J. Q.B.G. A.D. 2000 No. 1188 J.C. S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON IN THE MATTER OF JUDICIAL REVIEW PURSUANT TO PART 52 OF THE QUEEN’S BENCH RULES AND THE INHERENT SUPERVISORY JURISDICTION OF THE COURT AND IN THE MATTER OF AN APPLICATION TO SET ASIDE THE OCTOBER 6, 1999 DECISION OF THE SASKATCHEWAN LIQUOR AND GAMING LICENSING COMMISSION (SLGLC) RE: DISQUALIFICATION OF THE HORSE “CHEETARA” 6TH RACE, SUNDAY, AUGUST 5, 1999—MARQUIS DOWNS, SASKATOON BETWEEN: BEVERLY BROOKS, BARCLAY BROOKS and STERLING McWATTERS and THE SASKATCHEWAN LIQUOR AND GAMING LICENSING COMMISSION (SLGLC), THE SASKATCHEWAN LIQUOR AND GAMING AUTHORITY, CHERYL TWIGG, JIM TWIGG, RIVER RIDGE FARMS and MERV WILSON RESPONDENTS Gwen V. G. Vanstone for the applicants Rodger W. Linka for The Saskatchewan Liquor and Gaming Authority Jeffrey M. Lee for Cheryl Twigg, Jim Twigg, River Ridge Farms and Merv Wilson JUDGMENT BARCLAY J. November 28, 2000 It’s Post Time! [1] This is an application by Beverly Brooks, Barclay Brooks and Sterling McWatters (collectively referred to as the “applicants”) for a judicial review of a decision of one of the respondents, The Saskatchewan Liquor and Gaming Licensing Commission (the “Commission”). The decision was with respect to horse race that took place at Marquis Downs Race Track in Saskatoon, Saskatchewan, on August 15, 1999. The race was “The Woodland Heritage”, $15,000.00 “stakes” race that comprised the sixth race on that day’s race card and featured field of eight horses. [2] The applicants are the owners of two horses which were involved in the race. The horse which won (Cheetara) was disqualified for interference at the gate. The applicants’ horses were moved up in the standings and as result were entitled to greater portion of the purse. [3] By virtue of s. 10.1 of The Alcohol and Gaming Regulation Act, S.S. 1988-89, c. A-18.01 (the “Act”), the Saskatchewan Liquor and Gaming Authority (the “Authority”) may make rules for the conduct of horseracing (s. 10.1(1) of the Act) and may authorize steward to enforce the Act and the rules of horseracing, as well as to conduct an investigation into breach of the Act or the rules of horseracing (s. 10.1(3) of the Act). [4] Rule 20 of the Rules of Racing (the “Rules”) requires that each race be observed by at least two stewards. Section 10 of this rule requires that “at least one Steward/Judge shall observe the jockeys/drivers throughout the stretch, specifically noting changing courses, interference, improper use of whips, breaks, and failure to contest the race to the finish.” [5] Where steward observes rule violation or receives an objection, s. 9(L) of Rule 20 provides that it is the duty of the stewards/judges to “Post the objection, or inquiry sign on the odds board in the case of complaint or possible rule violations and immediately notify the announcer of the objection and the horses involved....” [6] In accordance with the Rules, stewards Doug Schneider and Larry Huber observed the sixth race on August 15, 1999. Steward Huber watched the race on closed circuit television monitor, while steward Schneider watched the race through binoculars. The horse Cheetara finished first in the race. [7] After the race, Ken Gold, jockey on the third place horse “Mafia Mamma”, filed an objection with steward Schneider. The objection alleged that the winning horse, Cheetara, interfered with Mafia Mamma shortly after leaving the starting gate. [8] After making their inquiry, the stewards disqualified Cheetara and placed Cheetara in third place. This decision of the stewards had the effect of elevating Mafia Mamma from third place to second place. River Ridge Farms and Merv Wilson (two of the respondents) the owners of the disqualified horse, appealed the ruling of the stewards to the Commission. The right to appeal to the Commission is contained in provisions of the Rules and the Act. [9] The hearing of the appeal took place before the Commission in Saskatoon on September 10, 1999. The applicants were not given any notice as to the time and place of the hearing. [10] The Commission held that the veering to the left by Cheetara and Mafia Mamma was within the tolerance of interference at the gate for two year olds and overturned the decision of the stewards. Consequently, Cheetara was restored to first place. This judicial review application followed. ISSUES 1. Are the Hearsay Opinions of Stewards from Other Jurisdictions Admissible Before this Honourable Court? 2. Did the Commission Exceed its Jurisdiction by Overturning the Stewards’ Decision to Disqualify Cheetara? 3. Did the Commission Breach the Rules of Natural Justice by Failing to Give Notice of the Hearing to the Applicants? 