IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;

AND IN THE MATTER OF THE APPEAL OF

DANIEL WAXMAN AND VANDALAY RACING

Daniel Waxman and Vandalay Racing submitted a Notice of Motion requesting a Hearing before a panel of the Ontario Racing Commission to consider pre-hearing matters concerning disclosure.

On October 11, 2006, a panel of the Ontario Racing Commission consisting of Chair Lynda Tanaka convened to hear the pre-hearing motion.

Maureen Harquail represented the Administration and David Moore appeared on behalf of Daniel Waxman and Vandalay Racing.

On hearing the submissions of Counsel and on reading and reviewing the materials submitted by Counsel, the Commission hereby orders as follows:

a) The relief requested in items A) & B) in the Notice of Motion are refused with the condition that in the event that witness statements are prepared where they do not presently exist, those statements will be disclosed prior to the witness testifying;

b) The relief requested in item C) in the Notice of Motion is refused;

c) With respect to item D) of the relief requested, the investigation report or reports, counsel for the Administration will review the report or reports to determine if any portions are confidential and she will advise Mr. Moore of the results of her review on or before October 18, 2006. If on review of the document, she locates further documents that should have been disclosed that have not already been disclosed, then she should disclose those promptly and in any event before the commencement of the hearing.

The Commission gave written reasons for its decision which are attached to this ruling.

DATED at Toronto, this 12th day of October 2006.

BY ORDER OF THE COMMISSION original signed by Terry Stone

Terry Stone

A/Executive Director

REASONS FOR DECISION

Daniel Waxman and Vandalay Racing (“the licensees”) have brought a motion requesting additional disclosure of documents and statements. The licensees have requested a hearing following receipt of a Notice of Proposed Order (“the Notice”) issued by the Executive Director on May 10, 2006 alleging activities on the part of the licensees which would disentitle them to a licence, pursuant to Section 22 of the Ontario Racing Commission Act, 2000 (“the act”). In view of the relief requested and the upcoming hearing dates, I agreed to provide my decision on the motion argued Wednesday October 11 on Thursday October 12. I appreciate the assistance of counsel in directing me to specific portions of the large Motion Record prepared by counsel for the licensees, that counsel indicated I should review in arriving at my conclusions. None of the allegations in the Notice of Proposed Order have been proven and it will be up to the panel of the Commission hearing the matter to determine whether or not any of the documents disclosed by the Administration in the course of the prehearing proceedings or contained in the Motion Record are in fact entered as exhibits in the hearing and for what purpose. My review of the Motion Record (and it was limited) has been solely for the purpose of addressing the issue of proper disclosure.

BACKGROUND

By the letter dated July 21, 2006 (Tab 5, Motion Record) the Administration disclosed 12 volumes of documents included with the letter. The letter lists and identifies each of the volumes. The first seven volumes are identified as being organized by the name of the seven horses, so that there is one volume per horse, corresponding by name to the horses listed in the Particulars in the Notice. Volume 8 is described as “Ontario Racing Commission Investigator Troy Moffat’s notes” with a list of four headings. Volumes 9 to 12 are also listed and described in the letter. Counsel confirmed that at a later date the Administration disclosed Volume 13.

Tab 6 of the Motion Record consists of the indexes to all the volumes. Volumes 10 to 13 consist of documents produced by licensee Daniel Waxman and the Notices to Produce Documents directed to him. Volume 9 consists of various tax and corporate records, including Daniel Waxman’s tax returns. By reviewing the index and the Particulars in the Notice, it is possible to relate the structure of the document disclosure and the structure of the Particulars set out in the Notice though it is unclear, based solely on reviewing indexes and the Notice, why some of the documents are disclosed.

The notes of Investigator Moffat have apparently been reproduced entirely in the Motion Record. The notes clearly show the black obliteration (or “redaction”) of portions of the notes. Mr. Moore referred specifically to certain pages where only the word “ Waxman” or “Waxman case” were left legible with the remainder of the page blacked out. His submission was that he needed to see what else was on the page in order to satisfy himself that all the relevant information had been provided from the notes. On another page the reference in the notes was only to an attempt to reach a witness with no details on that page of any conversation. The submission by Mr. Moore was that he needs to see the rest of the page in order to satisfy himself that there were no further details related to the witness on the page.

RELIEF REQUESTED

The motion requests an order directing counsel for the Administration to:

a) “provide a reasonably detailed outline of the evidence expected to be adduced from each witness who Staff intends to call to testify at the hearing in this matter”;

b) “identify which documents Staff intends to rely upon, together with reasonable particulars of the evidence to be adduced in relation to such documents”;

c) “provide counsel for the [licensees] with an unredacted copy of all notes prepared by or under the direction of the investigators in this matter”; and

d) “provide counsel for the [licensees] with a copy of any and all reports prepared by the investigators in relation to the within proceedings”.

The licensees also request an adjournment of the hearing until a reasonable period of time after the delivery of the additional disclosure sought.

