McNamara v. The Ontario Racing Commission

McNamara v. The Ontario Racing Commission Collection Decisions of the Court of Appeal Date 1998-08-13 Docket numbers C29840 Judges Finlayson, George Duncan; Abella, Rosalie Silberman; Moldaver, Michael James Subject Civil Decision Content DATE: 19980813 DOCKET: C29840 COURT OF APPEAL FOR ONTARIO FINLAYSON, ABELLA and MOLDAVER JJ.A. BETWEEN: ) ) ROBERT McNAMARA ) Peter A. Simm and ) Christopher E. Chop Applicant ) for the appellant (Appellant) ) ) - and - ) ) Ann Gibson THE ONTARIO RACING COMMISSION ) for the respondent ) Respondent ) ) Heard: June 8, 1998 ) ABELLA J.A.: [1] Robert McNamara was a standardbred owner/groom of some horses at Rideau Carleton Raceway. On September 12, 1997 he accompanied the woman he lives with, Sherry Korniski, to a hearing she was required to attend at the Raceway as a result of charges laid against her in connection with horses she owned. [2] The hearing took place before three track judges. Early in the hearing, after reading the statement of one of the witnesses, McNamara became agitated and started swearing at the judges. The judges asked him to leave, which caused McNamara to become even more abusive. The hearing was then adjourned at Korniski's request so that her lawyer could attend. The judges refused to let Korniski race her horses pending the adjournment. As a result, she and McNamara went next door to the offices of the Canadian Trotting Association so Korniski could transfer some of her horses. McNamara was also interested in transferring one of his horses. [3] When the person in charge of the offices of the Canadian Trotting Association asked the three judges whether the transfers could be made, the judges refused. They believed that McNamara and Korniski had an interest in each other's horses. This, and the serious nature of the charges against Korniski, caused the Track Judges to conclude that no horses should be transferred until the ownership was clarified. [4] This decision enraged McNamara. He threatened, verbally abused, and intimidated the Judges, refusing to leave the office even after the Judges called security personnel for assistance. It took security almost ten minutes to arrive, during which time McNamara's abuse and intimidation continued. [5] One of the judges, Al Caughey, then told McNamara that he was suspended for thirty days and all horses under his direction that night were scratched. McNamara became further enraged. [6] Two security officers, David Joanis and Ernie O'Dwyer, arrived and found McNamara yelling, swearing and screaming at the judges. Joanis said McNamara was "about to snap", a state Joanis had seen him in before. O'Dwyer said McNamara was ranting and raving and said he would leave "when he fucking well wanted to leave." [7] Joanis and O'Dwyer placed themselves between the Judges and McNamara, and were able gradually to manoeuvre him out of the room. [8] Shortly after this incident, the Track Judges allowed Korniski to transfer 9 horses and McNamara to transfer one. [9] The official ruling of the track judges was that McNamara had violated Rules 6:17(b)(c)(d)1of the Rules of Standardbred Racing, 1997, because he: Did threaten, used insulting, offensive and improper language and was guilty of GROSS improper misconduct toward the judges in their office on 12 Sept 97. [Emphasis in original.] McNamara appealed the suspension to the Ontario Racing Commission (the "Commission"). The suspension was stayed pending the Commission hearing held the following month, and continues to be stayed. [10] A three-person panel of the Commission heard viva voce evidence for three days. The witnesses were McNamara; one of the three track judges, Al Caughey; the two security officers; and a doctor called on McNamara's behalf, Dr. James Turnbull. [11] McNamara admitted at the Commission hearing that he had lost his temper and swore at the judges, but said this occurred only after he and Korniski were told they could not transfer their horses. He was also upset at being suspended for 30 days without a hearing. [12] McNamara attributed his behaviour on September 12, 1997 to his diabetic condition. His medical condition improved dramatically, he said, on September 23, 1997, when his medication was changed to injectable insulin and his diet was adjusted. [13] The Commission found Dr. Turnbull, an expert in internal medicine, to be a "very credible witness." He was asked by McNamara's counsel to explain the impact of diabetes on behaviour. Although he was not McNamara's doctor, he based his opinions on medical records he got from McNamara's treating physician. His evidence was that when diabetes is out of control, a patient can experience confusion, stress, the loss of social skills, fear, aggression and the use of profanity. Dr. Turnbull confirmed that McNamara's diabetes is now under control, and can continue to be controlled with ongoing help from his doctor, a dietician, and continuing education. [14] After hearing all the evidence, the Commission rejected McNamara's evidence where it conflicted with the evidence of Caughey, O'Dwyer and Joanis. It made a finding that McNamara behaved in "a totally unacceptable manner" and that his abusive conduct started almost as soon as he arrived at Korniski's hearing. The Commission found that McNamara "acted in an outrageous manner" even before being told the horses could not be transferred, and did not stop until he was finally ushered out of the hearing room. [15] McNamara's