The Applicant sought relief from the Court from an Appeal Tribunal that upheld the decision of a Board of Judges that found the Applicant was in violation of the Rules of Racing established by Horse Racing Alberta. The Court found that the appropriate standard of review was correctness. The Court quashed the Appeal Tribunal’s decision, and granted an Order of mandamus directing that there be no further action taken against the Applicant.

27. February 2007 0

Administrative law – Decisions of administrative tribunals – Horse Racing – Hearings – Conduct of hearings – Judicial review – Evidence – Admissibility – Procedural requirements and fairness – Standard of review – Correctness – Remedies – Mandamus

Hennessy v. Horse Racing Alberta, [2006] A.J. No. 1613, Alberta Court of Queen’s Bench, December 15, 2006, Sanderman J.

The Applicant was licensed by Horse Racing Alberta to train standard-bred race horses. He had been engaged in this business for over thirty years, and had never had a horse tested positive for a prohibited drug. In December 2005, the Horse Racing Alberta Board of Judges received a Certificate of Positive Analysis for bute in relation to one of the Applicant’s horses. The Applicant was summoned to a hearing before the Board of Judges.

At this hearing, the Applicant explained that he was perplexed by the positive test result. He admitted giving the horse a drug, but did so according to the regulations. The Board of Judges believed the Applicant’s evidence but nevertheless found the Applicant in violation of the Rules of Racing established by Horse Racing Alberta.

The Applicant appealed to an Appeal Tribunal. His contention in his Notice of Appeal was that the bute that he administered to the horse should have cleared its system before it raced. The Applicant’s legal counsel attempted to test the residue of the urine sample taken from the horse, but was informed that the “split sample” had been destroyed according to procedural guidelines. Not being able to independently test the urine that indicated a positive reading, the Applicant took the position that the certificate relied upon by the Board of Judges could not be entered for the truth of its contents before the Appeal Tribunal. The Applicant also suggested that the chemist who conducted the urine sample should be called to the hearing in order to prove the presence of the prohibited drug in the horse. In spite of this objection the Appeal Tribunal accepted the Certificate of Positive Analysis as prima facie evidence of a positive test result.

The Applicant sought judicial review on the basis of two errors. First, the Applicant took issue with the acceptance by the Tribunal of the Certificate of Positive Analysis as prima facie evidence, without more, of the presence of bute in the horse. Second, the Applicant claimed to have been denied procedural fairness and fundamental justice by his inability to test the accuracy of the findings of those who analyzed the urine sample taken from his horse; the destruction of the “split sample” prevented this.

The Court followed the traditional four step Pushpanathan test to determine the appropriate standard of review. The Court found that there was no privative clause, which would suggest a higher level of deference. With regard to the expertise of the Appeal Tribunal, the Court held that the Tribunal had a high level of expertise in relation to that of the Court on matters regarding horse racing in the province. However, the Court explained that the issue under review was a legal concept, i.e. procedural fairness, one where the expertise of the Court is greater. The Court stated that little deference should be accorded to the Tribunal’s expertise.

With regard to the third factor of the Pushpanathan test, the Court held that the legislation and the provisions under review called for considerable deference; it was apparent to the Court that the purpose of the legislation was to regulate the horse racing industry within the province in a fair fashion. The Court explained that the legislature intended a lower level of scrutiny by a reviewing court, and consequently considerable deference should be shown.

With regard to the last factor of the Pushpanathan analysis, the nature of the question, the question before the Court was a matter of law. The Applicant claimed a breach of fundamental justice due to his inability to make full answer and defence in relation to the allegations made against him. Little deference should be shown to the Tribunal.

The Court held that the four Pushpanathan factors lead to the conclusion that an appeal tribunal, highly experienced in the regulation of the horse racing industry, but not protected by a privative clause had to deal with a question focusing on matters of fundamental justice and the admissibility of hearsay evidence. The Court held that the proper standard of review in this case is correctness.

The Court held that the Applicant had been denied procedural fairness and fundamental justice. Hearsay evidence was also admitted in his hearing. The admissibility of the Certificate of Positive Analysis shifted the onus on the Applicant to prove his innocence, but the destruction of the “split sample” made any additional testing impossible. The Court found that the Applicant suffered significant punishment without being able to make full answer and defence.

The Court held that this was not one of those cases that should be returned to the Appeal Tribunal for a rehearing, as only part of the problem could be corrected. Also, the urine sample could not be re-tested. The Court held that it was just in these circumstances to grant an Order of mandamus directing that there be no further action taken against the Applicant. The Appeal Tribunal’s decision was quashed.

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