Robert R. Bertrand v. Director of the Ontario Racing Commission, 2013 CanLII 49574

RULING NUMBER COM TB 012/2013

COMMISSION HEARING TORONTO, ONTARIO – JULY 31, 2013

NOTICE OF DECISION

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

AND IN THE MATTER OF THE APPEAL BY ROBERT R. BERTRAND

Robert R. Bertrand appealed against the July 18, 2013, decision by the Director of the Ontario Racing Commission, to deny his request for a conditional licence as a Racing Official, pending the outcome of an investigation into his conduct as the Clerk of the Scales for thoroughbred horse racing.

ORC Panel Members: Anthony Williams, Vice Chair

Counsel for the Appellant: Daniel McMahon

ORC Counsel for the Administration: Jennifer Friedman

Decision: Appeal denied

The Panel’s Reasons for Decision is attached to this Notice.

DATED at Toronto, Ontario, this 9th day of August, 2013.

BY Order of the Commission

Steven Lehman

Executive Director

REASONS FOR DECISION

Background

1. Robert R. Bertrand (“Bertrand”) was licensed by the Ontario Racing Commission (“ORC”) for 49 years. Bertrand was licensed in a variety of positions including Exercise Boy; Jockey Valet; Authorized Agent; Paddock Judge; Horse Identifier, and for the last approximately 20 years, as the Clerk of the Scales (“C of S”), during his employment with the Woodbine Entertainment Group. Bertrand was classified as a “Racing Official”, by Rule 2.33 of the Rules of Thoroughbred Racing (“TB Rules”), Licence # 114494.

2. In the fall of 2012, the Investigations Branch of the ORC began an investigation into alleged “purported misconduct” by Bertrand.

3. Bertrand’s licence as a racing official for the year 2012 expired on March 1, 2013.

4. On March 6, 2013, the Deputy Director of the ORC sent a letter to Bertrand that stated:

(i) “Should you make application for a licence as an association official, your licence will not be approved pending the outcome of an investigation into your official duties as the Clerk of the Scales”; and

(ii) “The decision to refuse to approve your licence may be appealed pursuant to subsection 11 (7) of the Racing Commission Act, 2000.”

5. This decision was not appealed by Bertrand.

6. On March 20, 2013, Bertrand met with an ORC investigator.

7. Bertrand refused to provide a statement as requested by the investigator.

8. On April 10, 2013, the Deputy Director issued Ruling TB ADMIN 5/2013, which stated in part:

“AND WHEREAS Bertrand was contacted by an ORC investigator;

AND WHEREAS Bertrand refused to provide requested documents or a statement;

TAKE NOTICE that Bertrand is ineligible to be licensed as an Association Official until he responds to an ORC investigator, pursuant to subsections 18 (1) and 18 (4) of the Racing Commission Act.”

9. Bertrand’s appeal against this Ruling was heard on April 24, 2013.

10. On May 23, 2013, the appeal was denied.

11. The result:

“Robert Bertrand is ineligible to be licensed as an Association Official until he responds to an ORC Investigator, pursuant to subsections 18 (1) and 18 (4) of the Racing Commission Act.” The April 10, 2013 Ruling remained in effect.

12. On May 30, 2013, the appellant, his counsel and the investigator, met again, this time at the request of the appellant. The appellant answered the further questions of the investigator. The appellant was served with a Requirement to Provide Documents.

13. By June 19, 2013, the appellant had substantially complied with the ORC’s request for documents.

14. On June 28, 2013, counsel made the following request of the Director:

“… it is sincerely hoped that a licence can be issued at this time to Mr. Bertrand, even if the investigation is to continue.”

15. On June 28, 2013, the response from the ORC to this request was as follows:

“… given the nature of the investigation, the Administration is not prepared to grant a conditional licence to Mr. Bertrand pending its outcome.”

16. On July 10, 2013, the ORC further advised that:

(i) “The review of the financial and telephone records has yielded concerns that will require further investigation ...