defence of provocation was rejected as follows: We reject the suggestion that his misconduct was precipitated by the conduct of Caughey in either refusing to permit the transfer of horses or in suspending McNamara on the spot. [16] The Commission also took into account McNamara's outbursts on prior occasions in concluding that his medical condition alone did not cause his abusive behaviour: [1] During the evidence in chief of Caughey and O'Dwyer in particular, reference was made to a number of prior occasions when McNamara was verbally aggressive, vulgar, obnoxious and loud with various racetrack officials and licensees. There was no objection taken to the introduction of this evidence. To the extent that this evidence could be described as character evidence, in our view it is only relevant to disprove the facts put in issue by McNamara that his extreme outburst on this occasion was caused or contributed to by his medical condition. Evidence of extreme outbursts on other occasions when a medical condition did not appear to be a direct issue is received to disprove McNamara's assertions as to the cause of his behaviour on this occasion. ... In the result, we find that McNamara's conduct toward the Judges on the day in question was grossly offensive, insulting, threatening and improper and that he was in violation of Rules 6.17 (b)(c) and (d). While his diabetic condition may have contributed to the excessiveness of his behaviour, we do not accept that it was its sole cause and therefore provides an absolute excuse. [17] The immediacy of McNamara's suspension was found to be justified under Rule 1.09 because these were "very special circumstances": Racing Officials are not to be subjected to the kind of treatment that Caughey, Raymond and Campbell experienced at the hands of McNamara in this case. In our view, Caughey was justified in suspending McNamara on the spot. If further justification is required in the special circumstances of this case, it can be found in Rule 1.09 which reads in part as follows: 1.09 the Commission in its absolute discretion may waive the breach of any of the rules which waiver or breach the Commission does not consider prejudicial to the best interests of racing. In the unique circumstances of this case if necessary, we would be prepared to waive the application of Rule 6.03.2 ... In closing, we wish to make it clear that the kind of conduct exhibited by McNamara on September 12, 1997, will simply not be tolerated. Standardbred Judges are to be treated with courtesy and respect by standardbred licensees. Should a licensee feel aggrieved by the decisions or conduct of the Judges, there is recourse to the Commission. That recourse must never include the kind of abuse that was directed toward the Judges at Rideau Carleton by McNamara. [Emphasis in original.] [18] The Administration of the Commission had cross-appealed the 30-day suspension, seeking a 6-month suspension. The Commission increased the suspension to 60 days for the following reasons: In determining penalty, we have considered a number of factors, viz. the extreme nature of McNamara's conduct on the night in question, that his conduct may have been influenced in part by his medical condition, that his medical condition now appears to be under control, his prior conduct towards racing officials, his willingness to abide by conditions should he be permitted to continue to hold an owner's and groom's license and his apologies. In all of the circumstances, we have concluded that McNamara should be suspended for 60 days less the 7 days already served prior to continuing a stay of these proceedings pending the disposition of this appeal. [19] In addition to the 60-day suspension, the following conditions were imposed on McNamara: In addition, during both the period of suspension and subsequent, McNamara shall satisfy the Administration of the Commission in a form acceptable to it that: a) his diabetic condition is under control and that he continues to monitor his blood/sugar levels; b) that he continues to be monitored for his diabetic condition by a physician such as Dr. Dostaler who is responsive to his condition; c) that he pursues a diet that is compatible to his medical condition; and d) that he participates in a regime of continuing education with regard to his medical condition. [20] McNamara brought an application for judicial review of the Commission's decision. The application was heard and dismissed by a single judge of the Divisional Court, Campbell J. His reasons were set out in an endorsement which states: The applicant raises in this court for the first time the proposition that the proceedings were really for contempt and that track judges and the ORC therefore had no jurisdiction to exercise the contempt jurisdiction reserved exclusively to the Divisional Court under SPPA s. 13. These proceedings were not for contempt. They were for the enforcement of Rules 6.17 (b) (c) and (d). It is irrelevant that the conduct was also contemptuous. The violently threatening and assaultive conduct of the applicant went far beyond any contempt of the kind contemplated by s. 13 of the SPPA. It constituted an immediate physical challenge to the order of the track and had to be dealt with on the spot. The decision of the track judges and the ORC was squarely within their jurisdiction in relation to the enforcement of Rules 6.17 (b), (c) and (d). Resort to Rule 1.09 was fully justified. Any arguable defects in substance or procedure