Bertrand v. Director of the Ontario Racing Commission, 2013 CanLII 83714

RULING NUMBER COM TB 024/2013

COMMISSION HEARING TORONTO, ONTARIO – NOVEMBER 26, 2013

NOTICE OF DECISION

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

AND IN THE MATTER OF AN APPEAL BY ROBERT BERTRAND, AGAINST THE NOTICE OF PROPOSED ORDER TO REFUSE TO ISSUE A LICENCE, ISSUED ON SEPTEMBER 23, 2013, BY STEVEN LEHMAN, DIRECTOR OF THE ONTARIO RACING COMMISSION;

AND IN THE MATTER OF AN APPLICATION BY NOTICE OF MOTION BROUGHT ON BEHALF OF ROBERT BERTRAND, FOR AN ORDER THAT ANTHONY WILLIAMS, VICE CHAIR OF THE ONTARIO RACING COMMISSION, RECUSE HIMSELF FROM THE HEARING OF THE APPEAL

Date of Hearing: November 26, 2013

ORC Panel Member: Anthony Williams, Vice Chair

Counsel for the Applicant: Daniel J. McMahon and Stephen Jack

Counsel for the Administration: Jennifer Friedman

Decision: The Application was granted on November 27, 2013.

Reasons for Decision To follow.

These are the Reasons for Decision.

DATED at Toronto, Ontario, this 20^th day of December 2013.

Steven Lehman

Executive Director

REASONS FOR DECISION

INDEX

Part I The Issue

Part II Background

Part III The NOP

(i) The Case for the Administration

(ii) The Case for Robert Bertrand

Part IV The Hearing of the Motion

(i) The Prior Rulings

(ii) the Notice of Motion for Recusal

Part V The Rules of Engagement

Part VI The Decision

Part VII The Result

Part VIII Appendix – The Authorities

Part I The Issue

1. Does a reasonable apprehension of bias exist, such that the Vice Chair should be recused from hearing the appeal by Bertrand, against the Notice of Proposed Order to Refuse to Issue a Licence?

Part II Background

2. Robert Bertrand (“Bertrand”) was licensed by the Ontario Racing Commission (“ORC”) as a Racing Official.

3. The Woodbine Entertainment Group employed Bertrand as the Clerk of the Scales for thoroughbred horse racing at Woodbine.

4. On March 1, 2013, the licence of Bertrand expired.

5. On March 6, 2013, the Deputy Director of the ORC issued a letter to Bertrand which stated:

“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.”

6. On March 20, 2013, Bertrand refused to provide a statement to an ORC investigator.

7. On April 10, 2013, the Deputy Director issued a Ruling which stated:

“…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 subsection 18(1) and 18(4) of the Racing Commission Act.”

8. On May 23, 2013, an appeal by Bertrand against this decision was denied by the Vice Chair.

9. Bertrand was declared “ineligible to be licensed as an Association Official until he responds to an ORC investigator.”

10. Bertrand subsequently answered all questions from the ORC investigator and provided documents as requested.

11. Bertrand then requested a conditional licence pending the completion of the investigation.

12. The Director refused this request.

13. On August 9, 2013, an appeal by Bertrand against this decision was denied by the Vice Chair.

14. On September 23, 2013, the Director issued a Notice of Proposed Order (“NOP”) to Refuse to Issue a Licence to Robert Bertrand.

15. Bertrand filed an Appeal against this Notice.

16. On September 25, 2013, counsel for Bertrand requested by letter that the Vice Chair be recused from the panel assigned to hear the appeal against the NOP.

17. On October 4, 2013, counsel for Bertrand filed a Notice of Motion requesting that the Vice Chair recuse himself from the hearing panel on the ground that there was a reasonable apprehension of bias.

