CITATION: Austin v.
Ontario Racing Commission, 2007 ONCA 587 |
DATE: 20070830 |
DOCKET: C45788 |
COURT OF APPEAL FOR ONTARIO |
ROSENBERG, ROULEAU JJ.A. and KILLEEN J. (ad hoc) |
BETWEEN: |
KEVIN AUSTIN |
Applicant (Respondent) |
and |
ONTARIO RACING COMMISSION |
Respondent (Appellant) |
Brendan Van Niejenhuis and Patricia
M. Latimer for the appellant |
Douglas Gosbee for the respondent |
Heard: May 29, 2007 |
On appeal from the order of the
Divisional Court (Cunningham A.C.J.S.C., Meehan and Epstein JJ.) dated
February 6, 2006 allowing an application for judicial review and quashing
the decision of the Ontario Racing Commission dated July 6, 2005. |
ROULEAU J.A.: |
OVERVIEW
[1] This
appeal concerns whether a reasonable apprehension of bias is created when,
on an appeal by way of hearing de novo from the decision of an administrative
discipline hearing, the appeal tribunal allows a judge who was a member of
the panel that heard the matter at first instance to testify.
[2] In
a ruling dated December 14, 2004, a panel of track judges found the respondent
Kevin Austin guilty of having provided an improper (cold) urine sample. He
was fined $1,500, suspended for 120 days, and placed on probation for two
years.
[3] Following
this initial hearing,
Austin appealed by way of a hearing de novo before the appellant Ontario
Racing Commission (the “Commission”). A panel of three commissioners (the “Commission
Panel”) was struck to hear the matter. At the hearing, William Maertens,
the senior track judge who chaired the panel of track judges whose decision
was under appeal, was called as a witness and testified. On July 6, 2005,
the Commission Panel issued its ruling, denying the appeal and upholding
the sanctions against
Austin.
[4] Upon
judicial review the
Divisional Court found, in brief reasons delivered orally, that the Commission
Panel created a reasonable apprehension of bias by allowing a member of the
panel of track judges whose decision was under appeal to testify at the de
novo hearing.
[5] The
appellant appeals the
Divisional Court’s judgment to this court. The Commission argues that track
judges regularly testify at Commission hearings and the
Divisional Court erred in finding that this created a reasonable apprehension
of bias.
Austin argues that the
Divisional Court was correct in concluding that a reasonable apprehension
of bias was created when Maertens was allowed to testify at the hearing.
[6] For
reasons that follow, I would allow the appeal and remit the case to the
Divisional Court for a new hearing.
FACTS
[7] Horseracing
in
Ontario is a highly regulated activity. The Racing Commission Act, 2000,
S.O. 2000, c. 20 (the “R.C.A.”) is the governing statute. It gives
the Commission broad regulatory power as well as the power to make rules
and delegate much of its enforcement power to onsite officials, such as track
judges. Among these delegated powers is the power to hold hearings.
[8] Kevin
Austin is a licensed driver, trainer, and owner of standardbred racehorses. On
November 2, 2004,
Austin was racing horses at Kawartha Downs Raceway and was advised to present
himself at the raceway for urine testing that day. The Commission has a
urine testing program to test for marijuana and cocaine use among drivers.
Austin was on probation for an earlier offence in February 2004 and was required
to submit for urine testing. Investigator John McEachern attended at the
raceway to administer the urine tests.
[9] A
3:18 p.m., McEachern asked
Austin to provide a sample. McEachern repeated this request at 3:24 p.m.
and 3:26 p.m.
Austin eventually provided a sample to McEachern after the sixth race, at
around 6:30 p.m. This sample had several problems. Not only did the temperature
register less than the required 90 degrees Fahrenheit, but the sample was
less than the required 30 millilitres. McEachern notified
Austin of these deficiencies and asked him to return later to provide another
sample. The track judges at Kawartha Downs that day were Jeff Minler, William
Maertens, and Wes Coke. McEachern explained to the track judges that he
had received a cold sample from
Austin, had thrown it out, and was waiting for another sample.