before the track judges were cured by fresh review before the ORC which heard evidence and made its own findings of fact. If there was any apprehension of bias on the part of the track officials, who obviously and out of immediate necessity had to act quickly on the spot in the circumstances, it was cured by the rehearing before the fresh tribunal. There was no error in relation to the standard of proof, the use made of the medical and similar fact evidence or in the finding that there was no prejudice by reason of the timing of the cross-appeal in relation to penalty. There was ample evidence to support the findings of fact and the penalty for the applicant's violently disruptive, assaultive, and threatening conduct. The conditions, that the applicant take appropriate efforts to control the medical condition to which he attributed his aggressive outbursts, is reasonably necessary to ensure he does not repeat his conduct. There is nothing in the measured and careful reasons of the ORC [the Commission], an experienced specialist tribunal, to suggest any error in law, principle, or jurisdiction, let alone anything that approaches the patently unreasonable. For these reasons, the application is dismissed. [21] McNamara appealed this decision and was granted leave by a panel of this court with respect to two issues: 1. Can Rule 1.09 be invoked in the circumstances of this case? 2. Was there a jurisdictional error on the part of the Commission in imposing the penalty it did? Analysis [22] The Commission was established under the Racing Commission Act, R.S.O. 1990, c. R.2. Its mandate, set out in s. 3 of the Act, is "to govern, direct, control and regulate horse racing in Ontario in any or all of its forms." Its powers are set out in s. 10, and include the following: ... (c) to hold hearings relating to the carrying out of its objects or powers, and to require by a summons signed by the chair or by any other member of the Commission any person to give evidence on oath and to produce such documents and things as the Commission considers requisite in any such hearing; (d) to enforce the carrying out and observance of all regulations, rules and conditions established under this Act, by a fine or other penalty or otherwise; ... (f) to license persons to operate race tracks at which horse racing in any of its forms is carried on and to impose such terms and conditions on a licence as the Commission considers expedient; (g) to license owners, trainers, drivers, jockeys, apprentice jockeys, grooms, jockeys' agents, jockeys' valets, exercise riders, tradespersons and such other persons in or about racetracks at which horse racing in any of its forms is carried on, and to impose such terms and conditions on a licence as the Commission considers expedient; ... (i) to refuse to grant any licence or to suspend or revoke any licence for conduct that the Commission considers to be contrary to the public interest; ... (l) to make and promulgate rules for the conduct of horse racing in any of its forms; (m) to employ stewards, veterinarians, analysts, secretarial assistants, judges and such other persons as the Commission considers expedient to attend at race meetings on behalf of the Commission; (n) to require approval by the Commission of the appointment of race track officials and employees whose duties relate to the actual running of horse races and to compel the discharge for cause of any such official or employee; (o) to fix, impose and collect fines and other penalties for a contravention of any requirement of the Commission under this Act; [23] In addition, pursuant to s. 14 of the Act, the Commission may delegate to judges or race track officials, among others, the holding of hearings and the enforcement generally of rules and regulations promulgated under the Act. [24] The Rules of Standardbred Racing are the official rules of the Ontario Racing Commission. They govern the conduct of standardbred racing and apply to all standardbred raceways and participants under the Commission's jurisdiction. [25] Rule 1.09 states: 1.09 If any case occurs which is not or which is alleged not to be provided for by the rules, it shall be determined by the judges or the Commission as the case may be, in such manner as they think is in the best interests of racing. Provided however, the Commission in its absolute discretion may waive the breach of any of the rules, which waiver or breach the Commission does not consider prejudicial to the best interests of racing. In my view, it is unnecessary to decide whether the Divisional Court correctly concluded that resort to this Rule was "fully justified" in the circumstances of this case. [26] The Commission's re-hearing rendered the Rule 1.09 argument moot. The essence of McNamara's claim is that the proceeding before the track judges was a nullity and therefore could not be corrected on appeal. I disagree. The track judges had jurisdiction to suspend McNamara. The more apposite analysis is that the procedure they followed represented, arguably, an infringement of the rules of natural justice. Such procedural defects, however, are amenable to rectification on appeal; they do not render the proceeding void. The jurisprudence is clear that they can be cured by a subsequent hearing in which natural justice is accorded. This renders "nugatory any alleged earlier failure to accord ... such natural justice in any of the earlier hearings" (Harelkin v. University of Regina, [1979] 2 S.C.R. 561 at 581. See