1. Are the Hearsay Opinions of Stewards from Other Jurisdictions Admissible Before this Honourable Court? [11] Exhibit “A” to the affidavit of Barclay Brooks filed in support of the judicial review application consists of number of letters from stewards from other jurisdictions providing their opinions as to whether or not there was interference in the race in question (presumably based upon viewing videotape of the race). [12] Such information is irrelevant to the present proceedings. Not only are the opinions inadmissible as hearsay, but they are also irrelevant to the questions which are before this Court on judicial review. [13] The law is well settled that the Court in certiorari proceedings is restricted to determining whether or not the inferior statutory tribunal acted within its jurisdiction (including matters akin thereto such as fraud, bias, denial of natural justice, etc.) or whether there is error on the face of the record. (R. v. Northumberland Compensation Appeal Tribunal, Ex p. Shaw, [1952] K.B. 338). [14] Further, the evidence adduced at a hearing is not part of the record. (R. v. Labour Relations Board of Saskatchewan, Ex Parte Tag’s Plumbing Heating Limited (1962), 1962 CanLII 307 (SK CA), 34 D.L.R. (2d) 128 (Sask. C.A.). [15] In Tag’s Plumbing, the applicants for judicial review argued that the tribunal whose decision was under review had failed to inquire into certain evidence and had made incorrect factual findings based on the evidence. At pp. 134-35, Culliton C.J.S. stated: Grounds to of the application all allege error in law apparent on the face of the record. think it is clear that the findings of the Board complained of in these various grounds are findings which it was within the Board’s jurisdiction to make. The allegation of error in law on the face of the record can only be substantiated if the Board is bound not only to record its findings, but also the evidence upon which the findings were based.... As in my opinion no error is apparent on the face of the record, and the findings attacked in grounds to were within the Board’s jurisdiction, the Court cannot review the evidence as to whether they were correctly or erroneously made. [Emphasis added] [16] In my view, opinions of stewards from other jurisdictions form no part of the record and therefore cannot be considered by this Court. 2. Did the Commission Exceed its Jurisdiction by Overturning the Stewards’ Decision to Disqualify Cheetara? [17] The powers of the Commission in hearing appeals of the stewards’ decisions are prescribed in the Rules and the Act. [18] The right to appeal decision of the Authority (as represented by the stewards) is provided for in s. 17 of the Act: 17(1) Within 15 days after being notified of the decision, an applicant may apply, in the manner described in subsection (1.1), for review by the commission of decision of the authority to: ... (c) ... impose fine or other sanction on person who has contravened the rules of horse racing or acted in manner that is prejudicial to the best interests of horse racing. [19] Upon receiving such an application, s. 16 of the Act requires the Commission to hold hearing. Section 17(4) sets out the information which the Commission can consider in hearing an application for review of the stewards’ decision: 17(4) On review conducted pursuant to this section, the commission may consider: (a) any information submitted by the applicant; (b) any information considered by the authority in making its decision; and (c) where an oral hearing is held, any information given or representations made at the oral hearing. [20] The authority of the Commission to render decision after holding hearing pursuant to s. 16 is set out in s. 19: 19 Where the commission holds hearing pursuant to section 16 it may: ... (g.2) confirm the decision ... to impose fine or other sanction on person who has contravened the rules of horse racing or acted in manner that is prejudicial to the best interests of horse racing, or substitute its own decision. [Emphasis added] [21] Rule 31 further sets out the power of the Commission with respect to appeals or review of decisions of the stewards. The relevant portions of Rule 31 are as follows: RULE 31 APPEALS SECTION Appeal: An appeal is request to the Saskatchewan Liquor and Gaming Licensing Commission to investigate, consider and review any decisions or rulings of the Stewards/Judges or officials of racing meeting. The appeal may deal with placements, penalties, interpretations of the rule or other questions dealing with the conduct of racing. SECTION The record in appeal before the Commission is constituted of the