[10]
Austin returned to McEachern after the ninth race and declared that he was
unable to produce a sample at that time. He told McEachern that he would
return later that evening with a sample. Later,
Austin went with McEachern to buy some water.
Austin drank some of the water and provided another urine sample. Although
there was a sufficient quantity of urine, this sample was only 88 degrees
Fahrenheit. Of all the drivers tested that day, only
Austin’s sample was below the threshold temperature. McEachern informed
the track judges that he had received another cold sample from
Austin but that this time he had sealed and preserved the sample. McEachern
agreed to contact the Commission’s head office the following day regarding
this matter.
[11] On
November 3, 2004,
Austin was suspended indefinitely until he provided the Commission with a “clean
and proper sample”. On November 9, 2004,
Austin supplied the Commission with a clean sample. As a result, the suspension
was lifted and
Austin was permitted to enter horses provided he appear before the track
judges at Kawartha Downs in advance of any race.
[12] The
track judges at Kawartha Downs received a report from McEachern dated November
5, 2004, which outlined the problems he had encountered in obtaining a sample
from
Austin on November 2. Upon reviewing the report, the track judges were concerned
that
Austin may have provided fraudulent samples.
[13] Section
5 of the R.C.A. mandates the Commission “to govern, direct, control
and regulate horse racing in
Ontario in any or all of its forms.” Given the nature of the industry, much
of the power to regulate and govern the conduct of racing and its participants
is delegated to track judges who are onsite officials. This delegated power
includes the responsibility to perform certain investigative and adjudicative
functions. According to r. 6.28 of the Rules of Standardbred Racing,
2003, track judges may
interrogate any licensee and may require him/her
to make statutory declarations or statements in writing and provide documentary
evidence of any agreements or transactions, financial or otherwise, respecting
to any suspected crime or violation of these rules, the Act, or any matter
which, in the opinion of the Judges, the Director of Racing, or his/her authorized
representative, is not in the best interest of racing.
[14] Based
on McEachern’s report, the track judges decided that there may be sufficient
evidence to warrant charges of
Austin having violated Commission rules 6.05, 6.20(a)(b)(c), and 6.38(f). The
Commission’s rules provide that the track judges are responsible for holding
the hearing, deciding whether a rule has been violated, and imposing a penalty. The
track judges determined that a hearing would be necessary to deal with the
charges.
[15]
Austin appeared before the track judges at Kawartha Downs on November 23,
2004, at 6:40 p.m. The charges were explained and
Austin enquired into the possible consequences of these charges. He was
told that, if proven, the charges could lead to very serious consequences,
but nothing more could be determined until there was a hearing. A hearing
date was scheduled for December 9, 2004, at Kawartha Downs at 1:00 p.m.
Austin was given a copy of the notice of hearing and full disclosure.
[16] The
hearing was held on December 9, 2004, where
Austin appeared before Kawartha Downs track judges Maertens (senior judge),
Al Caughley, and Tom Miller. The purpose of the hearing was to “deal with
charges of violations of ORC rules 6.05, 6.20(a)(b)(c) and 6.38(f) arising
from Kevin Austin allegedly providing cold and possible fraudulent or improper
human urine samples; samples that were deemed unacceptable for testing, at
Kawartha Downs on November 2, 2004.” The track judges conducted the hearing.
Austin was in attendance as well as his representative. McEachern was the
only witness called by the track judges and
Austin testified on his own behalf.
[17] After
hearing submissions from
Austin’s representative, the track judges retired to deliberate. They later
returned with their decision, finding that
Austin had violated various Commission rules.
Austin’s representative then spoke to penalty. Several days later, on December
14, 2004, the track judges issued their ruling on penalty.
Austin was fined $1,500, suspended for 120 days, and placed on probation
for two years.
