Friday, 16 August 2019 10:04

Judicial review decision for the 2017 Canadian Derby

Attached is the judicial review decision for the 2017 Canadian Derby. In summary, there were two applications for judicial review:

Rollingson Racing application

  1. Did the Appeal Tribunal have the required quorum when it issued its decision?
    1. Madam Ross concluded that the Appeal Tribunal’s decision regarding quorum met the standard of reasonableness and was upheld.
  2. Did the Appeal Tribunal err when it reversed the decision of the Board?
    1. Madam Ross Appeal Tribunal was satisfied that the Appeal Tribunal carefully considered and weighed the evidence of witnesses who appeared before it, and acted reasonably in reversing the decision of the Board of Stewards. The reasons for that reversal were intelligible and justifiable. The outcome, in her view, was acceptable and defensible in the context of the relevant facts and law.

Sycamore Stables

  1. Did the Appeal tribunal err when it applied rule 253 and failed to apply Rule 276(2)(a) of the Horse Racing Rules?
    1. Madam Ross concluded that it is unreasonable for the Appeal Tribunal to have disqualified Chief Know It All and to have relied on Rule 253 instead of Rule 276(2)(a) where it was only Double Bear's performance that Chief Know It All's interference impacted.

Based on the statutory provision above. Rule 3.24 of the Alberta Rules of Court, and the cited case law, Madam Ross  exercised her discretion to order that in the Horse Race that occurred at Northlands Park on August 19, 2017:

Double Bear finished first, Chief Know It All finished second, and Trooper John finished third.


 

Court of Queen's Bench of Alberta

Citation: Rollingson Racing Stables Ltd v Horse Racing Alberta, 2019 ABQB 632

Date: August 13, 2019
Docket: 1803 14772, 1803 15048
Registry: Edmonton

Between:
1803 14772

Rollingson Racing Stables Ltd, Rick Weist, Clayton Weist,
Randy Howg and Robertino Diodoro

Applicants

- and -

Horse Racing Alberta, Horse Racing Alberta Appeal Tribunal, Her Majesty the Queen in
Right of Alberta (as represented by the President of the Treasury Board and Minister of
Finance), and Harold W Veale Professional Corporation (operating as Sycamore Stables)

Respondents

AND

Between:
1803 15048

Harold W Veale Professional Corporation (operating as Sycamore Stables)

Applicant

- and -

Horse Racing Alberta Appeal Tribunal, Horse Racing Alberta,
Rollingson Racing Stables Ltd, Rick Weist, Clayton Weist,
Randy Howg, Robertino Diodoro and Riversedge Racing Stables Ltd

Respondents

 


Reasons for Judgment
of the
Honourable Madam Justice J.M. Ross


Introduction

[1] These two applications for judicial review relate to the same Canadian Derby, which was Horse Race 11 that occurred at Northlands Park on August 19, 2017 [the Horse Race]. Both applications challenge the decision of the Horse Racing Alberta Appeal Tribunal decision, dated June 30, 2018 [Tribunal Decision].

Background Facts

[2] The Applicants Rollingson Racing Stables Ltd, Rick Weist, Clayton Weist, Randy Howg and Robertino Diodoro [jointly, Rollingson Racing] own the thoroughbred racehorse named "Chief Know It All," which participated in the Horse Race.

[3] Harold W Veale Professional Corporation (operating as Sycamore Stables) [Sycamore Stables] owns the thoroughbred racehorse named "Double Bear," which also participated in the Horse Race.

[4] Riversedge Racing Stables [Riversedge Racing] owns the thoroughbred racehorse named 'Trooper John" that was also a participant in the Horse Race.

[5] The Horse Race had a purse of $150,000 to be shared among the winners of the race.

[6] At the end of the Horse Race, Chief Know It All won, while Double Bear and Trooper John were in dead heat (i.e. tied) for the second place position.

[7] After the race, however, the trainer of Double Bear made a claim of foul to the Board of Stewards, alleging interference by Chief Know It All.

[8] The Board of Stewards is authorized under the Rules Governing Horse Racing in Alberta [Horse Racing Rules] to "promptly investigate every objection or complaint properly made" by the owner, trainer or jockey of a participating horse: Part 3, Div 1, Rule 274(g); enabled under the Horse Racing Alberta Act, RSA 2000, c H-11.3, s 22 [HRA Act].

[9] The Board of Stewards denied the claim of foul. It held in the Daily Stewards' Report, dated August 19, 2017, that:

Trainer claim of foul #5 [i.e. Double Bear] on #4 [i.e. Chief Know It All] for possible interference coming out of the [...]. After reviewing the race, the decision of the [Stewards] was that there was incidental contact and when the #5 Horse hit the hind end of the #4 it turned the #4 into #5. Claim of Foul Disallowed.

[10] Sycamore Stables appealed the Stewards' decision to the Horse Racing Alberta Appeal Tribunal [Appeal Tribunal], seeking the reversal of the Stewards' conclusion, and requesting that the official results be changed to place Chief Know It All behind Double Bear.

[11] The Appeal Tribunal consisted of two members: Ms. Andrea Fugeman-Millar and Ms. Jill Mason. BoA members conducted the hearing of the appeal on October 20,2017, December 11, 2017 and April 16, 2018. The Appeal Tribunal thereafter reserved its decision.

[12] On April 23, 2018, the Minister of Finance, as the Minister responsible for the HRA Act, rescinded the appointment of Ms. Fugeman-Millar, as a member of the Appeal Tribunal, as well as her designation as the Chair of the Tribunal (Ministerial Order No. 06/2018). Subsequently, on April 25,2018, Ms. Jill Mason was appointed as the Chair (Ministerial Order No. 07/2018).

