Scott v. Ontario Racing Commission, (2009) 253 O.A.C. 73 (DC)

• Judge: Cunningham, A.C.J.S.C., McCartney, R.S.J. and Hambly, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: October 09, 2008
• Jurisdiction: Ontario
• Citations: (2009), 253 O.A.C. 73 (DC)

Scott v. Racing Comm. (2009), 253 O.A.C. 73 (DC)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. JL.053

Brian Scott (applicant) v. Ontario Racing Commission (respondent)

(07-DV-001344)

Indexed As: Scott v. Ontario Racing Commission

Court of Ontario

Superior Court of Justice

Divisional Court

Cunningham, A.C.J.S.C., McCartney, R.S.J. and Hambly, J.

July 2, 2009.

Summary:

Allegations were made that Scott had violated the Ontario Racing Commission Rules of Standardbred Racing by distributing drugs for which he did not have a license and by acquiring, being in possession of, and administering a performance enhancing drug (Aranesp) to a horse. An investigation ensued. The Director of the Ontario Racing Commission issued an order for immediate suspension of Scott's licenses and a proposed order to suspend them for 10 years. The Director also notified Scott of his intention to impose a $100,000 fine. At Scott's request, a hearing was held before the Commission. The Commission upheld the Director's proposal, but reduced the proposed fine to $20,000. Scott applied for judicial review.

The Ontario Divisional Court dismissed the application.

Administrative Law - Topic 636

The hearing and decision - Evidence and proof - Statements made outside of hearing - Scott applied for judicial review of a decision of the Ontario Racing Commission that imposed a fine and upheld a proposal by the Director of the Commission to suspend his racing licences for 10 years - The issues to be decided included whether it was reasonable for the Commission to have concluded that a statement given by Scott to two investigators was voluntary - The Ontario Divisional Court concluded that the conclusion was reasonable, even though consideration of the voluntariness issue was not legally necessary - If voluntariness had to be established, the applicable standard would have been proof on the balance of probabilities, not proof beyond a reasonable doubt - Scott told the investigators that he had purchased the drug Aranesp for his uncle - The person from whom Scott had purchased the drug had recently been charged criminally respecting the distribution of illegal equine medication - When Scott identified his distributor, it was appropriate for one of the investigators to respond: "Do you understand that passing Aranesp to another person could be a criminal offence?" - The investigator was doing his duty - There was no fear of punishment or hope of advantage - The investigator simply did not believe that Scott had purchased the drug for that purpose - The Commission reasonably concluded that the warning did not constitute an improper inducement - Nor was there any oppressive conduct - Finally, the investigation was carried out appropriately, and it was reasonable for the Commission to conclude that no "dirty tricks" were used - The Commission heard Scott's evidence, along with that of the investigators, evaluated their credibility and found that Scott must have known that he was being investigated - See paragraphs 31 to 35.

Administrative Law - Topic 636

The hearing and decision - Evidence and proof - Statements made outside of hearing - Scott applied for judicial review of a decision of the Ontario Racing Commission that imposed a fine and upheld a proposal by the Director of the Commission to suspend his racing licences for 10 years - Scott asserted that, inter alia, the Commission erred in admitting an allegedly involuntary statement that he gave to the investigators - The Ontario Divisional Court held that s. 15 of the Statutory Powers Procedure Act was a complete response to the issue of the statement's admissibility - Section 15 rendered statements made by a party outside of the hearing admissible - Regardless of whether the statement would have been admissible in criminal proceedings, it was properly admissible before the Commission under the Act - See paragraphs 37 and 38.

Administrative Law - Topic 636

The hearing and decision - Evidence and proof - Statements made outside of hearing - Scott applied for judicial review of a decision of the Ontario Racing Commission that imposed a fine and upheld a proposal by the Director of the Commission to suspend his racing licences for 10 years - Scott asserted that, inter alia, the Commission erred in admitting a statement that he gave to the investigators as it was involuntary and therefore in violation of the common law confession rule - The Ontario Divisional Court rejected the assertion - Administrative proceedings were civil, not criminal in nature - The common law confession rules applied only to criminal or quasi-criminal proceedings - The Commission was not empowered to impose true penal consequences, rather it was an agent of the Crown established in order to "govern, direct, control and regulate horse racing in Ontario in any or all of its forms" (Racing Commission Act, s. 5) - In civil and administrative proceedings, an out of court assertion made by a party to the proceeding was admissible at the instance of the opposing party as an exception to the hearsay rule - Such a statement was properly understood as an "admission", not a "concession" - The proper approach to out-of-hearing statements made by a party to proceedings before the Commission was for the Commission to receive the statement as admissible evidence and make its determination at the hearing based on an assessment of its probative value in the context of all the other evidence - Here, Scott, although entitled, chose not to testify in order to dispute the truth of his statement - See paragraphs 37 to 41.