[18] On
December 20, 2004, Maertens wrote to the supervisor of Standardbred Racing
summarizing the investigation and the hearing. In this letter he explained
how the track judges came to their decision on the breaches and on penalty.
[19] According
to s. 11(7) of the R.C.A., where a person considers himself to be
aggrieved by a decision made by a person exercising a power delegated by
the Commission, that person is entitled to a hearing de novo by the
Commission at which the Commission may exercise its powers and duties “as
if it had not delegated them.” See also McNamara v.
Ontario (Racing Commission) (1998), 111 O.A.C. 375.
[20]
Austin filed an appeal pursuant to s. 11(7) of the R.C.A. It was
heard de novo before a panel of the Commission’s Commissioners. The
Commission Panel consisted of Chair Lynda Tanaka and Commissioners Bernard
Brennan, and George Kelly. Both the Commission’s Administration and
Austin were represented at the hearing.
[21] The
Commission Panel heard from Kristin Ferris, McEachern, Maertens, and Austin.
[22] Ferris
was an expert qualified to give evidence in the interpretation and analysis
of human urine samples. She testified that the Commission took urine samples
in accordance with standard procedures used in
Canada
and the
United States
. While she had seen samples with a temperature below the allowed range,
she knew of no reason for the temperature being lower than the range other
that it being an adulterated or substituted sample. The Commission Panel
accepted her evidence and wrote that “it is standard practice in both Canada
and the United States that urine provided by humans for the purposes of a
drug testing program should register a temperature between 90 degrees and
100 degrees Fahrenheit when measured within 4 minutes of exiting the body
in order to constitute a proper sample for the purposes of being tested.”
[23] McEachern
recounted his version of the events of November 2, 2004.
[24] Maertens,
the senior judge who led the panel of track judges in the first instance,
was called as a witness by the Administration. Counsel for
Austin objected to Maertens being called, arguing that Maertens had no relevant
evidence to give. Further, having been the previous trier of fact, calling
him as a witness at the de novo appeal would create a reasonable apprehension
of bias.
[25] After
hearing submissions from
Austin and the Administration, the Commission Panel ruled that Maertens could
be called as a witness for certain limited purposes. The Commission Panel
noted that it was quite common to have track judges testify at such hearings. Although
Maertens had acted as a trier of fact, he had relevant evidence to give at
the hearing.
[26] First,
since he was one of the Kawartha Downs track judges on November 2 he had
been a participant in and had knowledge of the events that were the subject
of the charges against Austin. As well, he could testify as to the steps
that were taken after November 2 up to and including the hearing by the track
judges on December 9.
[27] Second,
Maertens could testify as to what he was told by
Austin in the course of the investigation and at the December 9 hearing. The
Commission Panel felt that it was fairer to
Austin to have this evidence led as part of the Administration’s case. In
this way
Austin would know all of his statements that the Administration was relying
on before having to testify and present his defence.
Austin would therefore be in a position to comment on or rebut the statements
rather than hearing them for the first time in reply.
[28] Finally,
the Commission Panel recognized that hearing evidence from Maertens on the
appropriate penalty would, in ideal circumstances, be better left until after
they had reached their decision on liability. They decided, however, that
this would be disruptive and more costly to the parties as it would require
reconvening the panel for a second hearing assuming that they were to find
that rules had been breached. The Commission Panel therefore ruled that
it would receive evidence from Maertens on penalty at the same time as his
other testimony. It would, however, only use this portion of the evidence
if and when they reached the penalty stage.
[29] In
light of this ruling, the Chair of the panel instructed counsel for the Administration
to limit Maertens’ evidence to those areas. The hearing proceeded on that
basis.
[30]
Austin then testified. He acknowledged there was a three-hour gap between
the time he was initially asked to provide a sample and when he first went
to McEachern for the test. He denied altering his urine sample. The only
explanations for the low temperature of his urine samples were that the drivers’ room
was unusually cold and that he was wearing only his driver’s suit over his
underwear. There was, however, no dispute as to the room being heated and
that no other driver had a sample with a low temperature reading.