also Posluns v. Toronto Stock Exchange and Gardiner (1966), 1 O.R. 285 (Ont. C.A.), aff'd, [1968] S.C.R. 330; King v. University of Saskatchewan, [1969] S.C.R. 678; Re Clark and Ontario Securities Commission (1966), 56 D.L.R. (2d) 585 (Ont. C.A.); and Re Polten and Governing Council of the University of Toronto (1975), 59 D.L.R. (3d) 197 (Ont. H.C.)). [27] Whether or not McNamara ought to have been suspended by the track judges without a hearing pursuant to Rule 6.03, the fact is that he was ultimately found to have merited a suspension after a full, open and fair hearing before the Commission. Witnesses were called, counsel were present, and arguments were presented. Any procedural defects in the hearing before the track judges and any resulting prejudice were cured by the fact that a subsequent hearing took place with the benefit of every procedural safeguard. [28] The issue before the Commission was whether McNamara should have been suspended. McNamara knew the case he had to meet and was given every opportunity to meet it at the hearing. It is, in my view irrelevant whether the hearing was technically called "an appeal". What matters is what actually took place. And what took place was a hearing de novo, a fresh consideration of the events of September 12, 1997. [29] As for the propriety of the penalty, McNamara had explained his vituperative conduct as deriving solely from his medical condition. He also denied being abusive before being provoked when told that no transfers of ownership could be made. [30] The Commission made findings of credibility against McNamara and rejected his evidence on both matters. This was completely within its jurisdiction. Having heard the full case, it found McNamara's conduct to be abusive and outrageous, citing some of the following examples of his invective: You bunch of fucking assholes are not going to tell me what to do; you are not fucking well going to put me out of the office; you (Caughey) are not fucking man enough to put me out of the room; you don't have a fucking clue; who the fuck do you think you are; I know where you fuckers live; I'll get even with you bastards. ... [31] It also found that while the diabetes "contributed to the excessiveness" of the behaviour it was not the sole cause of it and therefore provided no excuse. It therefore concluded that a suspension was warranted. [32] The Commission has clear authority to impose a penalty, including suspension (s. 10(d)(i)(o) of the Racing Commission Act). In suspending McNamara for 60 days and imposing conditions, the Commission was acting to protect the public from any risk flowing from his threatening conduct, and its justification for imposing the penalty is clear: Rule 1.07 provides that all licensees shall abide by the Rules and accept the decisions of the judges, subject to the right of appeal to the Commission. Should a licensee prove to be ungovernable, he or she will be stripped of their licence. The conduct of standardbred racing and the overall public interest requires no less if it is to be conducted in an orderly and regulated manner. [Emphasis added] The conditions, while stringent, were designed to ensure that the medical condition McNamara said led to his threatening conduct, was monitored so long as he was under the Commission's authority. [33] This is a specialized tribunal whose expertise is entitled to judicial deference. The applicable standard of review when the Commission is acting within its jurisdiction is, therefore, patent unreasonableness or clear irrationality. I see nothing patently unreasonable either about the suspension, its duration, or the conditions imposed. [34] Accordingly, I would dismiss the appeal with costs. FINLAYSON J.A. (dissenting): [35] I have had the benefit of reading the reasons of Abella J.A. and respectfully am unable to agree with them. Facts [36] On September 12, 1997, the appellant, who was licensed as a trainer and groom, attended with his spouse before a panel of track judges at Rideau Carleton Raceway. His spouse, who was licensed as a trainer, was facing charges for betting on horses, other than her own, in races in which her horses competed. The appellant attended to represent her in her discipline proceedings. [37] Exactly what happened thereafter is not clear on this record, but on any version of the facts, the conduct of the appellant was outrageous. He berated the panel of judges to the point that the proceedings had to be adjourned and he and his spouse were ushered out of the hearing room. They then attended at the Canadian Trotting Association office in the same building to arrange for the transfer of the registration of horses in the spouse’s name to the appellant so that in the event that his spouse was suspended, the horses could still race. The person responsible for those transfers contacted the office where the panel of judges was sitting and was told not to effect the transfers. [38] The appellant flew into a rage, returned with his spouse to the original hearing room and apparently lost control of his temper completely. He again berated the panel, threatened individual members and used obscene language. It was necessary to send for security and the appellant had to be physically restrained. At some undetermined point in what is now referred to as a “hearing”, the focus of attention of at least one member of the panel of track judges shifted from a consideration of the conduct of the appellant’s spouse to that of the appellant. However, the