[13] On June 28,2018, the Minister of Finance issued Ministerial Order No. 13/2018, which provided "permission to [Ms. Fugeman-Millar] to participate in the delivery of decisions, including the preparation of written reasons for decision, in relation to appeals that were heard by the Appeal Tribunal while she was a member of the Appeal Tribunal." That permission expired on August 31, 2018.

[14] On July 4, 2018, the Tribunal Decision was sent by email to parties. The decision was signed on June 30,2018, and Ms. Fugeman-Millar was referred to as "co-chair at the time of the hearings."

[15] The Appeal Tribunal concluded:

The Appeal is allowed and the horse Double Bear did suffer an interference by Chief Know It All which caused the horse not to win first place. Since the horse finished in second place in a dead heat with the horse Trooper John, therefore in accordance with the rules, both horses shall be first place horses and Chief Know It All is disqualified from the race.

[16] In the within proceedings:

(i) Rollingson Racing seeks an order declaring the Tribunal Decision void and reinstating the Board of Stewards' decision that Chief Know It All did not commit any foul and won the race.

(ii) Sycamore Stables seeks an order or declaration that Double Bear finished first in the Horse Race, Chief Know It All finished second and Trooper John finished third.

Issues

[17] The following issues are to be resolved in this application:

In the judicial review application brought by Rollingson Racing:

1. Did the Appeal Tribunal have the required quorum when it issued its decision?
2. Did the Appeal Tribunal err when it reversed the decision of the Board of Stewards?

In the judicial review application brought by Sycamore Stables:

3. Did the Appeal Tribunal err when it applied Rule 253 and failed to apply Rule 276(2)(a) of the Horse Racing Rules

[18] The applicable standard of review will be addressed in relation to each issue.

Discussion

Issue 1: Did the Appeal Tribunal have the required quorum when it issued its decision?

Standard of Review

[19] Rollingson Racing argues that the question of whether the Appeal Tribunal issued its decision without quorum constitutes a "true question of jurisdiction," and should be governed by the correctness review standard: Dunsmuir v New Brunswick, 2008 SCC 9 at para 59, [2008] 1
SCR 190 [Dunsmuir].

[20] Sycamore Stables disagrees, and submits that the reasonableness review standard applies because true questions of jurisdiction only "arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter"
Dunsmuir at para 59.

[21] The Appeal Tribunal also supports reasonableness as the applicable standard of review, citing Spork v Ontario Securities Commission, 2014 ONSC 2467, paras 32-34; 47-48:

...How the Commission deals with the issue of appointment of commissioners to hearings within the context of fixed term appointments for commissioners is not a question of general importance to the legal system as a whole.

I am not persuaded that the interpretation of the statutory requirement for the composition of a panel for a sanctions hearing is of central importance to the legal system as a whole or constitutes an issue outside the expertise of the Commission.

I find that the standard of review for all issues on this appeal is reasonableness.

...

In the circumstances of this case the principle of audi alteram partem was fully met. Commissioner Carnwath, who was present at the merits hearing and at the sanctions hearing, made the decision with respect to sanctions. The parties were fully heard by the panel that ultimately made the order.

The decision on the issue of quorum did not result in a loss of jurisdiction to the Commission. It was a reasonable decision, which allowed the proceeding to continue in a just, expeditious, and cost-effective manner.

[22] On the distinction between the interpretation of a "home statute" and a true question of jurisdiction, Gascon J, in Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2018 SCC 31 at para 38, [2018] 2 SCR 230 [CHRC], recently wrote:

The difficulty with true questions of vires is that jurisdiction is a slippery concept. Where decision makers interpret and apply their home statutes, they inevitably determine the scope of their statutory power [Alberta (Information and Privacy Commissioner] v Alberta Teachers' Association, 2011 SCC 61 at para 34, [2011] 3 SCR 654]. There are no clear markers to distinguish between simple questions of jurisdiction (i.e., questions that determine the scope of one's authority) and true questions of vires (i.e., questions that determine whether one has authority to enter into the inquiry). Such imprecision tempts litigants and judges alike to return to a broad understanding of jurisdiction as justification for correctness review contrary to this Court's jurisprudence. As a result, the elusive search for true questions of vires may both threaten certainty for litigants and undermine legislative supremacy.

[23] Gascon J observed that no majority of the Supreme Court had recognized an example of a true question of jurisdiction in the 10 years since Dunsmuir was decided.

[24] Earlier, in West Fraser Mills Ltd v British Columbia (Workers' Compensation Appeal Tribunal), 2018 SCC 22 at para 124, [2018] 1 SCR 635, Brown J observed that, "in many cases, the distinction between matters of statutory interpretation which implicate truly jurisdictional questions and those going solely to a statutory delegate's application of its enabling statute will be, at best, elusive." See also, CHRC at para 111.

[25] I am not persuaded that an issue of quorum comes within the elusive category of a true question of jurisdiction. I agree with Sycamore Stables and the Appeal Tribunal that the reasonableness standard applies.

[26] The question of whether a quorum was in place at the time the Tribunal Decision was rendered is a separate issue from whether or not the Appeal Tribunal initially had the authority to decide horse racing matters under the HRA Act. The Appeal Tribunal is vested with the statutory authority "to make the inquiry" and decide horse racing matters in the province of Alberta. None of the parties in this application disputes this legal reality: Dunsmuir at para 59; DJM Brown and JM Evans, Judicial Review of Administrative Action in Canada, (Toronto: Canvasback, 1998) (loose-leaf), at 14-3 to 14-6; Olugbenga Shoyele, Standards of Review in Administrative Law: Legislated Approach to Judicial Review in Canada, 1st ed (Victoria, BC: Tellwell Talent Inc, 2018) at 88.

