Bulletproof Enterprises (“Bulletproof”) and its owner Jeffrey Brooks (“Brooks”) appealed the dismissal of their judicial review application against the Ontario Racing Commission (“ORC”).

Brooks v. Ontario (Racing Commission), [2017] O.J. No. 5664, 2017 ONCA 833, Ontario Court of Appeal, November 1, 2017, J.L. MacFarland, C.W. Hourigan and G.I. Pardu JJ.A.

The director of the ORC had issued a suspension and freezing order against Brooks on the basis that his brother had been involved in running Bulletproof despite having been suspended by the ORC. The ORC dismissed the motion by Bulletproof and Brooks to quash or stay the freezing order and the notice of proposed order to suspend licences and dismissed the motion and the alternative for particulars. After a hearing before a panel of the ORC, the panel made findings of wrongdoing against Brooks and Bulletproof and ordered forfeiture of their frozen accounts, ten year licence suspensions, and a $400,000 fine. Brooks and Bulletproof applied to the Divisional Court for judicial review but were unsuccessful. Both the decision finding wrongdoing and ordering forfeiture as well as levying the $400,000 fine and the decision dismissing their motion to quash or stay the freezing order and the notice of proposed order to suspend licence were found to be reasonable.

Brooks and Bulletproof argued that the ORC did not provide sufficient particulars and had therefore deprived them of notice and had breached their procedural fairness rights. The Court held that the issue of adequacy of notice did not attract a standard of review analysis, but that the question was whether the rules of procedural fairness and natural justice had been adhered to. On the issue of notice, Brooks and Bulletproof argued that they were not provided with adequate particulars about the timing of the alleged misconduct. They also complained that the notice of proposed order did not allege fraud but that the panel ultimately found that they had engaged in fraud.

The court rejected this submission saying that the notice of proposed order constituted sufficient notice such that the appellants understood the case they had to meet. The time period and issue would have been clear to them on receipt of the notice of the proposed order. The central allegation was that they had permitted Brooks’ brother to be involved in Bulletproof’s business despite the fact that he had not held a racing licence since the fall of 2007. The pertinent time period was clearly the fall of 2007 onward.

With respect to the finding of fraud, although the language used by the ORC might be “considered intemperate”, there was nothing in the finding that would have taken the appellants by surprise. They knew that their honesty and integrity were at the forefront of the hearing, and the notice of proposed order had expressly indicated that their honesty and integrity were in issue. The central allegation was that they had surreptitiously permitted the brother to participate in their racing enterprise when he was not authorized to do so. The finding of fraud related directly to that central allegation.

The appellants next argued that the panel’s decision to allow Vice Chair Donnelly to continue sitting on the panel after the expiration of his term of appointment resulted in the panel losing jurisdiction and the failure of the panel to permit submissions on this issue was a breach of natural justice.

The court referred to the decision in Piller v. Association of Ontario Land Surveyors, 160 O.A.C. 333, for the proposition that if the term of office of a tribunal member who has participated in a hearing expires before the decision is given, the term shall be deemed to continue for the purpose of participating in the decision and for no other purpose.

There was no breach of natural justice by reason of the panel’s failure to hear submissions on this issue. The duty of fairness is flexible and variable and depends on the circumstances of a particular case. The terms of office of the panel members here were a matter of public record. No complaint was made by any party regarding any panel member participating in the hearing. Here, when there was no objection, there was no denial of natural justice to decline to invite submissions on the issue.

The appellants also argued that there was a failure to provide adequate reasons which was an issue of fairness. The Court rejected this submission and noted that the adequacy of reasons is not a standalone basis to quash a decision. The reasons are to be read together with the outcome and assessed for whether the result falls in a range of possible outcomes. The panel made reasonable factual findings available to it on the evidentiary record. The appellants had called no evidence at the hearing. Their objection to the reasons was therefore only an assertion that the panel should have drawn different inferences from the ORC’s evidence. Reasons need not reference every piece of contradictory evidence. The reasons together with the record enabled the Court to conclude that the outcome was within the range of acceptable outcomes.

The appeal was dismissed with costs against the appellants.