ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO: CV-09-393171
DATE: 20120928
B E T W E E N:
Simon Husbands Plaintiff
- and -
Richard Grubb, Fenton Platts, Gunnar Lindberg and Ontario Racing Commission Defendants
Harvey A. Swartz , for the Plaintiff
Brendan van Niejenhuis & Justin Safayeni, for the Defendants
HEARD : July 25, 2012
GOLDSTEIN J.:
[ 1 ] The Plaintiff, Simon Husbands, is a jockey. He was suspended by racing stewards for “failing to persevere with his mount” during a race. He appealed to the Ontario Racing Commission (“ the Commission ”). He won and the suspension was lifted. He then brought an action against the Defendants alleging malicious prosecution. The Defendants now move for summary judgment. For the reasons set out below, summary judgment is granted and the action is dismissed.
FACTS
[ 2 ] On Sunday, November 30, 2008 Mr. Husbands was riding Bug’s Boy, an undistinguished horse, at Woodbine Race Track in Toronto. His brother, Patrick, was also riding in the race. Patrick was having an excellent season at Woodbine. Were he to win the race, he would have acquired the most wins of any jockey at Woodbine that season. In the event, Patrick, riding Come On Love, won the race. Mr. Husbands, riding Bug’s Boy, placed second. Bug’s Boy had overtaken much of the field, and after passing the wire actually moved ahead of Come On Love.
[ 3 ] The previous Sunday, November 22, 2008, Mr. Husbands had also been riding Bug’s Boy. Bug’s Boy had finished poorly, despite aggressive riding and whipping by Mr. Husbands.
[ 4 ] Mr. Husbands’ riding style during the November 30 race generated controversy. Some members of the public – and the race stewards – observed that Mr. Husbands had not ridden Bug’s Boy aggressively despite the second-place finish. Mr. Husbands’ racing tactics were at odds with his usual aggressive racing style, and markedly different from the other jockeys in the race. Mr. Husbands did not whip Bug’s Boy or take other aggressive action with the horse. The other jockeys had been whipping, “hand driving” or “scrubbing” their horses. “Hand driving” in this context refers to the technique of urging a horse with hands and arms but not whipping. “Scrubbing” refers to the technique of urging a horse forward by moving the arms and the whip forwards and backwards along the horse’s neck. Mr. Husbands merely tapped Bug’s Boy on the neck.
[ 5 ] During the race, Dan Loiselle, the race announcer, commented publicly that Bug’s Boy had “yet to be asked.” In later testimony before the Commission he explained that he meant that Mr. Husbands had not whipped or scrubbed the horse to ask the horse for his best effort. Jennifer Morrison, who wrote a horse racing blog for the Toronto Star, criticized Mr. Husbands’ handling of Bug’s Boy in an online post. At least one betting member of the public complained to a race steward.
[ 6 ] The irony was that the second-place finish was Bug’s Boy’s best race ever. He had never finished higher than fifth. The horse’s owner and trainer, John LeBlanc, was ecstatic with the result.
[ 7 ] The Commission is charged with the overall regulation of the horse racing industry. Race stewards are responsible for ensuring the fairness and propriety of horse races. Where, in their opinion, there has been impropriety they have a duty to investigate and may convene a hearing. They may determine that the Rules of Thoroughbred Racing have been breached and impose a penalty. Race stewards are highly experienced in the horse racing industry: for example, the defendant Richard Grubb has been a senior steward or associate steward for 27 years. The defendant Fenton Platts had been an associate steward for 6 years; prior to that he had worked as a trainer, owner, jockey, and paddock judge. The defendant Gunnar Lindberg (who was not at Woodbine for the race but who was part of the hearing panel that disciplined Mr. Husbands) had been an associate steward for 9 years and a jockey for 18 years before that.
[ 8 ] After the race, the stewards reviewed the video, a routine practice. They had concerns about the manner in which Mr. Husbands had ridden Bug’s Boy, and decided to convene a hearing. They spoke to Mr. LeBlanc, who informed the stewards that Mr. Husbands had ridden the horse in a manner consistent with his instructions, as the horse did not respond well to whipping or scrubbing. The stewards attempted to serve Mr. Husbands, but he had left the track. November 30, 2008 was a Sunday. Woodbine was closed on the Monday and Tuesday. Mr. Husbands was ultimately served on Wednesday, December 3. A hearing was held on Friday, December 5, 2008.
[ 9 ] A slightly different panel of stewards conducted the hearing. William McMahon, who had observed the race, was not available and was replaced by the defendant Lindberg. The stewards heard evidence from a representative of the jockey’s guild, Mr. LeBlanc, and Mr. Husbands. The Stewards found that Mr. Husbands had failed to persevere with his mount, and imposed a one-year suspension from racing.