The investigators are working diligently to complete a comprehensive investigation as quickly as possible.” and

(ii) the investigation would “not be completed by July 12, 2013, as originally anticipated.”

17. On July 18, 2013, the ORC confirmed in writing, as requested by counsel, “that the Administration of the ORC is not prepared to grant a conditional licence to Mr. Bertrand until the completion of the investigation.”

18. Later that day, a Notice of Appeal was filed against this decision.

19. On July 31, 2013, a panel of the ORC was convened to hear the appeal.

Rules Of Engagement

20. I. Jurisdiction

(i) The Racing Commission Act, Section 11 (7), states in part:

“… a person who considers oneself (sic) aggrieved by a decision of a person to whom the Commission had delegated a power is entitled to a hearing by the Commission.”

In this hearing,

(a) the “person” who considers himself aggrieved is Bertrand;

(b) the “decision” is the denial of Bertrand’s request for a conditional licence as a racing official which was made July 18, 2013;

(c) the “person to whom the Commission has delegated a power” is Steven Lehman, Director, ORC, the person who made the decision.

(ii) The TB Rules

The TB rules state in part:

(a) “An appeal is a request to review any decisions … of delegated officials.” (TB Rule 13.17)

(b) “An appeal lodged in accordance with Rule 13.17 must be based upon specific grounds which would warrant modification or reversal of the decision.” (TB Rule 13.17.02)

The proper appeal route has been followed by the appellant.

I am satisfied that I have jurisdiction to hear this appeal.

II. Trial De Novo

21. This trial must be a “trial de novo”. McNamara v. (Ontario Racing Commission) 7144 ONCA, August 13, 1998, O.C.A. and Polifroni v. Ontario Racing Commission #2, 2013 ONSC 4662, July 19, 2013, O. Div. Ct.), in apparent contrast to the wording of our Rules.

III. Burden of Proof

22. Which Party carries the burden of proof?

“If a legal rule requires a fact to be proved (a “fact in issue”), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are zero and one. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other [page 60] carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of zero is returned and the fact is treated as not having happened. If he does discharge it, a value of one is returned and the fact is treated as having happened.” F.H. v. McDougall, 2 October 2008, SCC (pp. 13-14, para 44).

The burden of proof is on the Administration to prove:

(a) that the decision to deny to appellant a conditional licence was appropriate; and

(b) that the request for an appeal was frivolous.

IV. The Standard of Proof

23. “I think it is the time to say, once and for all in Canada, that there is only one civil standard of proof at common law and that is proof on a balance of probabilities” F.H. v. McDougall 2 October 2008 SCC (pp. 12-13 para. 40)

V. The Statute

24. Public Interest

“The Ontario Racing Commission has a statutory mandate ‘to govern, control and regulate horse racing in Ontario in any of all of its forms’ (Act, s.5). It has a broad array of powers set out in s.7 of the Act, and in exercising those powers and performing its duties, it must act in the public interest and ‘in accordance with the principles of honesty, integrity and social responsibility’.” (s. 6), (Ontario Racing Commission and Patrick Hudon, December 19, 2008, Ontario Divisional Court), (pages 1-2, para 2)

VI. Investigations

25. (i) “…the principle …, that requires that investigative powers be interpreted in a manner that ensures that investigators will have sufficiently effective measures at their disposal to gather all information relevant to determining whether a complaint should be lodged …” (GORE v. College of Physicians and Surgeons of Ontario, July 7, 2009, 2009 ONCA 546), (page 10, para 29)

(ii) “The Court of Appeal has held, with respect to a professional self-regulating body, that ‘it would take clear words’ from the legislature to deprive an investigator of the powers necessary to carry out an investigation:

[In Pharmascience v. Binet the Supreme Court] emphasized the onerous obligation placed on self-regulating bodies to protect the public …

It would take clear words to deprive the investigator of powers necessary to carry out this important public interest.” (Wise v. the Law Society of Upper Canada, May 4, 2010, 2010 ONSC 1937, (Ontario Divisional Court), pages 4-5, para 16)