[27] The question of quorum is a question of law that is dealt with in section 23 of the HRA Act, which is the Appeal Tribunal's "home statute," as well as section 20 of the Interpretation Act, RSA 2000, c 1-8. It is not a question of law of central importance to the legal system as a whole or outside the expertise of the Appeal Tribunal: Spork, at paras 32-34.1 am satisfied that the quorum issue relates to the Appeal Tribunal's interpretation of its own statute, as well as a statute closely connected to its function, and that the reasonableness standard of review applies: Dunsmuir at para 54; Goertzen v Alberta (Horse Racing Alberta Act, Appeal Tribunal), 2012 ABQB 760 at para 41, 552 AR 375.

[28] Under a reasonableness standard, the reviewing court considers the process and outcome of the decision under review:

In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility with the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

Dunsmuir at para 47.

[29] The reviewing court considers both the reasons given by the administrative decision maker, and reasons that could be given: Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 para 12, [2011] 3 SCR 708 [Newfoundland Nurses].

Statutory Provisions

[30] The HRA Act provides in subsections 23(1) and (9):

23( 1) The Minister shall

(a) appoint an Appeal Tribunal consisting of not more than 3 persons to hear appeals under this Act, and

(b) designate one of the members of the Appeal Tribunal as the chair of the Appeal Tribunal.

(9) The quorum of the Appeal Tribunal is 2 members of the Appeal Tribunal.

[31] The Interpretation Act provides in subsections 20(4), (7) and (8):

20(4) If the appointment of a person by or under the authority of an enactment is terminated, revoked or rescinded effective on a specified day, that termination, revocation or rescission, whether or not that person holds office for a term of office that is to conclude, expire or otherwise come to an end on an expressed day, is deemed to be effective immediately on the beginning of the specified day.

(7) Unless otherwise expressed in an enactment, if

(a) a person who is appointed by or under the authority of an enactment to an office is engaged in an investigation, a hearing, a review, an appeal or a similar undertaking or in carrying out some other duty or function provided for under an enactment, and

(b) that appointment expires or otherwise ends before that person concludes the investigation, hearing, review, appeal or undertaking or the carrying out of the duty or function,

that person, unless otherwise directed by the person who has the authority to make the appointment referred to in clause (a) or the Minister responsible for the enactment under which the appointment was made, remains empowered to conclude that investigation, hearing, review, appeal or undertaking or the carrying out of that duty or function, including the making of any recommendation, report, determination or other conclusion that forms a part of that investigation, hearing, review, appeal, undertaking, duty or function.

(8) Notwithstanding subsections (6) and (7), in the case of an appointment referred to in subsection (4) that is terminated, revoked or rescinded, the person whose appointment is terminated, revoked or rescinded is not, at any time after the termination, revocation or rescission becomes effective, eligible to exercise any power, duty or function under subsection (6) or (7) unless expressly permitted to do so by the person who terminated, revoked or rescinded the appointment or by the Minister responsible for the enactment under which the termination, revocation or rescission was effected.

Tribunal Decision

[32] The quorum issue arose after the hearing, and the Appeal Tribunal did not hear submissions on this point. Their brief reasons are found at the conclusion of the written decision:

On the numerous dates of this Appeal, the subject appeal was heard by two members, one of them being Andrea Fugeman-Millar. Although Ms. Fugeman- Millar is no longer a member of the Tribunal, she is authorized pursuant to Section 20 of the Interpretation Act (RSA 2000 C 1-8) to conclude the hearing. Accordingly, Ms. Fugeman-Millar continued to participate on the panel to render the decision.

Positions of the Parties

[33] Rollingson Racing observes that Ms. Fugeman-Millar's appointment was rescinded by the Minister shortly after the hearing concluded, and the permission granted to her by the Minister, to participate in the delivery of decisions, was provided over two months after the rescission, and only two days before the decision was signed.

[34] Rollingson Racing submits that during the period from April 23, 2018 to June 28,2018 the quorum requirement for the Appeal Tribunal's ongoing adjudication and decision-making process was not met. Further, after June 28, 2018, the quorum requirement was still not met because Ms. Fugeman-Millar was not a member of the Appeal Tribunal, She had been given permission "to participate in the delivery of decisions...in relation to appeals heard by the Appeal Tribunal while she was a member of the Appeal Tribunal", but her membership was not continued or reinstated. Rollingson Racing submits that the result of the loss of quorum is that the proceedings were "aborted", citing Smith v Alliance Pipeline Ltd, 2011 SCC 7 at para 16, [2011] 1 SCR 160 [Alliance Pipeline].

[35] Sycamore Stables observes that both decision-makers in this case participated in hearing the evidence and arguments in the appeal. There was absolute compliance with the principle of natural justice that "he who hears must decide." Further, the Appeal Tribunal had ample time between the conclusion of the hearing on April 16, 2018 and the rescission of Ms. Fugeman-Millar's appointment on April 23, 2018 to consider the evidence and matters of credibility. Subsequently, the Ministerial Order of June 28, 2018 gave Ms. Fugeman-Millar all the powers that were necessary to conclude her responsibilities.

[36] The Appeal Tribunal states that there is no indication in this case that quorum was lost at the relevant times, when the Appeal Tribunal was engaged in the adjudicative process during the hearing and immediately thereafter, nor when it issued written reasons for decision. Further, quorum may not be required to formally signify and communicate the decision: Dennis v Adams Lake Band, 2011 FCA 37 at para 18,419 NR 384 [Adams Lake].

[37] The Minister of Finance submits that a guiding principle and objective of subsection 20(8) of the Interpretation Act is the avoidance of expense and delay that would result if it became necessary to reconstitute an appeal tribunal and start again. The Minister contends that the Appeal Tribunal's quorum was preserved by the Ministerial Order of June 28,2018.