[ 10 ] Mr. Husbands appealed to the full Commission. On December 12 the Commission issued a stay of the penalty. A full hearing was held on March 30 and 21, 2009. Although characterized as an appeal pursuant to s. 11(7) of the Racing Commission Act , 2000 , S.O. 2000, c.20 (“ the Act ”) the hearing is actually a hearing de novo in which the Commission administration bears the full burden of proof.
[ 11 ] The Commission heard from 14 witnesses, including Bugs Boy’s veterinarian, the stewards, Mr. LeBlanc, several highly experienced former jockeys who had viewed the video (acting, in effect, as expert witnesses), and Mr. Husbands. Mr. Husbands argued that the decision that he had failed to persevere with his mount was wrong. Mr. Husbands further argued that the stewards did not even have a basis to hold a hearing, and that the penalty imposed was excessively harsh. His theory was that the stewards had been motivated by malice, as there was no other way to explain the one-year suspension, which was one of the toughest ever imposed in the racing industry in Ontario.
[ 12 ] The Commission allowed Mr. Husbands’ appeal and quashed the suspension. It found that the Administration had not proven on a balance of probabilities that Mr. Husbands had failed to persevere with his mount. The Commission also found that there was a basis for the stewards to investigate. In doing so, the Commission commented that the appearance of failing to persevere with his mount given by Mr. Husbands was obvious to all and justified the inquiry by the stewards. Indeed, the Commission went out of its way to praise the professionalism of the stewards although the Commission also vindicated Mr. Husbands.
[ 13 ] Claiming that he could no longer obtain mounts and thereby suffered damages, Mr. Husbands filed a Statement of Claim in this Court against the Commission and the individual defendants. He pleads malicious prosecution. The defendants bring this motion for summary judgment on the basis that there is no genuine issue for trial.
ANALYSIS
[ 14 ] I must first determine whether the record is sufficient for me to consider the question of summary judgment. The test is set out in Combine Air Mechanical Services Inc. v. Flesch , [2011] O.J. No. 5431 , 108 O.R. (3d), 2011 ONCA 764 (C.A.):
50 We find that the passages set out above from Housen, at paras. 14 and 18, such as “total familiarity with the evidence”, “extensive exposure to the evidence”, and “familiarity with the case as a whole”, provide guidance as to when it is appropriate for the motion judge to exercise the powers in rule 20.04(2.1). In deciding if these powers should be used to weed out a claim as having no chance of success or be used to resolve all or part of an action, the motion judge must ask the following question: can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?
[ 15 ] The record in this case is very complete. There was a full hearing before the Commission in which witnesses testified. Mr. Husbands was represented by counsel. The stewards filed affidavits and were cross-examined, as was Mr. Husbands. The hearing was subject to the Statutory Powers Procedure Act. I have the benefit of that transcript. Discoveries of Mr. Husbands and the three individual defendants have been completed and those transcripts have also been filed before me. Crucially, there are no significant conflicts in the evidence that I have to resolve for the purposes of this motion: Combine Air Mechanical, supra, para. 52. I have little difficulty concluding that I am able to obtain a “full appreciation” from the record.
[ 16 ] Turning to the issues, the Defendants make three arguments: first, the issues in the action have already been determined by the Commission and therefore that issue estoppel applies; second, abuse of process; and third, that there is no evidence of malice.
[ 17 ] Issue estoppel applies where the following elements are established:
The decision creating the estoppel is final;
The two proceedings have the same parties, or their privies;
The proceeding raises issues that have been decided in the earlier proceeding, or where a party had the opportunity to raise the issue and should have done so.
See: Penner v. Niagara (Regional Municipality) Police Services Board , [2010] O.J. No. 4046, 102 O.R. (3d) 688, 2010 ONCA 616 (C.A.) . The doctrine also applies to the decisions of administrative tribunals: Penner , supra, para. 22 .
[ 18 ] There is no question that the Commission’s decision was final. It has not been appealed or overturned. There is also no question that the proceedings have the same parties, even accounting for the fact that the stewards were not technically parties before the Commission. In my view, nothing turns on that fact. It was their decision under appeal. The stewards have delegated authority from the Commission to apply the Rules of Thoroughbred Racing : Racing Commission Act, 2000 , S.O. 2000, c. 20, s. 11(3). Their actions were under scrutiny. Unlike Mr. Husbands, they did not have counsel representing their interests.
[ 19 ] I also find that the defendants have established the third element of issue estoppel. The decision of the stewards to conduct an inquiry and impose a penalty was very much in issue at the hearing de novo . Mr. Husbands took the same position before the Commission that he takes in this litigation, namely that the stewards had no reasonable and probable cause to conduct an inquiry and that their actions were motivated by malice. His counsel cross-examined the stewards and put those allegations to them. Mr. Husbands’ theory was addressed by the Commission in its reasons.