Administrative Law - Topic 636

The hearing and decision - Evidence and proof - Statements made outside of hearing - Scott applied for judicial review of a decision of the Ontario Racing Commission that imposed a fine and upheld a proposal by the Director of the Commission to suspend his racing licences for 10 years - Scott asserted that, inter alia, the Commission erred in admitting an allegedly involuntary statement that he gave to the investigators - The Ontario Divisional Court stated that Scott gave the statement under the compulsion of s. 18(4) of the Racing Commission Act and the Ontario Racing Commission Rules - The decision of British Columbia Securities Commission v. Branch and Levitt (S.C.C.) determined that the Charter required that both "use immunity" and "derivative use" immunity attach to the use in criminal proceedings, of compulsory statements taken in the regulatory context - Such statements could be relied upon and tendered in the regulatory proceedings themselves - Charter compliance was achieved by granting derivative use immunity where the evidence would expose the person to criminal proceedings - Here, there was no Charter issue because the Commission could not impose true penal consequences - Scott voluntarily entered into a thoroughly regulated industry and, in doing so, he freely accepted the industry's statutory and regulatory compulsions - He had, in that sense, already given consent as a condition of entering the field - Accordingly, there was no "voluntariness" requirement prior to admission of a confession made pursuant to a statutory compulsion to testify in a regulatory context - See paragraphs 42 to 44.

Administrative Law - Topic 9102

Boards and tribunals - Judicial review - Standard of review - Scott applied for judicial review of a decision of the Ontario Racing Commission that imposed a fine of $20,000 and upheld a proposal by the Director of the Commission to suspend his racing licences for 10 years - The Ontario Divisional Court held that the standard of review of the Commission's factual findings, including in relation to whether Scott's statement was voluntary and whether, based on the available evidence, Scott contravened the Rules of Standardbred Racing, was reasonableness - The penalty was also subject to review on a reasonableness standard, where the determination of appropriate penalties in the context of regulating the horse racing industry was firmly within the Commission's mandate and expertise - However, it was only factual findings and decisions within the Commission's specific jurisdiction to regulate horse racing in Ontario that attracted the reasonableness standard - Where the Commission exceeded its jurisdiction, the correctness standard applied - The correctness standard applied to questions of law for which the court had expertise exceeding that of the Commission, including questions involving the Charter and other general questions of law - Accordingly, the correctness standard applied to the Commission's decisions respecting the application of the common law voluntariness rule and the Charter to Commission proceedings, and to the standard of proof applicable in establishing voluntariness - See paragraphs 26 to 30.

Civil Rights - Topic 201

Life - General - Scott applied for judicial review of a decision of the Ontario Racing Commission that imposed a fine and upheld a proposal by the Director of the Commission to suspend his racing licences for 10 years - Scott asserted that, inter alia, the Commission violated his s. 7 Charter rights by admitting an involuntary statement that he gave to the investigators - The Ontario Divisional Court held that Scott's rights to life, liberty and security of the person were not engaged when he made his statement - He was neither detained nor under arrest - His liberty was not infringed - The right to silence and to counsel only arose on detention - They did not extend to pre-detention investigation - It was eminently reasonable for the Commission to conclude that "there was no indication of compulsion, actual or perceived", although later claimed - At the Commission's hearing, Scott's right to life under s. 7 was not in jeopardy - There was no possibility of imprisonment - Accordingly, his liberty interest was not engaged - Evidently, no security of the person or life interest was engaged in the context of the loss of a right to practice a trade or profession, together with the imposition of a civil fine enforceable only through the ordinary civil means - The imposition of an administrative sanction under the Racing Commission Act did not impose the kind of state-induced psychological stress that could trigger the guarantee of security of the person under s. 7 - The right to security of the person did not protect an individual from operating in the highly regulated context of horse racing for profit from the ordinary stress and anxieties that a reasonable person would suffer as a result of government regulation of that industry - The applicant was not charged with a true crime or a regulatory offence - He was simply subjected to discipline as a licensee under the Act, in a regulated industry that he voluntarily chose to enter - The possibility of revocation or suspension or of a significant fine was not sufficient to trigger the application of s. 7 - See paragraphs 45 and 46.