appellant was never warned that his conduct was unseemly and that he was at risk in consequence. He was never told that he was facing discipline or what rules he was alleged to have broken. He was not advised of any potential penalty, nor was he advised that he was entitled himself to have representation at the hearing. As far as I can determine, the first indication to him that his conduct was being examined into was when the president of the panel, with the appellant’s face thrust within six to eight inches of his own, announced that the appellant was suspended and all horses under his direction were scratched. This infuriated the appellant even more. He was then physically removed from the hearing room by security. [39] The typescript of the ruling of the panel of track judges states that there was penalty imposed “of 30 days full suspension from September 12, 1997 through to October 12, 1997” for the following reasons: ORC rule 6.17(b) (c) (d) Did threaten, used insulting, offensive and improper language and was guilty of GROSS improper misconduct toward the judges in their office on 12 Sept 97. All horses under his direction were scratched. [40] The appellant appealed his suspension and counsel for the Administration of the Ontario Racing Commission served notice that she intended to request that the Racing Commission vary the penalty by increasing the suspension from 30 days to six months. [41] The Racing Commission heard evidence and argument and at its conclusion, dismissed the appeal and allowed the cross-appeal to the extent of increasing the suspension to 60 days and imposing certain health monitoring conditions on the appellant as a term of re-instating him. In dealing with jurisdictional arguments, the Racing Commission concluded: In normal circumstances, a licensee is certainly entitled to be notified of any charges against him or her for a violation of the Rules and to attend at a hearing convened for the purpose of dealing with the alleged violation (see Rule 6.03). However, we find that this case involves very special circumstances. Racing Officials are not to be subjected to the kind of treatment that Caughey, Raymond and Campbell [the panel of judges] experienced at the hands of McNamara in this case. In our view, Caughey was justified in suspending McNamara on the spot. If further justification is required in the special circumstances of this case, it can be found in Rule 1.09 which reads in part as follows: 1.09 the Commission in its absolute discretion may waive the breach of any of the rules, which waiver or breach the Commission does not consider prejudicial to the best interests of racing. In the unique circumstances of this case if necessary, we would be prepared to waive the application of Rule 6.03. [42] An application for judicial review was heard by A. Campbell J. sitting as a single judge of the Divisional Court. He dismissed the application, holding that the violently threatening and assaultive conduct of the appellant went beyond any contempt contemplated by s.13 of the Statutory Powers Procedure Act, R.S.O. 1990 Chap. S-22, that his conduct was squarely within the jurisdiction of Rules 6.17(b), (c) and (d), that resort to Rule 1.09 was fully justified and any arguable defects in substance or procedure before the track judges were cured by fresh review before the Ontario Racing Commission. Analysis [43] Counsel for the respondent conceded that the proceeding before the track judges was most unusual and entirely unprecedented. The appellant should have received written notice of the hearing pursuant to the Rules of Standardbred Racing (“Rules”). 4.1 (1) Unless otherwise ordered, written notice of a hearing shall be given by the Commission to the parties and other persons as required by statute and to such other persons as the Commission considers necessary. (2) All notices of hearing shall include: (a) a reference to the statutory authority under which the hearing is to be held; (b) a statement of the purpose of the hearing; and (c) a statement that the party may have a representative at the hearing. (3) The Commission may include in a notice of hearing any other information or directions it considers necessary for the proper conduct of the hearing. [44] Rule 4.5 reads: Unless otherwise ordered, notice of hearing is sufficiently given if served under Rule 2.1 with 4 clear days notice. [45] Counsel further conceded that there was no urgency in this situation except that the members of the track judge’s panel felt threatened and were fearful for their safety. However, she agreed that once security had been summonsed, the appellant could have been ejected (as he ultimately was) and a proper hearing conducted at a later date upon proper notice to the appellant. [46] To conduct an administrative hearing relating to the cancellation or suspension of a licence in these circumstances bordered on the bizarre. The panel members were fearful for their personal safety and the licence holder was incapable of controlling his temper. There was a total lack of due process and no semblance of natural justice. The suspension was a complete nullity. Nothing could save it. There was no hearing in fact or in law and consequently nothing from which to appeal. [47] Before dealing with the main submission of the respondent as to why the decisions below should be sustained, I would like to deal with the reliance by both the Racing Commission and the Divisional Court on Rule 1.09 which reads in