following documents: A. The notice of appeal signed by the appellant, B. the decision of the Stewards/Judges where applicable, C. the video recording when the offence appealed was committed during race, if any, ... E. such further and other documents as the Commission, in its sole discretion may deem appropriate. SECTION 11 Where the ends of justice so require, the Commission may ex officio or on motion of party, hear witnesses who testified before the Stewards/Judges. SECTION 12 The Commission may also require or authorize additional evidence or the calling of new witnesses that may give evidence relevant to the appeal. ... SECTION 16 The Commission in its sole discretion shall determine all of evidence and procedure for appeals held before it. [22] These provisions in both the Rules and the Act clearly entitle the Commission to overturn decision of the stewards based on the Commission’s own assessment of the evidence. These provisions are clearly inconsistent with the applicants’ assertion (in the second ground for review in the amended notice of motion) that the stewards “are vested with the sole authority to determine whether there was interference at the gate....” [23] In my view this ground of the application is without merit. 3. Did the Commission Breach the Rules of Natural Justice by Failing to Give Notice of the Hearing to the Applicants? [24] There exists general duty to act fairly on the part of public authority and this includes notice and the right to make representations to the tribunal. [25] In Knight v. Indian Head School Division No. 19 (1990), 1990 CanLII 138 (SCC), 69 D.L.R. (4th) 489 (S.C.C.), it is clearly set out that the existence of general duty to act fairly on the part of public authority depends on three factors: 1. The nature of the decision to be made by the administrative body; 2. The relationship existing between the body and the individual; and 3. The effect of the decision on the individual. [26] If the court determines that duty of fairness is owed, it must then go on to determine if that duty has been modified by the statutory framework or by the contract between the public authority and the individual. At p. 506 Laskin C.J.C. states: Having come to the conclusion that there exists general right to procedural fairness, the statutory framework must be examined in order to see if it modifies this right: Wiseman v. Borneman, [1969] All. E.R. 275 (H.L.), at p. 277, per Lord Reid. However, as was pointed out by Dickson J., as he then was, in Kane v. Board of Governors of the University of British Columbia, supra, at p. 113: "To abrogate the rules of natural justice, express language or necessary implication must be found in the statutory instrument." Thus, the provisions of the Education Act must be quite clear to lead us to the conclusion that the respondent's general right to procedural fairness has been restricted. [27] Therefore it is presumed in each case that procedural fairness applies and it will take an explicit or clearly implicit provision to the contrary in the legislation or the contract to override this presumption. At p. 509 Laskin C.J.C. states: In interpreting the contract of employment, it will be presumed, as was the case with the statute, that the parties intended that procedural fairness would apply and it will take an explicit or clearly implicit provision to the contrary to override this presumption: Kane v. Board of Governors of the University of British Columbia, supra, at p. 322, per Dickson J. [28] In the case of Gazdarica v. Calgary R.C. Separate School District No. 1/Catholic School Centre (1986), 26 Admin. L.R. (Alta. Bd. of Reference under the School Act) no notice whatsoever of meeting where school board's decision to suspend teacher and terminate her contract was given. judge of the Alberta Court of Queen's Bench acting as Board of Reference under the School Act quashed the decision. At p. 13 Rowbotham J. states: The duty to act fairly applies to all administrative tribunals including the respondent [see Nicholson v. Haldimand-Norfolk Regional Bd. of Police Comm., 1978 CanLII 24 (SCC), [1979] S.C.R. 311, 78 C.L.L.C. 14,181, 88 D.L.R. (3d) 671, 23 N.R. 410 (S.C.C.)]