18. On November 26, 2013, this Notice of Motion was heard by the Vice Chair.

19. On November 27, 2013, the Application for Recusal was granted, with Reasons for Decision to follow.

Part III The NOP

(i) The Case for the Administration

20. It was alleged that Bertrand engaged in “purported misconduct” including:

(i) breach of breath testing protocols;

(ii) approval of light weight boots (“cheater boots”) at the weigh-in of a jockey; and

(iii) receipt of personal benefits, including cash, from several jockeys.

21. It was further alleged that Bertrand would not act:

(iv) “in accordance with the law or with integrity, honesty, or in the public interest, having regard to his past conduct”; and that

(v) “the public interest requires that Bertrand not be granted a licence.”

(ii) The Case for Bertrand

22. The case for Bertrand was set out in the exhibits filed and the submissions of counsel as follows:

(i) there was “no evidence that Bertrand, while carrying on the activities for which a licence was required, would not act with integrity, honesty and in the public interest;”

(ii) the alleged breaches of alcohol and drug policy were “stale-dated” and “old news”;

(iii) “any shortcomings in his conduct have been fully acknowledged;”

(iv) “stakes fees” were an acceptable practice and that Bertrand should have been cautioned before he was sanctioned;

(v) his “pre-hearing exclusion from licensing was more than a sufficient penalty for any shortcomings of his conduct.”

Part IV The Hearing of the Motion

23. The panel heard the submissions of both counsel and read the exhibits and precedents filed.

(i) The Prior Rulings

24. The prior rulings dealt in part with procedural matters. However, the live evidence heard, the exhibits filed and the submissions made, required that findings be made upon a broad spectrum of issues. Some of these necessary findings concerned substantive matters of particular significance in the pending appeal against the NOP as follows:

(a) Bertrand #1

25. “ 41. The panel makes the following findings:

(i) Investigation - Foundation

45. Upon consideration of the entire investigative process, including the interviews (their frequency, duration, location and participants), the investigative reports, the fresh interviews of others and in particular, the evolving safety concerns, there was ample foundation for the continued inquiries and investigations of Bertrand.

46. The full investigation of safety concerns is essential in TB horse racing where the symbiotic relationship of equine and human athletes demands a blend of skill, strength, endurance and courage, in close quarters, at amazing speeds.

(ii) Immunity

51 However, it must be understood, that no participant in the horse racing world, in Ontario, including Bertrand, irrespective of prior pristine conduct, multiple skill sets, experience, longevity or popularity within the jockey colony, is immune from investigation. There are no untouchables.

(v) Requests By Counsel

57 It is expected that requests by counsel will be treated with courtesy and consideration. However, when assessing the response of investigators to requests by counsel, it must be remembered that there is a “need for a flexible interpretation of the supervising powers of a self-regulated profession to enable them to discharge their public duty.” (Pharmascience Inc. v Binet)”

26. The NOP relied in part, at para. 23, upon these selected excerpts.

(b) Bertrand #2

27. “33 Findings

(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”;

34. Result

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.”

28. The NOP relied in part, at para. 37, upon these selected excerpts.

29. These findings were adverse to the positions advanced by Bertrand at both hearings.

30. These findings were made upon evidentiary foundations that would appear to differ from that anticipated at the hearing of the NOP appeal, albeit with many common features.

31. These findings may impact upon issues that would appear to be integral to the appeal.

Part V The Rules of Engagement

(i) recusal should not occur because an objection is raised but by reference to established legal principles;

(ii) mere prior involvement with an issue does not lead to automatic disqualification;

(iii) it is the duty of the impugned adjudicator to rule upon the motion;

(iv) there is a strong presumption in favour of the impartiality of the trier of fact;

(v) the burden of proof is on the party making the claim;

(vi) the standard of proof is on a balance of probabilities;

(vii) the test is an objective one, as to whether an informed person, having thought the matter through, would conclude that the board member, whether consciously or unconsciously, would not decide fairly; and

(viii) that the determination as to whether a reasonable apprehension of bias arises is a highly fact-specific inquiry.

Part VI The Decision

32. Although I am confident that I would decide the pending appeal by Bertrand, on the evidence, without bias, fear or favour, this is not the test for recusal.