Analysis

[38] The Minister's Order of June 28,2018, issued pursuant to subsection 20(8) of the Interpretation Act, expressly permitted Ms. Fugeman-Millar to participate in the delivery of decisions. Under other circumstances, subsection 20(7) of the Interpretation Act would have provided Ms. Fugeman-Miilar with authority to conclude the appeal, however subsection 20(8) specifies that persons whose appointments have been rescinded are not eligible to exercise any power, duty or function under subsection (7) unless expressly permitted to do so by the person who rescinded the appointment. The Minister's Order provided that express permission.

[39] The Minister's Order distinguishes this case from Alliance Pipeline where the Arbitration Committee lost its quorum when a member was appointed to the Court of Queen's Bench, and there was no reliance on section 20 of the Interpretation Act.

[40] Rollingson Racing argues that the adjudication and decision-making process was ongoing from the rescission of Ms. Fugeman-Millar's appointment on April 23,2018 until the Minister's Order of June 28, 2018. There is no evidence on the record that this was so. Evidence and argument were presented at the hearing during 3 days over a period of almost 6 months. Another week passed following the conclusion of the hearing on April 16,2018 before the rescission of Ms. Fugeman-Millar's appointment. The Appeal Tribunal had ample opportunity to assess the evidence, consider arguments, and reach a mutual decision. Subsequently, the Minister's Order of June 28, 2018 gave Ms. Fugeman-Millar the power to participate in delivery of the decision. In the absence of evidence, this Court presumes the regularity of the Appeal Tribunal's decision-making process: Lethbridge (City of) v Daisley, 2000 ABC A 79 at para 23,250 AR 365 [Daisley]; Szybunka v Edmonton (Police Service), 2018 ABQB 164 at para 57,44 Admin LR (6th) 309.

[41] As to whether the Minister's Order of June 28, 2018 restored the Appeal Tribunal's quorum, although it did not reinstate Ms. Fugeman-Millar as a member, I conclude that the Appeal Tribunal could reasonably conclude that subsection 20(8) of the Interpretation Act and the Minister's Order had that effect.

[42] The intention of subsections 20(7) and 20(8) of the Interpretation Act is clearly to ensure that, in appropriate circumstances, the expiry of a tribunal member's appointment does not result in the need to recommence a hearing. Section 10 of the Interpretation Act provides that "[a]n enactment shall be construed as being remedial, and shall be given the fair, large and liberal construction and interpretation that best ensures the attainment of its objects." This approach was taken by the Ontario Court of Appeal in interpreting statutory provisions regarding the authority of a member of a disciplinary hearing whose term of office had expired: Piller v Assn of Land Surveyors (Ontario), (2002) 160 OAC 333,43 Admin. LR (3d) 151 [Piller]. The issue in that case was whether the hearing had "commenced" or whether the member had "participated" in the hearing, where oral evidence had not yet been heard, although preliminary steps had been taken. The Ontario Court of Appeal held that the differently worded provisions of the Surveyors Act and the Statutory Powers Procedure Act should be liberally construed, and that the hearing did not have to start anew under either provision.

[43] The Ontario Court of Appeal applied Piller in Brooks v Ontario Racing Commission, 2017 ONCA 833 [Brooks], rejecting an argument that a panel of the Ontario Racing Commission had lost jurisdiction where a member's appointment term expired before the hearing on the merits commenced. The Statutory Powers Procedure Act under consideration in that case provided that the member's "term shall be deemed to continue, but only for the purpose of participating in the decision and for no other purpose": Brooks at para 17.

[44] While subsections 20(7) and (8) of the Interpretation Act do not explicitly continue the term of appointment of a member, they allow the member to carry out the duties or functions necessary to conclude a matter, and the Minister's Order in this case expressly permitted Ms. Fugeman-Millar to participate in the delivery of decisions in relation to appeals that were heard while she was a member of the Appeal Tribunal. The Interpretation Act and orders under it provide that a tribunal member whose term has ended continues to function as a member, in relation to an ongoing proceeding. The Appeal Tribunal could reasonably conclude that a tribunal member who is acting under this authority continues to fulfil quorum requirements for
the subject proceeding. This interpretation is supported by the purpose of the Interpretation Act provisions, by the requirement for a "fair, large and liberal construction and interpretation", and by the Ontario Court of Appeal decisions in Piller and Brooks. The difference in wording of the Ontario and Alberta statutory provisions does not call for a different result. The legislation pursues the same purpose of ensuring that hearings do not have to be started again, through the same mechanism of permitting former members to continue to participate until the conclusion of a proceeding.

[45] I conclude that the Appeal Tribunal's decision regarding quorum meets the standard of reasonableness.

Issue 2: Did the Appeal Tribunal err when it reversed the decision of the Board of Stewards?

Standard of Review

[46] The Appeal Tribunal's reversal of the Board of Stewards' decision raises potential issues regarding the Tribunal's selection of the standard of review to be applied by the Appeal Tribunal when reviewing the Stewards' decision, and the Appeal Tribunal's conclusion on the merits that the Stewards' decision should be reversed. The selection of the standard of review is a legal issue that depends in large part on the interpretation and context of the HRA Act. The application of the standard of review involves the assessment and weighing of evidence. All parties agree that the applicable standard of review by this Court regarding both of these issues is reasonableness. I concur.

Statutory Provisions

[47] The HRA Act provides, in sections 24, 26 and 28(1):

24 Where a racing official makes a ruling or gives a direction, a person affected by that ruling or direction may appeal that ruling or direction to the Appeal Tribunal.

26(1) When the Appeal Tribunal hears an appeal, the Appeal Tribunal may, by order, do one or more of the following:

(a) dismiss the appeal;
(b) allow the appeal and give such directions, if any, that the Appeal Tribunal considers appropriate in the circumstances;
(c) vary the decision;
(d) prescribe the terms and conditions to which its order is subject;
(e) make any other decision that in the opinion of the Appeal Tribunal is in the best interests of horse racing...

