A lawyer (“Sternberg”) was successful in his application for judicial review of a decision of the Ontario Racing Commission (the “Commission”) in which it ordered that Sternberg be prohibited from appearing as counsel before the Commission where the Court held that the hearing before the Commission was conducted in such a way as to raise a reasonable apprehension of bias towards Sternberg

25. November 2008 0

Administrative law – Decisions of administrative tribunals – Racing Commission – Barristers and solicitors – Professional misconduct – Judicial review – Hearings – Conduct of hearings – Contempt – Procedural requirements and fairness – Bias – Reasonable apprehension of bias – test – Compliance with legislation – Jurisdiction of tribunal

Sternberg v. Ontario (Racing Commission), [2008] O.J. No. 3864, Ontario Superior Court of Justice, October 3, 2008, J.D. Carnwath, K.E. Swinton and T.D. Ray JJ.

On March 6, 2008, a Panel of the Commission was convened to hear the Appeal of licencees who were being represented by Sternberg. During the course of the hearing, the administration called five witnesses. During the course of the cross-examination of one of these witnesses, Sternberg attacked the Chair of the Commission in response to a direction given by the Chair during his examination. The attack included references to the Chair’s lack of legal training and a statement to the effect of “I’m tired of listening to you when you don’t even know the rules!”. At no time during the hearing did Sternberg apologize to the Chair for his outburst.

On March 27, 2008, Sternberg was provided with a notice that his conduct during the hearing would be reviewed by the Commission. On April 25, 2008, a Panel of six Commissioners presided over a meeting to hear the complaint against Sternberg. Sternberg was entitled to make submissions and during those submissions apologized three times for his statements at the hearing. Following the submissions, the Chair indicated that the Panel would “rise for ten minutes”. The video of the proceeding revealed that the Panel rose for eight minutes, reconvened and rendered its decision. The decision was read partially by the Chair and partially by one of the Commissioners. The reading of the decision took approximately 25 minutes. The decision was identical to the 15-page Reasons for Decision released in writing by the Commission the following day. The Commission, citing the ability provided to it by section 23(1) of the Statutory Powers Procedure Act, RSO, 1990 c. S. 22 (“SPPA”) to control its own processes, ordered that Sternberg be prohibited from appearing as counsel before the Commission pending receipt of an unqualified apology. Sternberg applied for judicial review of this decision.

The Court reviewed the circumstances surrounding the decision reached by the Panel. The Court found that the Commission’s decision was prepared in advance of the hearing and noted that the suggestion that the reasons could have been prepared in the 8-minute adjournment after submissions defied logic. Additionally, the internal construction of the reasons ignored what took place during the hearing itself. The Court stated that procedural fairness requires impartial and unbiased decision-makers. Once a hearing is tainted by the appearance of bias, the integrity of the process requires that the decision of the hearing panel be quashed, citing Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utility), [1992] 1 S.C.R. 623. Whether any particular set of circumstances will disqualify a decision-maker on the ground of reasonable apprehension of bias depends on the following general test set out by the Supreme Court of Canada in R. v. S. (R.D.), [1997] 3 S.C.R.:

What would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude?

In this case, the Court found that the Panel pre-judged the issues arising from the hearing and that a member of the public would consider the circumstances to be persuasive in concluding that there was a reasonable apprehension of bias. On this basis, the decision of the Panel was ordered quashed.

The Court noted that the Commission’s own reasons for decision acknowledged that the Commission did not have jurisdiction to adjudicate on the issues of contempt. Section 13 of the SPPA expressly reserves that jurisdiction to the Divisional Court. The Commissioner’s jurisdiction to entertain contempt allegations is limited to deciding whether to state a case to the Divisional Court. Counsel for the Commission submitted that the Commission was attempting to “make such orders or give such directions in proceedings before it as it considers proper to prevent the abuse of its processes”. The Court rejected this submission noting that the hearing was, in pith and substance, a contempt hearing. The Court held that the Commission exceeded its jurisdiction by conducting this contempt hearing and, consequently, the decision resulting from the hearing was ordered quashed.

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