. Moore C.J.Q.B. in Yarmoloy v. Banff School Dist. No. 102 (1985), 1985 CanLII 1361 (AB QB), 63 A.R. 390 (Alta. Q.B.), case involving the placement of student in another school wrote at p. 394: “In this case, the content of the duty to act fairly included notice and the right to make representation to the board when it considers the placement issue.” In the present reference, the appellant had the right to receive notice of the board hearing which proposed to deal with question of her dismissal and to make representations to the board in opposition to that proposal. heard no evidence or submission which indicated that the appellant was present or was represented at the board meeting which considered the matter of her dismissal. Dr. Kowalski, assistant superintendent for the board was present at the meeting and submitted the administration's recommendation for her dismissal. The board had an obligation, especially when the employment and livelihood of the appellant was in issue, to disclose to her the evidence that they propose to rely upon together with sufficient notice of the hearing to permit her to prepare and present an appropriate response. These requirements were established in Bigger v. Elliot Lake Police Comm. Bd. (1984), C.C.E.L. 174, 26 M.P.L.R. 24, O.A.C. 60 (Ont. Div. Ct.). The rule of fairness requires that, in the words of Lord Hewart C.J. in R. v. Sussex Justices; Ex parte McCarthy, [1924] K.B. 256, [1923] All E.R. Rep. 233: “justice should both be done and manifestly seen to be done....” [29] The basic principles relating to notice were recently reviewed by Esson C.J.S.C. in R.(J.) v. College of Psychologists (British Columbia) (1993), 1993 CanLII 759 (BC SC), 107 D.L.R. (4th) 335 (B.C.S.C.). In that case it was held that committee of the College had failed to discharge its duty to act fairly when it failed to give the petitioner notice of its intention to consider the imposition of conditions on his practice. Esson C.J.S.C. said at p. 340: The primary submission of the petitioner is that the college failed in its duty to act fairly when imposing conditions under s. 9.1. It relies upon the line of authority starting with Nicholson v. Haldimand-Norfolk (Region) Board of Police Commissioners (1978), 1978 CanLII 24 (SCC), 88 D.L.R. (3d) 671, [1979] S.C.R. 311, 78 C.C.L.C. ¶14,181, and particularly on the principle stated by Dickson J. (later C.J.C.) in Kane v. University of British Columbia (Board of Governors) (1980), 1980 CanLII 10 (SCC), 110 D.L.R. (3d) 311, [1980] S.C.R. 1105, [1980] W.W.R. 125. Dickson J. said at p. 322: “In any particular case, the requirements of natural justice depend on ‘the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter which is being dealt with, and so forth’ To abrogate the rules of natural justice, express language or necessary implication must be found in the statutory instrument. 3. high standard of justice is required when the right to continue one's profession or employment is at stake disciplinary suspension can have grave and permanent consequences upon professional career. 4. The tribunal must listen fairly to both sides giving the parties to the controversy fair opportunity ‘for correcting or contradicting any relevant statement prejudicial to their views’: Board of Education v. Rice et al., [1911] A.C. 179 at p. 182 (H.L.); Local Government Board v. Arlidge [[1915] A.C. 120 at p. 140].” [30] Here the applicants’ rights are clearly affected by the decision of the Commission and s. 16 of the Act gives the Commission discretion as to who must receive notice. [31] The sole argument of the respondents is that the privative clause in the Act affords the Commission the right to interpret the notice provisions of its empowering statute subject only to judicial review on the patently unreasonable standard. [32] The respondents rely on the Supreme Court of Canada decision of Bibeault v. McCaffrey, 1984 CanLII 133 (SCC), [1984] S.C.R. 176. Bibeault dealt with the refusal of an investigation commissioner to allow employees to participate in an investigation into the appropriate composition of bargaining unit. Specifically, the employees had requested the right to make oral representations at the investigation, to call witnesses, and to cross-examine other parties’ witnesses. However, the legislation in issue (which contained privative clause) specified that the investigation commissioner was to determine the appropriate composition of bargaining unit in the presence of the associations concerned and the employer. Employees were not contemplated by the legislation as being present for that determination, but neither did the legislation specify employees were to be excluded. Based on the commissioner’s interpretation of the legislation, only the associations and the employer were entitled to participate in the investigation. When the employees were refused the right to participate, they claimed that the audi alteram partem rule of natural justice had been violated. However, the Court held as follows at pp. 184-85: The complaint by the employees that the audi alteram partem rule has been infringed assumes that the law gives them the status