[ 20 ] In my view, the decision of the Ontario Court of Appeal in Gale v. Ontario Racing Commission , [2009] O.J. 370 (C.A.) provides a complete answer to this issue. Gale was a standardbred driver. He was asked to provide a urine sample by a Commission official. He was unable to do so and the official did not allow him to provide one at a later time. A panel of three stewards found that he had violated the Rules of Standardbred Racing and fined him. At a hearing de novo the Commission upheld the decision of the stewards but reduced the fine. The Divisional Court upheld the Commission’s decision. Gale then brought a lawsuit against the Commission and the official who required the urine sample, alleging negligence, negligent investigation, breach of statutory duties, and intentional infliction of economic distress. The defendants moved for summary judgment, which was granted. Gale appealed. The Court of Appeal commented:
10 The ORC held a full de novo hearing at which the appellant appeared, testified and was represented by counsel. The issues which the appellant seeks to litigate are the same issues he raised in defence in the ORC proceedings and on which the ORC ruled. The motion judge was aware of the differences between the ORC proceedings and the litigation process, stating that if the proceedings before the ORC had been limited strictly to Mr. Gale's conduct, it might have been open to him to launch a civil proceeding dealing with the conduct of the inspector. However, the motion judge found that the defence that Mr. Gale mounted initially, and again on appeal to the ORC, turned largely on the allegations that the inspector had acted improperly by not granting him the right to give a sample on some future date, as he allegedly had done for other drivers. Additionally, there was evidence and argument that the inspector had laid the charges against Mr. Gale as punishment for the comments that Mr. Gale had allegedly made to the inspector earlier on the day in question.
11 In short, the motion judge found that the question of the inspector's good faith and the propriety of his actions had been ruled on in the proceedings before the ORC. On the record, it was fully open to the motion judge to make those findings.
[ 21 ] Even if the elements of issue estoppel are met, a court still retains discretion as to whether to apply the remedy. The basis for the discretion was set out by Laskin J.A. in Penner , supra :
38 Once a court is satisfied that the three requirements of issue estoppel have been met, the court must then decide whether to exercise its discretion not to apply it. This discretion exists because issue estoppel is intended to achieve a just result between the parties. Before applying issue estoppel a court should ask itself: “is there something in the circumstances of this case such that the usual operation of the doctrine of issue estoppel would work an injustice?” The court's discretion is case specific - it “must respond to the realities of each case.” See Schweneke v. Ontario (2000), 2000 5655 (ON CA) , 47 O.R. (3d) 97 (C.A.).
[ 22 ] Some of the factors considered by Laskin J.A. in considering how to apply the Court’s discretion in that case included the different purposes of the hearings (especially as the hearing was held before an administrative tribunal), whether the plaintiff had a financial stake in the hearing, the expertise of the decision maker, the hearing procedures, and the right of appeal.
[ 23 ] In my view, there is no basis to apply my discretion against applying issue estoppel. I do not see how Mr. Husbands was treated unfairly. His suspension was stayed after only four days. He had every right to a full hearing before the Commission, which his counsel ably used to advance his theory. The chair of the panel was James Donnelly, an experienced former judge of this Court. The main consideration that would militate against applying issue estoppel is that Mr. Husbands had no way to appeal the discrete finding that the stewards had a basis to inquire, as he won the Commission hearing. Ultimately, the real question is whether it would be unfair or unjust to apply issue estoppel here. Given that Mr. Husbands himself admitted in his examination for discovery that there was a basis for the stewards to inquire, I find that it would not.
[ 24 ] I also agree that the doctrine of abuse of process applies. To permit this litigation to go ahead would be to permit Mr. Husbands to re-litigate issues that he has already had an opportunity to raise in another forum. The Court of Appeal in Gale further commented:
12 In the circumstances, we agree with the motion judge that to permit the action to proceed is an abuse of process. The doctrine of abuse of process is predicated on the notion that litigation ought not be permitted to proceed where it would violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice: see Toronto (City) v. C.U.P.E. Local 79 , 2003 SCC 63 , [2003] 3 S.C.R. 77 at para. 37 . The same issues raised by the appellant in defence at the ORC proceedings would have to be relitigated. And, in order to succeed in the action, the appellant would have to displace the determinations made by the ORC and upheld by the Divisional Court. To permit the action to proceed would violate the principles identified in Toronto v. C.U.P.E.
[ 25 ] In my view, those comments apply to this case. The hearing was a hearing de novo in which the administration bore the burden of proof. It was counsel for Mr. Husbands who raised the issue of the propriety of the actions of the stewards.
[ 26 ] Although I can dismiss the action on the basis of either issue estoppel or abuse of process, for the sake of completeness I turn to the question of whether there is a genuine issue for trial.
[ 27 ] The plaintiff pleads the tort of malicious prosecution. Assuming without deciding that the tort applies in these circumstances, the essential elements of the tort have not been made out.