Flexible Interpretation

(iii) “The Act, (Pharmaceutical Profession Act of Alberta) however, neither sets out specific directions about how to conduct a preliminary investigation nor provides time frames for completion. In our view, a restrictive interpretation would be inappropriate. The Supreme Court of Canada has stressed the need for a flexible interpretation of the supervising powers of self-regulated professions in order to enable them to discharge their public protection duty:” (Pharmascience Inc. v. Binet, 2006, (SCC), page 48 at paras 36-38), (Farooq v Alberta College of Pharmacists, October 20, 2010, 2010 A.J. No. 1548, Alta. C.A.), (page 10, para 48)

The Issues

26. I. Denial of conditional licence

Question: Was the denial of the request for a conditional licence pending the outcome of an investigation appropriate?

II. Claim of frivolous appeal

Question: Was this request for an appeal frivolous?

The Evidence

27. (i) The Factum of the Appellant

Part I, paras 1 to 24 inclusive, are accepted by the Respondent with caveats only as to the subjective components of the following:

para 10: answered “completely and fully” all of his questions;

para 11: “diligent efforts”;

para 23: to his knowledge has an “unblemished” record; and

para 24 “anxious” to return to work. (Ex. 3)

28. (ii) The Factum of the Respondent

Part I, paras 1 to 24 inclusive, are accepted by the appellant with the exception of para 1:

Robert R. Bertrand is not now licensed by the ORC (on July 31, 2013), (Ex. 4).

29. (iii) The Witness – Cindy Marie Wilson

Ms. Wilson described the present circumstances of the appellant and the steps taken by him to comply with the ORC requests for documents.

30. (iv) The Supplemental Report – Brian Arrand

The Investigator stated as follows:

“Bertrand has complied with requirements as set out in the ruling by Vice Chair …”

(Ex. 2, page 5).

31. The Position of the Appellant

(i) “On May 30, 2013, Robert Bertrand with his counsel met the ORC Investigator Brian Arrand and answered completely and fully all of his questions. …”, (Ex. 2, para 5); and

(ii) “It took Robert Bertrand from May 30, 2013 until June 19, 2013, by diligent efforts on his part and that of another family member that he was able to obtain almost all of the detailed information that the investigator had requested.” (Ex. 3, para 11);

(iii) “Robert Bertrand, in addition to requesting information from his bank on the same day that he was asked to obtain additional information, (July 16, 2013) he also arranged for his counsel on July 18, 2013, to send the investigator a letter explaining further answers to all or most of the further inquiries that were asked of him.” (Ex. 3, para 18);

(iv) “Robert Bertrand is anxious to return to work to Woodbine Entertainment as soon as possible as his savings have been substantially depleted over the past 4.5 months without income from Woodbine Entertainment.” (Ex. 3, para 24);

(v) “There is no concern now” re: “M”.(a jockey);

(vi) “Silks are no longer an issue”;

(vii) “Cheater” boots are no longer an issue;

(viii) The “cheques” “may or may not be considered an impropriety;

(ix) There is “no concern with respect to public safety”;

(x) A “probation order” could be put in place, to “protect the public”, as part of a conditional licence that Bertrand may only operate the breath testing equipment “under the supervision of the Acting Assistant Clerk of the Scales”;

(xi) That the appeal is not frivolous.

32. The Position of the Respondent

(i) The safety concerns expressed by the Commission in the May 23, 2013 Ruling continue to exist;

(ii) The Supplemental Report of July 25, 2013 has “yielded significant concerns in relation to improprieties”;

(iii) “Given the significance of these concerns” it is both:

(a) “premature to grant a conditional licence” and

(b) “contrary to the public interest.”;

(iv) ;The financial challenges Bertrand faces should “not trump the public interest consideration.”

(v) “There is a clear end date for this investigation.”

(vi) “The Director will make a swift decision” …“within a week of (receipt of) the investigative package.”