33. The rather unique circumstances of this case must be measured against the applicable standard test as to reasonable apprehension of bias, such that this matter must be heard, not only with a totally open and fresh mind, but also must appear to be so heard.

34. The Notice of Motion for Recusal (Ex. 1), buttressed by the Factum (Ex. 4), the Case Book, (Ex. 13), including Part II, “Issues to Consider”, and the submissions of counsel, have provided, in totality, a persuasive legal foundation for this application.

35. The issue was framed as follows:

The Question:

Q. Does a reasonable apprehension of bias exist, such that the Vice Chair should be recused from hearing the appeal by Bertrand against the Notice of Proposed Order to Refuse to Issue a Licence?

The Answer:

A. Yes.

36. Bertrand has demonstrated, on a balance of probabilities, that an objective person, fully apprised of the history of this matter and the relevant legal principles, would entertain a reasonable apprehension of bias, based upon the cumulative impact of the necessary findings made by the Vice Chair in the Rulings in Bertrand #1 and #2, upon the live issues yet to be determined in the appeal by Bertrand against the NOP.

Part VII The Result

37. The Notice of Motion for recusal of the Vice Chair from the panel assigned to hear the appeal by Bertrand against the NOP is granted.

DATED in Toronto, Ontario, this 20^th day of December 2013.

Anthony Williams

Vice Chair

Appendix

Part VIII The Authorities

(i) Right to an Impartial Adjudication

“Whether a trial is of an accused in a criminal case or of a plaintiff in a civil proceeding, both are entitled to an impartial adjudication.

See Songer v. Bank of Nova Scotia (1998), 1998 CanLII 3715 (ON CA), 39 O.R. (3d) 1, [1998] O.J. No. 2071 (C.A.), at p. 9 O.R.”

Lloyd et al v. Bush et al, 2012 ONCA 349, 110 O.R. (3d) 781 at p. 800

(ii) Appearance of Justice

“The consideration that prevails in such cases is that captured by the familiar dictum of Lord Hewart in R. v. Sussex Justices, ex parte McCarthy, [1934] 1 K.B. 256 (at p. 259), of which we are so often reminded on these occasions, that ‘justice should not only be done but should manifestly and undoubtedly be seen to be done’.”

Bennett v. British Columbia, (Superintendent of Brokers) [1994], B.C.J. No. 2489 (B.C.C.A.)

(iii) Responsibility to Decide

The responsibility to decide lies with the adjudicator against whom the allegation is made, who should resist the natural tendency to step aside.

“… the practice is for the impunged judge (or judges) to rule on the motion that he or she (or they) withdraw from hearing or deciding the case.”

Boardwalk Reit LLP v. Edmonton (City) 2008 ABCA 176, [2008] A.J. No. 515 (A.C.A.) at para 7

(iv) A Note of Caution

“If motions for recusal are allowed too readily on insubstantial grounds, parties to a proceeding will be provided with a potentially powerful instrument for engaging in adjudicator shopping and delaying proceedings and, more generally the law’s grip on practical realities will be loosened.”

Toneguzzo v. Kimberly-Clark Inc., 2005 HRTO 9

(v) Legal Principles to Govern

… “it is my duty to determine whether or not I ought to recuse myself, not by simply agreeing to refrain from hearing the matter because an objection is raised, but by reference to established legal principles.”

De Cotis v. De Cotis, 2004 BCSC 117 (Can Lii), 2004 BCSC 117

[(vi) Presumption of Impartiality

… “There is a strong presumption in favour of the impartiality of the trier of fact..”](https://www.canlii.org/en/bc/bcsc/doc/2004/2004bcsc117/2004bcsc117.html)

Lloyd et al v. Bush et al, 2012 ONCA 349, C.O.R.(3d) 781 at p. 788, para 25.

(vii) The Essence of Impartiality

“The essence of impartiality lies in the requirement of the judge to approach the case to be adjudicated with an open mind …”

Wewaykum Indian Band v. Canada, [2003] 2 R.C.S.

