



COURT OF APPEAL FOR ONTARIO

CITATION: Brooks v. Ontario Racing Commission, 2017 ONCA 833

DATE: 20171101

DOCKET: C62986

MacFarland, Hourigan and Pardu JJ.A.

BETWEEN

Jeffrey
    Brooks and

Bulletproof
    Enterprises

Applicants

(Appellants)

and

Ontario
    Racing Commission and

Director
    of the Ontario Racing Commission

Respondents

(Respondents)

David Moore and Kenneth Jones, for the appellants

Brendan van Niejenhuis and Benjamin Kates, for the respondents

Heard: October 24, 2017

On appeal from the order of the Divisional Court (Justice
    Harriet E. Sachs, Justice Elizabeth M. Stewart and Justice Laurence A. Pattillo),
    dated March 11, 2016 with reasons reported at 2016 ONSC 1136.

REASONS FOR DECISION

Introduction

[1]

The appellants, Bulletproof Enterprises (Bulletproof) and its owner
    Jeffrey Brooks, appeal the Divisional Courts dismissal of their judicial
    review application. For the reasons that follow, we dismiss the appeal.

Facts

[2]

The judicial review application was brought in relation to three
    decisions. First, the Director of the Ontario Racing Commission (ORC) issued
    a Suspension and Freezing Order against Mr. Brooks on the basis that his
    brother, David Brooks, had been involved in running Bulletproof, despite having
    been suspended by the ORC (the Freezing Order). Second, the ORC dismissed the
    appellants motion to quash or stay both the Freezing Order and the Notice of
    Proposed Order to Suspend Licences (the Notice of Proposed Order) and
    dismissed the motion in the alternative for particulars (the Procedural
    Decision). Third, after a hearing before a panel of the ORC, the panel made
    findings of wrongdoing against the appellants and ordered forfeiture of the
    frozen accounts, ten year licence suspensions, and a fine of $400,000 (the
    Merits Decision).

[3]

The Divisional Court dismissed the application for judicial review. Justice
    Sachs, writing for the court, found that although the Director did not have
    jurisdiction to grant the Freezing Order, the granting of that order did not
    require the Merits Decision to be set aside because ultimately the panel had
    the power to seize the funds subject to the Freezing Order. She further found
    that both the Procedural Decision and Merits Decision were reasonable and the
    manner in which the proceedings were conducted did not breach the appellants
    rights to natural justice.

Issues

[4]

The appellants advance three grounds of appeal in this court:

1)

The
    ORCs refusal to provide sufficient particulars amounted to a deprivation of
    notice and a breach of procedural fairness;

2)

The
    panels decision to allow Vice-Chair Donnelly to continue sitting as a hearing
    panel member after the expiration of his term of appointment resulted in the
    panel losing jurisdiction and the failure of the panel to permit the parties to
    make submissions on the issue was a breach of natural justice; and

3)

The
    panel made unsupported factual findings, failed to address contradictory
    evidence, and its reasons were so inadequate that they amounted to a breach of
    procedural fairness.

Analysis

(a)

Standard of Review

[5]

Before turning to the issues, there is the question of the appropriate
    standard of review. When considering an allegation of a breach of procedural
    fairness or natural justice, no standard of review analysis is necessary.
    Rather, the court is only required to analyze
whether
    the rules of procedural fairness or natural justice have been adhered to: see
1657575
    Ontario Inc. v. Hamilton (City)
,
2008 ONCA 570, 92 O.R. (3d) 374,
    at para. 23. Thus the issues of the adequacy of the notice and the decision not
    to invite sub
missions with respect to the panel members continuing
    tenure do not attract a standard of review.

[6]

The appellants submit that the failure of the panel to provide adequate
    reasons is an issue of fairness and there is therefore no applicable standard
    of review. We do not agree with that submission. In our view, this argument has
    been conclusively answered by the Supreme Court of Canada in
Newfoundland
    and Labrador Nurses Union v. Newfoundland and Labrador (Treasury Board)
,
2011
SCC 62,
[2011] 3 S.C.R. 708,
at
    para. 22:

It is true that the breach of a duty of procedural fairness is
    an error in law. Where there are no reasons in circumstances where they are
    required, there is nothing to review. But where, as here, there are reasons,
    there is no such breach. Any challenge to the reasoning/result of the decision
    should therefore be made within the reasonableness analysis.

[7]

The
adequacy of
    reasons is not a stand-alone basis for quashing a decision. The reasons must be
    read together with the outcome and assessed for whether the result falls within
    a range of possible outcomes. According to the Supreme Court, if the reasons
    allow the reviewing court to understand why the tribunal made its decision and
    permit it to determine whether the conclusion is within the range of acceptable
    outcomes, the Dunsmuir criteria are met: see
Newfoundland and
    Labrador Nurses Union,
at paras. 14,
    16.

