear in Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, [2011] 3 S.C.R. 654, [2011] S.C.J. No. 61, 2011 SCC 61, true questions of jurisdiction are very rare, so rare that the court had not found one in a case since Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9.

[15] The question decided by the Panel concerns its own jurisdiction. Clearly the Panel had jurisdiction to decide this question. Does it have to be right, or just reasonable, in deciding this question about its own jurisdiction? On current authority this is not a "true question of jurisdiction" and thus the standard of review is reasonableness. However, I do not need to explore this matter further as in my view the Panel's decision is not only incorrect, it is unreasonable.

Analysis

[16] The Panel appropriately cites the relevant section of the Act governing appeals to the Horse Racing Appeal Panel. Section 8(1) provides as follows:

8(1) If the rules of racing provide for an appeal to the Panel, a person who considers themself aggrieved by a decision of a steward, judge, veterinarian, race track official, racing association official, licensing agent or officer or employee of the Commission may appeal the decision to the Panel and the hearing of the appeal shall be held in accordance with the Panel's rules of procedure.

(Emphasis added)

[17] What the Panel does not cite or deal with in its decision is rule 24.01 of the Rules of Standardbred Racing 2016 (the equivalent appears in the rules governing other forms of racing). It reads:

Appeals

24.01 Subject to rule 3.01.03 [which has no application to this case] and the Horse Racing Licence Act, 2015, any person aggrieved by a decision or ruling of the Judges, Registrar or delegated officials may appeal the decision or ruling to the HRAP.

(Emphasis added) [page655]

[18] The wording of rule 24.01 is clear. There is no issue that the applicant is a "person aggrieved by a decision . . . of the Registrar". Rule 24.01 is a "rule of racing" and it does provide for a right of appeal to the Panel. This is all that is required under s. 8(1) of the Act. Thus, the applicant is entitled to appeal the Registrar's decision to rescind her approval as an OV to the Panel. To find otherwise runs contrary to the unambiguous wording of the legislation and is therefore unreasonable.

[19] The respondent AGCO submits that the structure of the Rules and the Act is such that the decision of the Registrar to revoke an OV approval is not the type of decision that the Panel is mandated to deal with. I find this submission difficult to accept both because of the clear wording of rule 24.01 and because the Registrar is empowered to make disciplinary decisions under the Rules and those decisions are appealable to the Panel. In this regard, rule 8.12 states:

8.12 Should any veterinarian licensed by the Commission be found in violation of the rules or be found to have engaged in any actions that would be considered a breach of ethics by the veterinary profession, that veterinarian may be assessed a monetary penalty, and/or suspended by the Judges, or may be referred to the Registrar for disciplinary action under the rules.

[20] The Registrar's decision to rescind the applicant's approval as an OV was very much akin to a disciplinary decision. It was made because of "serious concerns" about the applicant's "willingness to follow directions from Commission Veterinarians and general ability to act with honesty and integrity as it relates to the duties and requirements of an Official Veterinarian". As a result of the decision, the applicant was effectively discharged from her employment as an OV. If the Registrar's action had been taken as a result of a disciplinary complaint, the applicant would have been able to appeal that decision to the Panel. Thus, I reject the submission that an appeal from the decision is not one that the Panel is mandated or equipped to deal with.

[21] The applicant made an argument that the Registrar's decision to rescind her approval as an OV was a disguised license revocation. Thus, she argued, she should be entitled to appeal the decision to the LAT. First this submission was not made to the Panel and this court is reluctant to deal with arguments that are raised for the first time before it. To do so both deprives the court of the tribunal's assessment of the matter and undermines finality. Second, the applicant's argument depends upon a finding that granting an Association Official license is the same thing as being approved as an OV. There is nothing more required. I reject this submission. While an Association Official [page656] license is required before a veterinarian can be approved as an OV, neither the Act nor the Rules state that this is all that is required. In fact, rule 8.01.02 makes it clear that OVs must be appointed by the Associations (race tracks) and approved by the Registrar. The relevant portion of rule 8.01.02 reads:

8.01.02 The Official Veterinarians shall be those veterinarians appointed by the Associations and approved by the Registrar to officiate at extended race meetings[.]

Conclusion

[22] The application is allowed, the decision of the Panel is set aside and the matter is remitted back to a differently constituted panel for a decision on the stay and the merits of the appeal. Both parties filed costs outlines setting out that their partial indemnity costs amounted to $10,000, all inclusive. I find this amount to be a reasonable one to award the successful party on this application. The Registrar is to pay the Applicant her costs of this application, fixed in the amount of $10,000.

Application allowed.

End of Document