...

(3) Notwithstanding subsection (1), the Appeal Tribunal does not have the authority to order that a rule made under this Act be repealed, amended or otherwise varied.

...

28(1) For the purposes of conducting appeals before the Appeal Tribunal,

(a) the chair and the other members of the Appeal Tribunal have the same power as is vested in the Court of Queen's Bench for the trial of civil actions

(i) to summon and enforce the attendance of witnesses,
(ii) to compel witnesses to give evidence on oath or otherwise,
(iii) to compel witnesses to give evidence in person or otherwise, and
(iv) to compel witnesses to produce any record, object or thing that relates to the matter being heard...

Tribunal Decision

[48] The Tribunal Decision reads, in part, as follows:

The Tribunal listened to witnesses and argument from the Appellant, the Intervenor and the Respondent and watched the video of the race over 100 times. The decision is rendered as follows:

Issue No 1 & 2:

1. Was the horse Chief Know It All "clear" when it crossed toward the path of the horse. Double Bear, on the rail of the track?

2. Did Double Bear "hit" the hindquarters of Chief Know It All?

...

Therefore, Mr. Rico Walcott, Jockey of Chief Know it All explains that the term "clear" means "a horse length clear before you can come across."

...

Therefore, Mr. Walcott, a very successful jockey, says that he did not see the horse on the rail even when it hit his horse. This is hard to believe given the video tape shows the horses almost side by side at the time of contact. However, Mr. Walcott defined the word "clear" in his mind, that of a successful jockey, in terms of the Rule 240(t) which refers to the word "clear." Again, Rule 240(t) During the Race, which states: After the start of a race, when clear, a horse may be taken to any part of the course." It is evident from the video that the horse Chief Know It
All was not clear when his jockey, Mr. Walcott, crossed him over in towards the rail.

...

The critical foul is [Chief Know It All] moving into the path of Double Bear who was on the rail without being "clear" and thereby clearly altering the finish of the race. It is a miracle that the horses did not crash and fall after this movement of the horse by Mr. Walcott, the jockey of Chief Know it All.

...

The statement made by [Mr. Robert Noda, one of the experts qualified by the Tribunal] that the horse, Double Bear, was in a precarious place on the rail is not relevant because Mr. Noda acknowledges that Double Bear was beside Chief Know It All and his jockey "must" have known he was there.

...

In conclusion, with respect to issues 1 and 2, the horse Chief Know It All made contact with the inside rail horse Double Bear. Further, at the same time Chief Know It All was moving toward the rail and his jockey, on the balance of probabilities, must have known that Double Bear was already beside his horse, thereby making a foul on Double Bear for not making the movement to the rail when Chief Know It All was clear of the horse, Double Bear.

Issue No. 3 Was the outcome of the race altered?

Mr. Cone, the trainer of Double Bear stated under Oath that without the foul against his horse Double Bear "I think he would have won the race." Possibly every trainer believes this about his horses. However, both of the experts also agreed that the outcome of the race was altered.

...

Therefore, with respect to Issue no. 3, based upon the evidence provided in the hearings, and on the balance of probabilities, the horse Double Bear was fouled and the outcome of the race was altered.

...

Issue No. 4: Has the Tribunal paid deference to the Stewards initial decision in coming to a decision in this Appeal Hearing?

The Tribunal has previously made reference to this issue in the case of Landry v Horse Racing Alberta - October 18,2017 at pg. 21 the Tribunal stated:

Therefore, the judges and stewards of the race will be allowed to present evidence before the Tribunal and the Tribunal will pay deference to the decisions of the stewards and the judges of the race.

The standard of review of the decision of the judges and stewards of the race is reasonableness as stated in the case of Dunsmuir v New Brunswick [2008] 1 S.C.R. 190, para 46-49...

...

In applying the principles of reasonableness as a deferential standard, the Tribunal has listened carefully to the evidence of the steward, Mr. Armstrong, and the expert, Mr. Noda and also the jockey Mr. Walcott provided by the Respondent representing Horse Racing Alberta, and thereby representing the judges/stewards decision. Deference to their decision was made until it was unreasonable to continue with their decision. Evidence given by these witnesses either did not support the decision made by the judges/stewards or directly contradicted their
decision. Further, reasonableness dictates listening to other participants and experts regarding this race and their evidence was well supported by the videos of the race and contradicted the decision of the stewards/judges.

Parties' Positions

[49] Rollingson Racing argues that the Appeal Tribunal failed to have regard to all of the evidence when it made no comment on the evidence that Dane Nelson, an experienced jockey who was the rider of Double Bear, failed to "clearly report a claim of foul to the outrider."

[50] Further, Rollingson Racing contends that the Appeal Tribunal did not give appropriate deference to the Stewards' decision, given the relative expertise of the Stewards as compared with the Appeal Tribunal.

[51] Sycamore Stables responds that the Tribunal Decision transparently indicates the Tribunal reviewed all of the evidence before it as it "made specific references to portions of the evidence given by various witnesses" and specifically rejected or accepted the evidence of the witnesses as the Appeal Tribunal deemed appropriate.

[52] Sycamore Stables submits that although the outrider testified that nobody made a foul claim through him, he acknowledged "a lot of hollering going on between" the rider of Chief Know It All and the rider of Double Bear; and that in any event, there is no doubt that the trainer of Double Bear made a claim of foul. As such, the Appeal Tribunal did not ignore crucial evidence.

[53] In summary. Sycamore Stables maintains that the Appeal Tribunal deferred to the decision of the Board of Stewards, but based on the evidence before it, including the videos of the race, the Appeal Tribunal found the Stewards' decision to be unreasonable.

