The Ontario Racing Commission (the “Commission”) was successful in its appeal from the Divisional Court’s Judicial Review decision overturning the Commission’s earlier decision finding Austin guilty of having provided an improper (cold) urine sample

Administrative law – Decisions of administrative tribunals – Horse Racing – Drivers – Testing for illegal substances – Horse racers – Disciplinary proceedings – Professional misconduct or conduct unbecoming – Hearings – Evidence – Judicial review – Bias

Austin v. Ontario (Racing Commission), [2007] O.J. No. 3249, Ontario Court of Appeal, August 30, 2007, M. Rosenberg, P.S. Rouleau JJ.A. and G.P. Killeen J. (ad hoc)

Austin was a licensed driver, trainer, and owner of standard bred racehorses. On November 2, 2004, Austin was racing horses at the Kawartha Downs Raceway and was advised to present himself at the raceway for urine testing that day. The Commission had a urine testing program to test for marijuana and cocaine use among drivers. Austin was on probation for an earlier offence. Austin provided a urine sample that was below the required 90 degrees Fahrenheit and less than the required 30 millilitres. A second sample was requested which was also deficient. Austin was suspended indefinitely until he provided the Commission with a “clean and proper sample”.

The track judges at Kawartha Downs received a report outlining the problems encountered in obtaining a sample from Austin. There was concern that Austin had provided fraudulent samples. The track judges determined that a Hearing would be necessary to deal with the charges. Austin was found guilty of having provided an improper urine sample. He appealed by way of a Hearing de novo before the Ontario Racing Commission. The Commission Panel of three Commissioners was struck and denied Austin’s appeal. Upon judicial review, the Divisional Court found that the decision of the Commission Panel created a reasonable apprehension of bias because a member of the Panel of track judges whose decision was under appeal testified at the de novo hearing. The Commission appealed this decision arguing that the track judges regularly testified at Commission Hearings and that the Divisional Court erred when it found that this created a reasonable apprehension of bias.

The Court of Appeal allowed the appeal and remitted the matter back to the Divisional Court for a new hearing. The Court found that the track judge had relevant evidence to give and that allowing the judge to give such evidence did not give rise to a reasonable apprehension of bias. The Commission Panel would have expected the track judge to stand behind and seek to justify the original decision. All of this would have been taken into account by the Commission Panel when assessing his evidence. This alone did not provide a realistic basis for concluding that the Commission Panel would, consciously or unconsciously, not decide the issue fairly.

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