[31] By
order dated July 6, 2005, the Commission Panel dismissed the appeal and upheld
the sanctions against
Austin.
[32] Upon
judicial review, the
Divisional Court found that the Commission Panel had created a reasonable
apprehension of bias by receiving testimony from one of the judges who had
heard the matter in first instance. The
Divisional Court did not consider whether it mattered that the appeal was de
novo. As Maertens had delivered “full reasons”, the
Divisional Court could not see any basis for permitting him to testify at
the hearing.
[33] The
Commission appeals the
Divisional Court’s judgment to this court.
ISSUE
[34] The
issue in this appeal is whether the decision of the Commission Panel to allow
Maertens, one of the panel of judges at first instance, to testify gives
rise to a reasonable apprehension of bias.
DISCUSSION
[35] When
considering an allegation of bias or reasonable apprehension of bias, one
starts from the premise that absent evidence to the contrary a tribunal is
presumed to be fair and impartial. The test to be applied when considering
an allegation of reasonable apprehension of bias was set out by the Supreme
Court of Canada in Committee for Justice and Liberty v. Canada
(National Energy Board), [1978] 1 S.C.R. 369 at 394, and recently restated
in Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259 at para. 60:
[T]he 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. In the words
of the Court of Appeal, that test is “what would an informed person, viewing
the matter realistically and practically – and having thought the matter
through – conclude. Would [that informed person] think that it is more likely
than not that [the decision-maker], whether consciously or unconsciously,
would not decide fairly.”
[36] In
applying the test, the focus is on the individual decision maker. As stated
by the British Columbia Court of Appeal in Bennett v.
British Columbia (Securities Commission) (1992), 69 B.C.L.R. (2d) 171
at 181 (B.C.
C.A.
), “we wish to add one further observation and that is as to the target of
a bias allegation. Bias is an attitude in mind unique to an individual. An
allegation of bias must be directed against a particular individual alleged,
because of the circumstances, to be unable to bring an impartial mind to
bear.” In the present case, the individuals we are concerned with are the
members of the Commission hearing the de novo appeal, not Maertens,
the track judge who testified.
[37] Determining
whether a reasonable apprehension of bias exists is highly dependent on the
factual circumstances. This is particularly true with respect to administrative
tribunals which are based on unique statutory schemes and normative contexts. It
is assessed by taking into account the statutory regime that exists as well
as all of the facts and circumstances surrounding the hearing and the individuals
making up the panel.
[38]
Austin argues that because Maertens was one of the track judges who originally
ruled on the very issue the Commission Panel was now seized with de novo,
a reasonable apprehension of bias was created when the Commission Panel allowed
him to testify. In my view, this in and of itself is not sufficient. There
was no suggestion that some special relationship existed between Maertens
and the tribunal such that the tribunal might give greater weight to his
evidence than the evidence of other witnesses. In any event, on the facts
of this case, Maertens’ credibility was not in issue. His evidence was neither
challenged nor contradicted.
[39]
Austin acknowledged that track judges are regularly called upon to testify
at these hearings. They are onsite officials and can provide evidence concerning
events relevant to the proceedings.
Austin, however, seeks to make a distinction between testimony concerning
a track judge’s direct involvement in the investigation of the incident,
and testimony respecting the track judge’s role as an adjudicator. On the
basis of this distinction, Maertens’
evidence respecting his exchanges with the investigator on the day of the
incident may be proper but not his evidence concerning what occurred at the
hearing which is the subject of the appeal.
[40] Even
if such a distinction were appropriate, it immediately becomes obvious that
the concern is not the fact that the track judge was allowed to testify,
but the correctness of the Commission Panel’s ruling concerning the breadth
of the testimony to be given. It is the ruling, therefore, that needs to
be examined.