[8]

The ORC has long been recognized as a
    tribunal with specialized expertise and its decisions are reviewed on a
    reasonableness standard: see
Ontario
    Harness Racing Horse Association v. Ontario Racing Commission
, 2012 ONSC 821,
290 O.A.C. 56,
at para. 46. There are no issues raised that are of
    central importance to the legal system as a whole or that are outside the ORCs
    specialized area of expertise, such that a standard of correctness is warranted
:
see
Dunsmuir
    v. New Brunswick
, 2008 SCC 9,
[2008] 1 S.C.R. 190,
at para. 60. Nor does any
    exceptional question of true jurisdiction arise: see
Alberta Teachers Assn. v. Alberta (Information &
    Privacy Commissioner)
, 2011 SCC 61,
[2011]
    3 S.C.R. 654,
at para. 33.

(b)

Reasons

[9]

We reject the submission that the panel made unsupported factual
    findings, failed to address contradictory evidence, and its reasons were so
    inadequate that they amounted to a breach of procedural fairness.

[10]

In
    our view, the panel made reasonable factual findings available to it on the
    evidentiary record. In this regard, it is important to note that the appellants
    called no evidence at the hearing. Their objection to the reasons amounts to
    nothing more than an assertion that the panel should have drawn different
    inferences from the evidence given by the ORCs witnesses. We are not satisfied
    that the conclusions drawn by the panel from the evidence were unreasonable.
    Moreover, reasons need not reference every piece of contradictory evidence. We
    are satisfied that the reasons of the panel adequately explain the decision
    made and its underlying analysis.

[11]

Here, the reasons allow this court to understand
    why the tribunal made its decision and the reasons together with the record
    enable this court to conclude that the outcome is within the range of
    acceptable outcomes.

(c)

Notice

[12]

With
    regard to the adequacy of notice, the appellants submit that the failure of the
    ORC to provide particulars of the allegation was in breach of the duty of
    fairness, as it prevented them from mounting a full defence. Specifically, they
    argue that they were not provided adequate particulars regarding the timing of
    the alleged misconduct. They also complain that the Notice of Proposed Order did
    not allege fraud but the panel ultimately found that they engaged in fraud.

[13]

We
    do not accept this submission. The Divisional Court correctly held that the
    particulars in the Notice of Proposed Order constituted sufficient notice, such
    that the appellants understood the case they had to meet. The evidence led at
    the hearing related directly to the particulars contained in the Notice of
    Proposed Order. Moreover, the wrongdoing alleged in the Notice of Proposed
    Order was directly connected to the eventual findings of the panel at the
    merits hearing.

[14]

With
    respect to the specific complaint regarding inadequate disclosure of the timing
    of the alleged misconduct, the time period in issue would have been clear to
    the appellants on receipt of the Notice of Proposed Order. The central
    allegation made by the ORC was that the appellants permitted David Brooks to be
    involved in Bulletproofs business despite the fact that he had not held a
    racing licence since the fall of 2007.  It would have been plain from that
    allegation that the pertinent time period was from the fall of 2007 onward.

[15]

With
    respect to the finding of fraud, while we agree that the ORCs language could
    be considered intemperate, there is nothing in this finding that should have
    taken the appellants by surprise. They knew that their honesty and integrity
    were at the forefront of the hearing;
the Notice of Proposed
    Order expressly indicated that their honesty and integrity were in issue
.
    They also knew that the central allegation against them was that they had
    surreptitiously permitted David Brooks to participate in their racing enterprise
    when he was not authorized to do so. The finding of fraud relates directly to
    that central allegation.

(d)

Jurisdiction

[16]

Next,
    the appellants submit that the panel lost jurisdiction since a members
    appointment term expired before the hearing on the merits commenced.

[17]

We
    disagree. In our view, this courts decision in
Piller v. Assn. of Ontario
    Land
Surveyors
, 160 O.A.C. 333 is dispositive of that submission.
Section
    4.3 of the
Statutory Powers Procedure Act
,
R.S.O. 1990,
    c. S.22 reads:

If the term of office of a member of a tribunal who
    has participated in a hearing expires before a decision is given, the term
    shall be deemed to continue, but only for the purpose of participating in the
    decision and for no other purpose.

Whether a hearing commences with preliminary motions,
    such that a member can be said to have participated is a question of
    statutory interpretation that is reviewable on a standard of reasonableness.
    The panels conclusion that the member could continue to sit was not
    unreasonable given this courts jurisprudence in
Piller
.

[18]

We
    find that there was no breach of natural justice by reason of the panels failure
    to hear submissions on the issue. The duty of fairness is flexible and
    variable, and depends on the circumstances of the particular case: see
Baker
    v. Minister of Citizenship and Immigration
, [1999] 2 S.C.R. 817, at para.
    22. In the present case, the terms of office of the panel members was a matter
    of public record. No complaint was made by any party regarding any panel member
    participating in the hearing. In these unique circumstances, where there was no
    objection, it was not a denial of natural justice to decline to invite
    submissions on the issue.

Disposition

[19]

The
    appeal is dismissed. The appellants shall pay the costs of the appeal and the
    motion for leave to appeal to the respondent in the all-inclusive amount of
    $20,000.

J.
    MacFarland J.A.

C.W.
    Hourigan J.A.

G. Pardu
    J.A.