Mr. Moore submitted that the common law principles of procedural fairness and natural justice require that the Administration provide these items. The documents in items a) and b) would have to be prepared by counsel, as it is not the usual practice at this Commission to provide to opposing counsel will-say statements or a list identifying the specific documents that may be referred to by the witnesses.

Counsel relies on the case law that a high standard of justice is required when the right to continue in one’s profession or employment is at stake, and that the tribunal must observe natural justice as a constituent of the autonomy it enjoys by virtue of the deference it receives from the courts (Kane v. University of British Columbia, (SCC) 1980 CanLII 10 (SCC), [1980] S.C.J. No. 32). Other cases are cited by Mr. Moore in his argument, and included in his brief of cases, to show other instances where these basic principles of fairness have been applied in different situations.

The requirements of natural justice will depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter which is being dealt with, and other factors. (Kane v. University of British Columbia, supra). Cases where the ability of a person to earn their living in a regulated industry is attacked or where their character or integrity is challenged are clear examples where the courts scrutinize carefully the procedural issues in tribunal matters.

In his argument Mr. Moore specifically referred to three specific cases, Markandey v. Ontario (Board of Ophthalmic Dispensers) (Ont. Ct. (Gen. Div.)) [1994] O.J. No. 484, Re Hershoren and the City of Windsor et al (1974) 1973 CanLII 667 (ON HCJDC), 1 O.R. (2d) 291 (Div. Ct.) and Biscotti v. Ontario Securities Commission 1990 CanLII 6608 (ON HCJ), [1990] O.J. No. 1323 (Div. Ct.) and 1991 CanLII 7216 (ON CA), [1991] O.J. No. 35 (C.A.). None of these is a case where the courts required that counsel prepare documents such as will-say statements and summaries specifically for the purpose of disclosure.

In Markandey, in paragraphs 16 to 22, the Court describes the proceedings and the disclosure that was provided to the licensee. At paragraph 43 the Court states the importance of full disclosure to the fairness of a disciplinary proceeding. The Court specifies that this disclosure should include witness statements and notes of investigators, and that the disclosure should be made by counsel to the Board after a diligent review of the course of the investigation. The Court says that tribunals should disclose all information relevant to the conduct of the case, whether it be damaging to or supportive of a respondents’ position in a timely manner unless it is privileged as a matter of law. The Court does not say that counsel to the tribunal, or in this case the Administration, has an obligation to create in order to be disclosed, documents that do not exist as part of the fruits of the investigation.

The Hershoren case deals with the lack of notice related to the loss of property due to unpaid taxes and the decision-making of the municipal council and the Minister responsible for municipal affairs. Mr. Moore submitted that this case stood for the proposition that the Statutory Powers Procedures Act as it then existed represented minimum standards of procedural fairness. He did not argue that the Administration in its disclosure to this point had not met those minimal requirements.

In the Biscotti case, on which Mr. Moore was counsel, the Court describes the extent of disclosure that the Ontario Securities Commission staff provided already in the proceedings before the matter came to court. This disclosure included a summary of the theory of the case against Mr. Biscotti and the other licensees, as well as will say statements outlining the anticipated evidence of each witness, and all the documents that Commission counsel intended to file organized chronologically and by subject matter. In addition, counsel for the Commission had given an open invitation to counsel for the licensees to meet with Commission counsel to discuss or clarify the disclosure material already provided. The issue of disclosure in that case related to statements made by witnesses that by virtue of the statute were confidential and could not be disclosed. The Court of Appeal ordered that the panel hearing the case had the obligation to make a determination, on a witness by witness basis, as to whether or not the confidential statement should be ordered disclosed. No prehearing order requiring further disclosure was made, such as is requested here.

Mr. Moore was willing to provide additional time (including an adjournment of this motion) to counsel for the Administration to review the Motion Record he produced, the Brief of Cases and the written argument that he provided the morning of the motion, rather than last week as had been agreed between counsel. If he had provided his material in the time frame that was agreed, there would have been more time for counsel for the Administration to review his material so as to respond to the motion. Additional time was allocated during the motion to accommodate counsel and the lateness of the material filed on behalf of the licensees. Counsel are urged in proceedings before this Commission to be courteous to each other and to abide by those timetables they have agreed to, so as to prevent avoidable delays.

Counsel for the Administration submitted that the disclosure already made satisfied the requirements of the Statutory Powers Procedures Act, as well as the Rules of Procedure of this Commission with respect to pre-hearing disclosure. She submitted that the rules of natural justice and procedural fairness were the foundation of that statute and those Rules.

She reviewed the list of witnesses that she had provided in her letter reproduced at tab 11 of the Motion Record and indicated that there were no formal witness statements of any witnesses except Mr. Artandi, already produced. She indicated that some of the witnesses were persons to whom Notices to Produce Documents had been sent, and were named in the Notices that were included in the disclosure package. For at least two of those witnesses, their testimony would be as to the production of those documents. One witness is a driver who is alleged to have driven one of the horses in question. The lead investigator would be called and his handwritten notes had been disclosed.