[41] The
Divisional Court reasoned that because Maertens provided full reasons there
was no basis for the Commission Panel’s ruling which allowed Maertens’ to
testify. The
Divisional Court concluded that by ruling that Maertens could testify, the
Commission Panel created a reasonable apprehension of bias. With respect,
I disagree. First, the December 20, 2004, letter written by Maertens did
not constitute reasons in the traditional sense. Although it provided an
explanation of why the track judges concluded that Austin breached the rules
and it set out the reasons for selecting the penalty imposed, the letter
also outlined the sequence of events starting on the day of the alleged breach
and ending with the hearing itself. It set out the involvement of the track
judges and related some of the statements given by
Austin both in the course of the investigation and at the December 9 hearing. Second,
absent Maertens testifying at the de novo hearing, the factual information
contained in this letter would be hearsay that could not be cross-examined
upon and may well have been given limited weight by the Commission Panel. Because
the Commission Panel was hearing the case de novo, the “findings of
fact”
made by the track judges did not carry the same legal significance that findings
of fact normally carry in appeals. Finally, because there was no transcript
of the proceedings before the track judges, one of the track judges would
have to testify as to admissions made by
Austin in that proceeding.
[42] Maertens
had relevant evidence to give. If the tribunal erred and allowed him to
give evidence which was irrelevant and not probative, such an error may be
reviewable on some basis. It would not, absent more, give rise to a reasonable
apprehension of bias.
[43] The
Commission Panel’s ruling could give rise to an apprehension of bias if,
for example, it disclosed the existence of some preconceived views as to
the merits or indicated that the track judge’s evidence was to be given greater
weight. In my view, however, the Commission Panel’s ruling gives rise to
no such concerns. It did not reveal any preconceived view and, given that
the track judge’s credibility was not put into issue, there could be no concern
regarding the weight that it would be given.
[44] The
record reveals that the Commission Panel heard
Austin’s objection to the track judge being called. In its ruling, the Commission
Panel explained the basis for allowing the track judge to testify and set
out the three areas on which the track judge could give relevant evidence. In
the course of the track judge’s testimony, the Commission Panel then sought
to restrict him to those areas.
Austin was given a broad right to cross-examine the track judge. In my view,
the reasons given by the Commission Panel for allowing the track judge to
testify provide no basis for a finding of reasonable apprehension of bias.
[45] Given
the nature of the proceedings, the Commission Panel should be given broad
discretion on the scope of evidence that can be presented. The Commission
Panel’s reasons do not suggest that the evidence of Maertens has been misused
or given undue weight. In my view, while some of the testimony given by
Maertens respecting the penalty was of questionable relevance, it does not
by itself provide a basis for intervention by the courts.
[46] One
can well understand
Austin’s concern that Maertens is, to some extent, in a conflict of interest. By
testifying before the Commission Panel Maertens would have been likely to
justify both the decision made and the penalty imposed by the panel of track
judges. This, however, would be obvious to the Commission Panel hearing
the de novo appeal. The track judges’ views were contained in Maertens’ December
20, 2004, letter to the supervisor of Standardbred Racing explaining the
reasons for the track judges’ decision. The Commission Panel would expect
Maertens to stand behind and seek to justify that decision. All of this
would have been taken into account by the Commission Panel when assessing
Maertens’ evidence. It does not provide a realistic basis for concluding
that the Commission Panel would, consciously or unconsciously, not decide
the issue fairly.
CONCLUSION
[47] For
these reasons, I would allow the appeal. The
Divisional Court’s decision dealt only with the issue of reasonable apprehension
of bias and did not otherwise address the merits of
Austin’s judicial review application. I would, therefore, remit the matter
back to the
Divisional Court for a new hearing. I would award the appellant costs fixed
at $5,000 inclusive of GST and disbursements.
RELEASED:
“MR” “
Paul Rouleau J.A.”
“AUG 30 2007” “I agree M. Rosenberg J.A.”
“I agree Gordon
Killen”