Analysis

[54] The Appeal Tribunal identified reasonableness as the applicable standard of review for the Board of Stewards' decision. As noted by the Appeal Tribunal, this standard was adopted in a preliminary decision on procedural issues in Landry v Horse Racing Alberta - October 18, 2017. The reasonableness standard was again adopted, following a review of the law and the statutory regime under the HRA Act, in the final decision in Landry v Horse Racing Alberta - March 6, 2019. The reasonableness standard respects the relative expertise of the Stewards, as compared to the Appeal Tribunal, and the Stewards' advantageous position of watching the race as it happened.

[55] The parties to this judicial review application agree that the reasonableness standard of review applied to the Appeal Tribunal's review of the Stewards' decision. The issues raised relate to the application of that standard.

[56] Regarding the lack of comment by the Appeal Tribunal on the evidence that Mr. Nelson failed to report a claim of foul to the outrider, I have concluded that nothing turns on that silence. It is clear that the trainer of Double Bear made a claim of foul against Chief Know It All. Administrative decision-makers "do not have to consider and comment upon every issue raised by the parties in their reasons": Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 53, [2013] 2 SCR 559; citing Construction Labour Relations v Driver Iron Inc, 2012 SCC 65 at para 3, [2012] 3 SCR 405; Newfoundland Nurses at para 25.

[57] As to the requirement for deference, the Appeal Tribunal clearly expressed in its reasons that the critical basis for its determination that the Board of Stewards' decision was unreasonable was that evidence given by the witnesses "representing the judges/stewards decision ... either did not support the decision made by the judges/stewards or directly contradicted their decision". Further, evidence of other witnesses and experts "was well supported by the videos of the race and contradicted the decision of the stewards/judges." The Appeal Tribunal reviewed the evidence of the witnesses and indicated why it accepted or rejected evidence. The Appeal Tribunal is empowered under the HRA Act to hear evidence, and no objection was taken on this application to the evidence that they heard. Clearly, their application of the reasonableness standard of review appropriately took place in the context of that evidence.

[58] 1 am satisfied that the Appeal Tribunal carefully considered and weighed the evidence of witnesses who appeared before it, and acted reasonably in reversing the decision of the Board of Stewards. The reasons for that reversal were intelligible and justifiable. The outcome, in my view, is acceptable and defensible in the context of the relevant facts and law.

Issue 3: Did the Appeal Tribunal err when it applied Rule 253 and failed to apply Rule 276(2)(a) of the Horse Racing Rules?

Standard of Review

[59] Regarding the issue of the application of Rule 253 and not Rule 276(2)(a) of the Horse Racing Rules, the issue raised on judicial review has been framed by the Applicant Sycamore Stables as: which of Rule 253 or Rule 276(2)(a) ought to have been selected by the Appeal Tribunal for application in the appeal before it? This issue turns on the interpretation of the Rules, which is a question of law that is reviewable on the reasonableness standard: Edmonton (City) V Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47 at paras 22-24, [2016] 2 SCR 293.

Rules Provisions

[60] Rules 253 and 276(1) and (2) of the Horse Racing Rules provide:

253 Effect of disqualified horse ahead of dead heat

If a horse finishing in front of a dead heat is disqualified, the horses that finished in the dead heat are to be considered to have finished the race in a dead heat for the position the disqualification places them, but a win race record may not be recorded for a standardbred race horse.

276 Decision by judges/stewards board

(1) The judges/stewards board may:

(a) determine if a foul was wholly or partly caused by a jockey, driver, or a horse;

(b) decide to disqualify if, in the opinion of the judges/stewards board, the foul altered the finish of the race, regardless of whether the foul was accidental, willful or the result of careless riding or driving;

(c) determine the extent of disqualification in the case of a foul or other violation of these rules;

(d) determine the validity of an objection.

(2) The judges/stewards board may

(a) place the offending horse behind the horse or horses that, in their judgment, were interfered with;

(b) place the offending horse last in the field;

(c) discipline the jockey or driver.

(3) If a horse is disqualified under this rule, every horse in the same race entered by the same trainer, or belonging to the same owner, may at the direction of the judges/stewards board, also be disqualified.

(4) The judges/stewards board may in accordance with these rules, revoke,
suspend or add to or vary the conditions of any licence.

Tribunal Decision

[61] Having concluded that "Double Bear was fouled and the outcome of the race was altered", the Appeal Tribunal continued:

Therefore, with respect to Issue no. 3, based upon the evidence provided in the hearings, and on the balance of probabilities, the horse Double Bear was fouled and the outcome of the race was altered. In accordance with Rule 253 (g) Effect of disqualified horse ahead of a dead heat:

If a horse finishing in front of the dead heat is disqualified, the horses that finished in the dead heat are to be considered to have finished the race in a dead heat for the position the disqualification places them...

Therefore, in accordance with Rule 253 (g) the horses that placed 2nd in a double heat are now placed first in a dead heat. [Counsel for the Owner of Double Bear] raised the issue of seeking an exception to this rule, however, this rule specifically addresses this situation of a horse being disqualified in first place - which is the case here - and having the horses in second place move up together. The Rule is absolutely specific to this situation, and the Tribunal must apply it accordingly.

Therefore, due to the disqualification of Chief Know It All, and the application of Rule 253(g), both horses. Double Bear and Trooper John, in the dead heat for second place move up to first place in a dead heat.

...

Conclusion

The Appeal is allowed and the horse Double Bear did suffer an interference by Chief Know It All which caused the horse not to win first place. Since the horse finished in second place in a dead heat with the horse Trooper John, therefore in accordance with the rules, both horses shall be first place horses and Chief Know It All is disqualified from the race.