(vii) That this appeal by Bertrand is ”frivolous”;

(viii) That the investigation has been “proper, in good faith and legitimate.”

Findings

33. (i) Following the failure by Bertrand to seek to renew his licence for 2013, he was notified that an application for licence would “not be approved pending an investigation into your official duties as the Clerk of the Scales.”

(ii) When Bertrand refused to provide either requested documents or a statement to the investigator on March 20, 2013, he was aware that his refusal would not only prevent the completion of the investigation but would also operate as a ban to his future licensing pending compliance.

(iii) I am persuaded by the evidence of Ms. Wilson, in combination with the paper trail provided, since May 23, 2013:

(a) that Bertrand has made “diligent efforts … to obtain … the information” that the investigator requested. (Ex. 3, para 11); and

(b) that Bertrand is now “anxious to return to work.” (Ex. 3, para 24);

(iv) I am satisfied that Bertrand, since May 23, 2013:

(a) has “completely and fully” answered all questions of the investigator; and

(b) has made his best efforts to comply with all requests for documents in a full and timely manner

(v) I accept the opinion of the investigator in the Supplemental Report that “Bertrand had complied with the requirements as set out in the ruling by the Vice Chair ” (Ex. 2, page 5);

(vi) The receipt of the outstanding documents is expected late August to the first week of September 2013;

(vii) The Director of the ORC has committed to make:

(a) “a swift decision”;

(b) “within a week of receipt of the investigative package”;

(viii) Although it is apparent that certain of the original topics of concern have faded or been muted, there remain significant concerns in relation to both safety and improprieties in the investigation of “purported misconduct”;

Result

34. Conditional Licence Denial

I am satisfied, on a balance of probabilities, that the Administration has demonstrated that the continuing investigations of the appellant, by the ORC, have been conducted:

(i) in good faith;

(ii) for legitimate investigative purposes (safety and potential improprieties);

(iii) in a timely manner (when one considers the history of the investigative process, the significant concerns raised, the substantial hiatus following the March 20, 2013 decision by the appellant to refuse to provide information and materials relevant to the investigation and the anticipated decision by the Director by mid September 2013); and

(iv) in accordance with the rules of procedural fairness; such that denial of a licence to Bertrand as a racing official, even a conditional licence, in these unusual circumstances, is in the public interest, to ensure public confidence in the honesty and integrity of the horse racing industry.

35. Frivolous Appeal Claim

(i) The Respondent claimed that the request for an appeal by Bertrand was frivolous.

(ii) The Commission has the power to sanction frivolous requests:

(a) “If after holding the hearing, the Commission is of the opinion that the request for a hearing was frivolous, the Commission may order the person requesting the hearing to pay to the Commission, a penalty of not more than the amount prescribed by the regulations …” Racing Commission Act, 2000 S.O. 2000, C.20; subsection 11 (8).

(b) “The amount of penalty for the purpose of subsection 11 (8) of the Racing Commission is $1,500.” Ontario Regulation.

(iii) “Frivolous” has been defined as follows:

1. of little or no weight, worth or importance; not worthy of serious notice:

“a frivolous suggestion“

2. characterized by a lack of seriousness or sense:

“frivolous conduct”

3. (of a person) given to trifling or undue levity:

“a frivolous empty-headed girl”; silly/trifling

Syn. – light, trifling, petty, paltry, trivial or flimsy, idle, silly, foolish, childish, puerile

Ant. – weighty, serious (the Random House Dictionary of the English Language, the Unabridged Edition, 1966 at page 570)

(iv) This appeal canvassed serious, legitimate concerns.

(v) A frivolous request sanction is not appropriate.

Conclusion

The Issues

I. Conditional Licence Denial

Question: Was the denial of this request for a conditional licence pending the outcome of an investigation appropriate?

Answer: “Yes”.

II. Frivolous Appeal Claim

Question: Was the request for an appeal frivolous?

Answer: “No”.

DATED this 9th day of August 2013.

Anthony Williams

Vice Chair