[ 28 ] In Miazga v. Kvello Estate , 2009 SCC 51 , [2009] 3 S.C.R. 339 a p. 346-347 the Supreme Court of Canada set out the test for malicious prosecution:
3 To succeed in an action for malicious prosecution, a plaintiff must prove that the prosecution was: (1) initiated by the defendant; (2) terminated in favour of the plaintiff; (3) undertaken without reasonable and probable cause; and (4) motivated by malice or a primary purpose other than that of carrying the law into effect.
See also Penner , supra , at paras. 35-36 .
[ 29 ] As noted, the Commission found that there was a basis to commence the inquiry into Mr. Husbands’ ride of Bugs Boy. For example, Mr. LeBlanc, Bug’s Boy’s trainer, stated that he could see how some people would find, observing the race, that Mr. Husbands had held back with the horse. Even Mr. Husbands admitted in his examination for discovery that reasonable people could agree that he had not ridden Bug’s Boy aggressively. Accordingly, Mr. Husbands cannot meet the third element of the test.
[ 30 ] The key to succeeding in a malicious prosecution lawsuit against a Crown prosecutor is to prove malice, as the Supreme Court of Canada further commented in Miazga :
7 … Under the strict standard established in Nelles, malicious prosecution will only be made out where there is proof that the prosecutor's conduct was fuelled by “an improper purpose or motive, a motive that involves an abuse or perversion of the system of criminal justice for ends it was not designed to serve” (Nelles, at p. 199)…
8 The high threshold for Crown liability was reiterated in Proulx, where the Court stressed that malice in the form of improper purpose is the key to proving malicious prosecution. In the context of a case against a Crown prosecutor, malice does not include recklessness, gross negligence or poor judgment. It is only where the conduct of the prosecutor constitutes an “abuse of prosecutorial power”, or the perpetuation of a “fraud on the process of criminal justice” that malice can be said to exist (paras. 44-45)…
[ 31 ] Mr. Van Niejenhuis argues that the comments of the Court in Miazga Estate and Nelles point to a conclusion that it is only under highly exceptional circumstances that claims for malice can be made out. While I accept that the roles of Crown prosecutor and racing steward are somewhat analogous in their respective contexts, I would not go that far. The stringent requirements for proving the tort apply with great force where there are concerns to preserve the independence of the Attorney General and the discretion of Crown prosecutors. Those concerns are fundamental to the rule of law. Without in any way denigrating the crucial function that racing stewards play in an important industry that brings many economic and social benefits to the province, I am not convinced that the same concerns apply.
[ 32 ] That said, however, on any standard I am persuaded that malice cannot be made out by Mr. Husbands. Mr. Husbands, who is required to “put his best foot forward” has simply not provided any evidence upon which a court could find that the stewards acted with malice:
56 By adopting the full appreciation test, we continue to recognize the established principles regarding the evidentiary obligations on a summary judgment motion. The Supreme Court of Canada addressed this point in Lameman, at para. 11, where the court cited Sharpe J.'s reasons in Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 28 O.R. (3d) 423 (Gen. Div.) , at p. 434, in support of the proposition that “[e]ach side must 'put its best foot forward' with respect to the existence or non-existence of material issues to be tried.” This obligation continues to apply under the amended Rule 20. On a motion for summary judgment, a party is not “entitled to sit back and rely on the possibility that more favourable facts may develop at trial”: Transamerica, at p. 434.
Combine Air Mechanical, supra, at para. 56.
[ 33 ] In contrast, the stewards have all testified, either before the Commission, in affidavit form, or in examinations for discovery that they never bore Mr. Husbands any ill-will, and that they genuinely believed that he had failed to persevere with his mount. They maintained that position at the hearing de novo and there has been no evidence put forward by Mr. Husbands to contradict them.
[ 34 ] Mr. Husbands himself has indicated in his examination for discovery that he has no idea why the stewards “had it out for him” and had no idea whether they had an ulterior motive. Indeed, Mr. Husbands conceded that although he thinks the stewards made a mistake, they were ultimately trying to do their job. He also agreed that there was a basis for the stewards to investigate.
[ 35 ] I therefore find that two of the essential elements of the tort of malicious prosecution cannot be established.
DISPOSITION
[ 36 ] The motion is granted a nd the action is dismissed. As Mr. van Niejenhuis fairly conceded, Mr. Husbands’ situation is not unsympathetic. Under the circumstances, I believe fairness requires that there be no order as to costs.
GOLDSTEIN, J.
DATE: September 28, 2012
COURT FILE NO: CV-09-393171
DATE: 20120928
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N:
Simon Husbands Plaintiff
- and -
Richard Grubb, Fenton Platts, Gunnar Lindberg and Ontario Racing Commission Defendants
JUDGMENT
GOLDSTEIN J.
Released: September 28, 2012