Parties' Positions

[62] Sycamore Stables, the owner of Double Bear, applies to quash the portion of the Tribunal Decision that applied Rule 253 to award first place to both Double Bear and Trooper John, Sycamore Stables seeks an order directing the Appeal Tribunal to apply Rule 276(2)(a) such that: "Double Bear finished first in the Race, [Chief Know It All] finished second and Trooper John finished third."

[63] Sycamore Stables argues that there is no evidence that Chief Know It All interfered with Trooper John during the Race, no claim of foul was made regarding Trooper John, and consequently, it is improper to move both Double Bear and Trooper John together into first place position. The Appeal Tribunal specifically found that Chief Know It All interfered with Double Bear, and that interference "caused the horse [i.e. Double Bear] not to win first place". This finding confirms that it was Double Bear that took all the interference caused by Chief Know It All. As such, the application of Rule 253 to this scenario. Sycamore Stables submits, is "not only absurd but is also unfair and inequitable."

[64] Horse Racing Alberta, which is the regulatory body responsible for administering the legislation governing horse racing and regulating the industry, and Riversedge Racing, the owner of Trooper John, both disagree with the formulation of the issue as a choice between Rule 253 and Rule 276(2)(a). They both submit that the issue hinges on the Appeal Tribunal's decision to disqualify.

[65] Horse Racing Alberta submits that the Appeal Tribunal erred in disqualifying Chief Know It All. Disqualification is the harshest possible approach that the Appeal Panel could have taken. It is equivalent to placing Chief Know It All last in the race, under Rule 276(2)(b), rather than behind the horse he fouled, under Rule 276(a). As the harshest penalty, it should be reserved for the worst case. This was not the worst case, as the Appeal Tribunal did not find intent to foul or intent to harm.

[66] However, Horse Racing Alberta submits that splitting the "dead heat" is unwarranted. It contends that Rule 253 is "the clear rule to apply," and ignoring this dead heat rule will be "contrary to the best interest of horse racing in Alberta."

[67] Riversedge Racing submits that deference is owed to the Appeal Tribunal's choice of sanction, in this case the choice to apply the sanction of disqualification. That decision was reasonable. Once that decision was made, the consequences of disqualification, including Rule 253, apply. There is no discretion in Rule 276(2) to relieve against the application of Rule 253.

[68] Rollingson Racing submits that the Appeal Tribunals decision to disqualify, or place Chief Know It All last in the race, was unreasonable, as no other horse claimed foul in the race, and there was no evidence nor any submissions by any party to the appeal that Chief Know It All should be placed last. If Rule 253 is applied, Rollingson Racing submits that Chief Know It All would be placed third.

Analysis

[69] It is common ground among the parties to the Sycamore Stables application that the Appeal Tribunal had discretion regarding the outcome of the Horse Race, following its decision that there had been interference. There was discretion to determine whether Chief Know it All should be disqualified or discretion to apply Rule 253 or Rule 276(2)(a) (or potentially both).

[70] The Appeal Tribunal did not acknowledge that it was exercising discretion, regarding either its decision that Chief Know It All should be disqualified or that Rule 253 should be applied. It did not refer to the discretion clearly given to the judges/stewards in Rule 276(l)(b) which provides that the "judges/stewards board may...decide to disqualify if, in the opinion of the judges/stewards board, the foul altered the finish of the race, regardless of whether the foul was accidental, wilful or the result of careless riding or driving" {emphasis added). It did not refer to the alternative consequences in Rule 276(2)(a) and (b), nor acknowledge that the effect of disqualification was to select the more extreme consequence of placing Chief Know It All last in the Horse Race. In fact, the Appeal Tribunal did not refer to Rule 276(2) at any point in its decision; not even when listing provisions from the Horse Racing Rules under the heading "Applicable Law".

[71] To the contrary, rather than acknowledging any discretion regarding the consequences of its findings, the Tribunal Decision indicates that both disqualification and the application of Rule 253 follow automatically from its findings that "based upon the evidence provided in the hearings, and on the balance of probabilities, the horse Double Bear was fouled and the outcome of the race was altered." This ignores the discretion given by the Horse Racing Rules to the judges/stewards, and by section 26(1) of the HRA Act to the Appeal Tribunal.

[72] The failure to provide any reasons for the exercise of a discretionary power, or even to acknowledge that the Appeal Tribunal was exercising a discretionary power, means that the Tribunal Decision lacks justification, transparency, and intelligibility. It is also my view that the outcome, that Chief Know It All was disqualified and placed last in the Horse Race, is not within the range of possible, acceptable outcomes that are defensible in respect of the facts and the law.

[73] Only Riversedge Racing suggests that the Appeal Tribunal's decision to disqualify was reasonable, and, while they call for deference to a discretionary decision, they do not point to any express indication by the Appeal Tribunal that it was exercising a discretionary power, nor any factors that would justify this discretionary decision. All of the factors that might be considered, do not suggest that the more extreme consequence would be justified. There was no intent to foul or intent to harm. Only one horse. Double Bear, was interfered with. While the outcome of the Horse Race was affected, this was just in relation to the relative positions of the horse that suffered the interference and the horse that caused it.

[74] Horse Racing Alberta submits that, while the Appeal Tribunal should not have disqualified Chief Know It All, it was correct to apply Rule 253. This is inconsistent with the express wording of Rule 253, which applies if "a horse finishing in front of the dead heat is disqualified'' (emphasis added). Horse Racing Alberta submits that Rule 253 is the "clear rule to apply", similar to the Appeal Tribunal's holding that the Rule should be applied because it "is absolutely specific to this situation".

[75] Rule 253 specifically applies only if the horse ahead of a dead heat is disqualified, and Horse Racing Alberta agrees that it was unreasonable to disqualify Chief Know It All. If Chief Know It All is not disqualified, Rule 276(2)(a) is specific to this situation, that the offending horse is placed "behind the horse or horses that... were interfered with".