With respect to the redaction of investigators’ notes, she indicated that she had carefully reviewed the notes and was satisfied that the notes produced contained all notes relevant to the case that were recorded in the investigators’ notes. One correction to the redaction has been provided to Mr. Moore, based on her view of the notes.

She referred to the decision of the Federal Court of Appeal, Ciba-Geigy Canada Ltd. v. Canada (Patent Medicine Prices Review Board) 1994 CanLII 19507 (FCA), [1994] F.C.J. 884, dealing with a request for disclosure of documents in the hands of the Patent Medicine Prices Review Board, specifically a report to the Chair of the Board on which he acted in ordering the hearing in the matter. The hearing related to what the court called “admittedly extremely serious economic consequences for an unsuccessful patentee… and a possible effect on a corporation’s reputation in the market place” (para 8). The Motions Judge in the Federal Court had refused to order the production. The Court of Appeal agreed with the statement of the Motions Court judge of the law in the context of tribunals including those whose decisions have significant impact on those whose economic ventures are subject to a regulatory tribunal. The Motions Court Judge held that

“The obligations concerning disclosure imposed by the doctrine of fairness and natural justice are met if the subject of the inquiry is advised of the case it has to meet and is provided with all the documents that will be relied on…Fairness is always a matter of balancing diverse interests.”

The principle that the concept of procedural fairness and its content are to be assessed taking into account the nature and seriousness of the matters in issue, the circumstances and the governing statute is also expressed in the Court of Appeal decision. In that case the outcome was that even some of the fruits of the investigation were withheld from the appellant.

CONCLUSIONS

The issue of disclosure must be considered in the specific context of this case. This case starts with the Notice of Proposed Order and the statement of the allegations made in that document. The Particulars include summaries of specific transactions and specific statements, and are organized by horse and within that structure chronologically. The request for disclosure must also be considered in the specific context of the industry and the documents that are created in the normal course in the industry, such as the kinds of documents that would in the normal course be kept for a horseman’s account at Woodbine Entertainment Group (WEG) or that a veterinarian’s office would keep or that a sales facility would keep.

I am satisfied that the Notice provides and is intended to provide a summary of the case so that the licensees are advised of the case to be met and that the organization of the disclosure, following as it does, the organization of the Particulars, should give counsel for the licensees sufficient information to know the allegations being made. If a different case than is outlined in the Notice of Proposed Order is put forward at the hearing without notice then the panel hearing the matter can deal with any objection made by the licensees.

It is clear that the case involves a significant number of documents that have been gathered in the course of the investigation and that reviewing those documents will present a challenge to counsel for the licensees. There is no dispute that the documents that will be relied on have been provided. The dispute is that they are not organized well enough for counsel for the licensees. There is no short cut to pre-hearing preparation. This Commission is not sympathetic to counsel who produce an enormous number of documents to another party without some organizational structure. In this case the Notice sets out a structure of allegations and the index to the document volumes identifies the documents that are contained in them. Finally a significant number of documents in the disclosure are from the licensees themselves. Therefore I do not accept the argument by Mr. Moore that he cannot discern what the witnesses will be testifying about and what documents they will be referring to.

I conclude that the disclosure provided satisfies the requirements of the SPPA, the Rules of Procedure of this Commission and the common law entitlements of the licensees.

Therefore I refuse to grant the relief requested in items a) and b) with the condition that in the event that witness statements are prepared where they do not presently exist, those statements will be disclosed to Mr. Moore prior to the witness testifying.

With respect to item c) of the relief requested, the redacted notes, it is not appropriate to disclose unredacted notes of the Commission investigators, given that they work on more than one investigation at any one time. I accept the statement of counsel for the Administration that all relevant notes have been produced. In the event that at the hearing it appears that other notes exist, the panel can consider what, if any, steps should be taken.

With respect to item d) of the relief requested, the investigation report or reports, notwithstanding the Ciba-Geigy case, counsel for the Administration has indicated in argument that she will review the report or reports to determine if any portions are confidential and she will advise Mr. Moore of the results of her review. She should do so, on or before October 18, 2006. If on review of the document, she locates further documents that should have been disclosed that have not already been disclosed, then she should disclose those promptly and in any event before the commencement of the hearing.

In view of the disposition of the Motion, it is clear that there is no need to adjourn the hearing set for October 23 and 24th for disclosure purposes. Counsel for the licensees also complained in argument that in late July/early August he told counsel for the Administration that he would not even discuss a hearing date until he had reviewed the disclosure provided on July 21st. In late August he received a notice of hearing setting the hearing dates of October 23 and 24, 2006, without his agreeing to those dates. While this tribunal attempts to accommodate counsel, it will set a hearing date in the absence of agreement of counsel and it will not allow counsel to delay matters coming on for hearing, dictated by their own convenience.

Subject to the obligations on counsel for the administration set out above, the Motion is dismissed.

DATED this 12th day of October 2006.

Lynda Tanaka

Chair