Civil Rights - Topic 641

Liberty - Limitations on - General - [See Civil Rights - Topic 201 ].

Civil Rights - Topic 651.2

Liberty - Limitations on - Right to practice one's profession - [See Civil Rights - Topic 201 ].

Civil Rights - Topic 1210

Security of the person - General - Denial of security - What constitutes - [See Civil Rights - Topic 201 ].

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Life, liberty and security of the person - [See Civil Rights - Topic 201 ].

Criminal Law - Topic 5331

Evidence and witnesses - Confessions and voluntary statements - Whether accused's statements and previous testimony subject to confession rules - [See third Administrative Law - Topic 636 ].

Gaming and Betting - Topic 635

Horse racing - Regulation - Judicial review of decisions - [See Administrative Law - Topic 9102 ].

Gaming and Betting - Topic 783

Horse racing - Punishments - Doping - Allegations were made that Scott had violated the Ontario Racing Commission Rules of Standardbred Racing by distributing drugs for which he did not have a license and by acquiring, being in possession of, and administering a performance enhancing drug (Aranesp) to a horse - The Director of the Ontario Racing Commission issued an order for immediate suspension of Scott's licenses and a proposed order to suspend them for 10 years and a $100,000 fine - The Commission upheld the Director's proposal, but reduced the fine to $20,000 - Scott asserted that the Commission exceeded its jurisdiction by failing to follow its own penalty guidelines which would have resulted in a one to five year suspension and a $5,000 fine - The Ontario Divisional Court affirmed the sentence - The Commission had a duty to exercise its power to impose a suspension and penalty in a manner that was in the public interest - That called for the Commission to apply its expertise in regulating the horse racing industry - Significant deference was called for - Regulatory sanctions imposed in the public interest were preventative in nature and prospective in application - The Commission properly considered that there was a significant need for general deterrence given the level of drug abuse in the industry - See paragraph 47.

Gaming and Betting - Topic 1845

Regulation - Boards and Commissions - Evidence - [See all Administrative Law - Topic 636 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 26].

Dunsmuir v. New Brunswick - see New Brunswick (Board of Management) v. Dunsmuir.

Gray v. Ontario Racing Commission, [2008] O.A.C. Uned. 173 (Div. Ct.), refd to. [para. 29].

R. v. Wigglesworth, [1987] 2 S.C.R. 541; 81 N.R. 161; 24 O.A.C. 321; 61 Sask.R. 105, refd to. [para. 43].

British Columbia Securities Commission v. Branch and Levitt, [1995] 2 S.C.R. 3; 180 N.R. 241; 60 B.C.A.C. 1; 99 W.A.C. 1, refd to. [para. 45].

R. v. Fitzpatrick (B.), [1995] 4 S.C.R. 154; 188 N.R. 248; 65 B.C.A.C. 1; 106 W.A.C. 1, refd to. [para. 43].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1, refd to. [para. 45].

R. v. Singh (J.) (2007), 369 N.R. 1; 249 B.C.A.C. 1; 414 W.A.C. 1; 2007 SCC 48, refd to. [para. 45].

Mussani v. College of Physicians and Surgeons (Ont.) (2003), 172 O.A.C. 1; 226 D.L.R.(4th) 511 (Div. Ct.), refd to. [para. 46].

Cartaway Resources Corp. et al., Re, [2004] 1 S.C.R. 672; 319 N.R. 1; 195 B.C.A.C. 161; 319 W.A.C. 161; 2004 SCC 26, refd to. [para. 47].

Counsel:

William R. Hunter, for the applicant;

Brendan Van Niejenhuis and Owen Rees, for the respondent.

This application was heard at Ottawa, Ontario, on October 9, 2008, by Cunningham, A.C.J.S.C., McCartney, R.S.J., and Hambly, J., of the Ontario Divisional Court. Cunningham, A.C.J.S.C., released the following judgment for the court on July 2, 2009.