[76] Horse Racing Alberta submits that "ignoring" the dead heat Rule would be contrary to the best interest of horse racing. But it does not ignore the Rule to restrict its application to the circumstances described in the Rule - where the horse in front is disqualified. Further, applying Rule 253, in this case, means ignoring Rule 276(2)(a).

[77] Rule 253 does not contemplate a circumstance in which it is found that one of the horses in a dead heat is there only due to interference by another horse. That is the situation here. The Appeal Tribunal's finding of fact is clear: "Double Bear [suffered] an interference by Chief Know It All which caused the horse not to win first place." In other words. Trooper John would have been behind Double Bear were it not for the interference by Chief Know It All. Rule 253 presumes the normal situation where racing horses are in "dead heat" naturally, because they are running competitively and not because one horse has suffered an interference.

[78] In the result, I conclude that it is unreasonable for the Appeal Tribunal to have disqualified Chief Know It All and to have relied on Rule 253 instead of Rule 276(2)(a) where it was only Double Bear's performance that Chief Know It All's interference impacted. The Appeal Tribunal's choices to disqualify and apply Rule 253 lack justification and intelligibility; and do not fall "within a range of possible, acceptable outcomes which are defensible in respect of the facts and law": Dunsmuir at para 47.

Disposition

[79] The judicial review application of Rollingson Racing is denied.

[80] The judicial review application of Sycamore Stables, in Docket #1803 15048, is granted.

[81] Section 27 of the HRA Act provides, inter alia:

(2) A decision, order, directive, ruling or proceeding of the Appeal Tribunal may be questioned or reviewed by way of an application for judicial review seeking an order in the nature of certiorari or mandamus if the originating notice is filed with the Court of Queen's Bench ...

(3) The Court of Queen's Bench may, in respect of any application under subsection (2),

(a) determine the issues to be resolved on the application... [emphasis added].

[82] In Giguere v Chambre des notaires du Quebec, 2004 SCC 1 at para 66, [2004] 1 SCR 3, Deschamps J (dissenting) wrote:

A court of law may not substitute its decision for that of an administrative decision-maker lightly or arbitrarily. It must have serious grounds for doing so. A court of law may render a decision on the merits if returning the case to the administrative tribunal would be pointless: Guindon, supra; Guilde, supra. Such is also the case when, once an illegality has been corrected, the administrative decision-maker's jurisdiction has no foundation in law: Guilde, supra. The courts may also intervene in cases where, in light of the circumstances and the evidence in the record, only one interpretation or solution is possible, that is, where any other interpretation or solution would be unreasonable: Matane (Ville de) v. Fratemite des policiers etpompiers de la Ville de Matane inc., 1987 CanLII 278 (QC CA), [1987] RJ.Q. 315 (C.A.)- It is also accepted that a case may not be sent back to the competent authority if it is no longer fit to act, such as in cases where there is a reasonable apprehension of bias: Guindon, supra; Ordre des aiidioprothesistes dii Quebec v. Chanteur, 1996 CanLII 6273 (QC CA), [1996] R.J.Q. 539 (C.A.); Transformateiirs Philips, supra; Guilde, supra.

[83] That decision and approach was adopted in Telus Communications Inc v Telecommunications Workers Union, 2014 ABCA 199 at para 35,575 AR 325, where the Alberta Court of Appeal said:

The parties agree that a reviewing court must quash the decision of an administrative tribunal if it is unreasonable. Once a reviewing court determines that an administrative body has rendered an unreasonable decision, the matter must, in theory, be sent back for a rehearing. However, the court may issue a decision on the merits if returning the case to the administrative tribunal would be pointless: Gigiiere v Chambre des notaires dii Quebec, 2004 SCC 1 (CanLII) at paras 65-66, [2004] 1SCR3.

[84] It is my conclusion that sending this issue back to a newly constituted Appeal Tribunal would be pointless. Disqualifying Chief Know It All and applying Rule 253 in the context of the factual findings of the original Appeal Tribunal would be unreasonable. Rule 276(2)(a) is the applicable Rule in these circumstances.

[85] Based on the statutory provision above. Rule 3.24 of the Alberta Rules of Court, and the cited case law, I will exercise my discretion to order that in the Horse Race that occurred at Northlands Park on August 19, 2017, Double Bear finished first. Chief Know It All finished second, and Trooper John finished third.

[86] If parties are unable to agree on costs, they may arrange to speak to me.

Heard on the 8th day of May, 2019 to the 9th day of May, 2019.
Dated at the City of Edmonton, Alberta this 13th day of August, 2019.

J.M. Ross
J.C.Q.B.A.

 


 

Appearances:

James K McFadyen, QC and Allie Larson
Parlee McLaws LLP
      for the Applicants (Docket: 1803 14772)

Lawrence W Olesen, QC and Hailee F Barber
Bryan & Company LLP
      for the Applicant, Harold W Veale Professional Corporation (operating as Sycamore Stables) (Docket: 1803 15048)

Steve T Eichler
Field Law
      for the Respondent, Horse Racing Alberta

Teresa Meadows
Meadows Law
      for the Respondent, Horse Racing Alberta Appeal Tribunal

G Alan Meikle, QC
Alberta Justice & Solicitor General
      for the Respondent, Her Majesty the Queen in Right of Alberta (as represented by the President of the Treasury Board and Minister of Finance)

Craig Sherbume
Craig K Sherbume Professional Corporation
      for the Respondent, Riversedge Racing Stables Ltd

Additional Info

  • Ruling #:: n/a
  • Ruling Date:: Wednesday, 14 August 2019
  • Involving:: Rollingson Racing Stables Ltd, Horse Racing Alberta, Sycamore Stables
  • Infraction:: n/a
  • Judgement:: Judgement placed Double Bear first, Chief Know It All second, and Trooper John third
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