of interested party and that ... it has not deprived them of the characteristics of that status. Such finding is within the authority of the commissioners, and the latter, as consequence of the privative clause, is immune from review by the superior courts unless it is patently unreasonable. In my view, the decision of the commissioners and the Labour Court rests on an interpretation of s. 32 L.C. which is not patently unreasonable. [Emphasis added] [33] This case is clearly distinguishable from the case at bar. In Bibeault, the employees were represented by an employees’ association and therefore it would not be necessary for the employees to be separately represented. Furthermore, the decision of the Commission to refuse to give the applicants notice of the hearing is, in my view, patently unreasonable. [34] In Re Central Newfoundland Hospital (1978), 20 Nfld P.E.I.R. 215, the Newfoundland Supreme Court held that the Newfoundland Labour Relations Board, before granting an extension of time (for filing an objection) to party should give the other party an opportunity to be heard, where the granting of an extension of time was quasi-judicial function. The court went on to state that the basic principles of natural justice require that tribunal shall be impartial and that the parties concerned shall be given an opportunity to be heard. CONCLUSION [35] In this case the Commission has failed to discharge its duty to act fairly when it failed to give the applicants any notice of the hearing and also failed to give them any opportunity to make submissions. The Commission has an obligation in order to protect the rights of the applicants to ensure that they have right to be heard. Here, as the Commission did not give adequate or any notice to the applicants, a miscarriage of justice has occurred. The application is allowed and the decision of the Commission is quashed. The matter is remitted back to the Commission to be dealt with according to law after the appropriate notices have been given to the applicants. [36] The applicants are entitled to the costs of their application.
An application for a judicial review of a decision by the Saskatchewan Liquor and Gaming Commission which held that the veering to the left by the two horses was within the tolerance of interference at the gate for two year olds. The Commission overturned the decision of the stewards and restored the horse declared to be in first place. In issue was whether the hearsay opinions of stewards from other jurisdictions were admissible; whether the Commission exceeded its jurisdiction by overturning the steward's decision to disqualify the horse; whether the Commission breached the rules of natural justice by failing to give notice of the hearing to the applicants. The respondents contended the privative clause in the Act gives the Commission the right to interpret the notice provisions of its empowering statute subject only to judicial review on the patently unreasonable standard. HELD: The application was allowed and the decision of the Commission was quashed. The matter was remitted to the Commission to be dealt with according to law after the appropriate notices have been given to the applicants. 1)The opinions were not only inadmissible as hearsay but were irrelevant to the present proceedings.  2)The law is well established that the Court in certiorari proceedings is restricted to determining whether or not the inferior statutory tribunal acted within its jurisdiction or there is an error on the face of the record. The evidence adduced at a hearing is not part of the record.  3)The provisions in both the rules of the Saskatchewan Liquor and Gaming Authority for the conduct of horse racing and the Alcohol and Gaming Regulation Act clearly entitle the Commission to overturn a decision of the stewards based on the Commission's own assessment of the evidence. The stewards were not vested with the sole authority to determine whether there was interference at the gate. 4)Knight v. Indian Head School Division set out that the existence of a general duty to act fairly on the part of a public authority depends on three factors: the nature of the decision, the relationship between the body and the individual, and the effect of the decision on the individual. 5)A miscarriage of justice occurred because the Commission did not give adequate or any notice to the applicants and failed to give them an opportunity to make submissions. The decision of the Commission to refuse to give the applicants notice of the hearing was patently unreasonable. Their rights were affected by the decision. Bibeault was distinguishable. 6)The applicants were awarded costs.