(viii) The Burden of Proof

“The burden of proof is on the party alleging a real or apprehended breach of the duty of impartiality, who must establish actual bias or a reasonable apprehension of bias.”

Mugasera v. Canada (# 2) 2005 SCC 3g at para. 3

(ix) Standard of Proof

The applicant must prove his application on a balance of probabilities.

Peart v. Peel Regional Police Services Board, (2006), 2006 CanLII 37566 (ON CA), 43 C.R. (6^th) 175 (Ont C.A.)

(x) Threshold

“The threshold for such finding is high and the onus of demonstrating bias lies with the person alleging its existence.”

R. v. R.D.S, 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484 at p 3.

(xi) Previous Proceedings

“Where the bias is alleged to arise from involvement in previous proceedings, it is also relevant to look at the connection between the present proceedings and the previous proceedings. Mere prior involvement with an issue does not lead to automatic disqualification:

Collins v. Canada, 2011 FCA 171, 421 NR 201;

S.G. v. Larochelle, 2005 ABCA 111, 363 AR 326”

Lavesta Area Group v. Alberta

(Energy and Utilities Board) [2012], A.J. No. 267 (A.C.A.)

(xii) Fact Specific Inquiry

“Determining whether a reasonable apprehension of bias arises requires a highly fact-specific inquiry.”

Lloyd et al v. Bush et al, 2012 ONCA 349, at p. 788, para. 26

(xiii) Objective Test – Cumulative Evaluation

“The test is an objective one. Thus, the trial record must be assessed in its entirety and the interventions complained of must be evaluated cumulatively rather than as isolated occurrences, from the perspective of a reasonable observer throughout the trial.”

Chippewas of Mnjikaning First National v. Ontario (Minister of Native Affairs),

2010 ONCA 47, [2010] O.J. No 212, 2010 ONCA47, at para. 230, leave to appeal to S.C.C., refused [2010] S.C.C.A. No. 91

(xiv) The Test

Is there a reasonable apprehension of bias?

“The apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information … that test is ‘what would an informed person, viewing the matter realistically and practically- and having thought the matter through - conclude. Would he think that it is more likely than not that the [board member], whether consciously or unconsciously, would not decide fairly’?”

[1978] 1 S.C.R. 369 at 394 1976 CanLii 2 (S.C.C.).

(xv) Application of the Test

(i) the person alleged to apprehend the bias must be reasonable;

and

(ii) presumed to have some knowledge and understanding of the judicial (or administrative) process and the nature of decision making;

R v. S (R.D.), 1977 Can Lii (S.C.C.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484 at para. 31

and

(iii) presumed not to have a “very sensitive … conscience”

R v. S (R.D.), 1977 Can Lii 324(S.C.C.), [1997] 3 S.C.R. 484 at para. 37

(xvi) Each Case is Unique

“Each case in which it is alleged that there arises a reasonable apprehension of bias will turn on its own facts and be of little, if any, value as a precedent.

In every instance it shall be a question of fact whether the words and/or conduct impugned would induce, in the mind of a reasonable observer with equivalent knowledge, a reasonable apprehension of bias. What remains in the present case is a consideration of the circumstances of these proceedings and their measurement against the applicable standard to ascertain whether judicial error has been shown and judicial disqualification should follow.”

R v. Ferrier, 2001, CanLii 28407 (ONSC) para. 50

(xvii) Reasonable Apprehension of Bias

“I think that there is a reasonable apprehension that a judge in the same proceedings, involving the same parties, having made a determination of an important issue, might be perceived as not being able to approach it with a totally open mind, and in that degree and in that degree only do I find that there is a reasonable apprehension of bias.”

Re: Regina v. Nolin (1982) 1982 CanLII 3882 (MB CA), 1 C.C.C. (3d) 36 (Man. C.A.) (leave to appeal to the Supreme Court of Canada refused)