full: 1.09 If any case occurs which is not or which is alleged not to be provided for by the rules, it shall be determined by the judges or the Commission as the case may be, in such manner as they think in the best interest of racing. Provided however, the Commission in its absolute discretion may waive the breach of any of the rules, which waiver or breach the Commission does not consider prejudicial to the best interests of racing. [48] The track judges at no time purported to take refuge in this rule and it hardly lay in the mouths of the Racing Commission to invoke it on behalf of the panel whose ruling was in review. When pressed on this point, counsel for the respondent conceded that it was a weak argument and relied in the end almost exclusively on the submission that to the extent that there were any deficiencies in the hearing before the panel of track judges, they were cured by what counsel referred to as a trial de novo on the full appeal to the Racing Commission. [49] There are a lot of things wrong with this submission. First and foremost, there is nothing in the appeal provisions that provide for a trial de novo. Section 24.01 of the rules states: An appeal is a request to review any decision or rulings of the judges or delegated officials. [50] Second, while counsel for the respondent stated before the Racing Commission that she was proceeding as on a trial de novo, there is nothing in the reasons of the Racing Commission which acknowledges that it was proceeding on that basis. I find it most strange that a respondent in an appeal can unilaterally determine the nature and quality of the hearing to which the appellant is entitled. [51] Third, if counsel was intending to rely upon case law to the effect that procedural defects could be corrected by a full hearing on appeal, there is no statement by the Racing Commission that it was not accepting the original decision and was proceeding with a fresh hearing. [52] The difference between a trial de novo and an appeal was discussed in R. v. Dennis, [1960] S.C.R. 286, by Ritchie J of the Supreme Court of Canada in the context of interpreting s.727 of the Criminal Code, 1953-54, C.51. He said, at p. 290: As was said by said by Hogg J.A. in R. v. Crawford [[1955] O.R. 866 at 872, 113 C.C.C. 160.], the outstanding distinction between the trial de novo contemplated by s. 727 and the new trial which may be ordered by the Court of Appeal is that in the latter case the conviction has been quashed before the new trial starts whereas in the former the conviction remains outstanding, subject, however, to being reversed by the Appeal Court on evidence called afresh or indeed on entirely new evidence. In the one case, the conviction has gone while in the other it is under review by fresh eyes in the light of fresh evidence. On the other hand, the distinction between “an appeal by holding a trial de novo” and an appeal to the provincial Court of Appeal is that although the object of both is to determine whether the decision appealed from was right or wrong, in the latter case the question is whether it was right or wrong having regard to the evidence upon which it was based, whereas in the former the issue is to be determined without any reference, except for purposes of cross-examination, to the evidence called in the Court appealed from and upon a fresh determination based upon evidence called anew and perhaps accompanied by entirely new evidence. [53] Based on the above definition, I do not think there was a trial de novo in this case. First of all, the Racing Commission panel was aware of the decision of the track judges and that it had been implemented. The decision was not set aside with a view to making a fresh start with fresh evidence. The real reason for calling evidence was that there was no record of what had transpired before the track judges. In fact, the president of the panel had to be called to explain what had occurred and, in the course of so doing, justify his suspension of the appellant. While it is obvious from the reasons that the Racing Commission considered the evidence carefully, it is apparent that it did so to determine if it could justify the decision under review. For example the finding that Rule 1.09 was properly invoked due to the one-time extreme circumstances and the finding that “In our view, Caughey [the president] was justified in suspending McNamara on the spot.”. I do not think there was properly a “fresh determination”. [54] Rule 24(1) speaks of a “review” of a decision. This language describes exactly what happened. The Racing Commission reviewed the decision of the track judges below without any restrictions on what evidence it might consider. It is as if this court reviewed a decision of the General Division with the liberty to consider fresh evidence. [55] The leading case in Canada dealing with whether there is an appeal from a decision which is said to be a nullity is Harelkin v. University of Regina, [1979] 2 S.C.R. 561, where Beetz J. for the majority of the Supreme Court stated at p.580: IV – Whether the decision of the council committee was a nullity from which there could be no appeal The proposition that the failure to comply with natural justice renders a decision absolutely null rather than voidable is an old and much mooted one of a somewhat theoretical nature but with far reaching practical consequences. It was raised in Dimes v. Grand Junction Canal [(1852), 3 H.L.C. 759], where it was held that a decree of Lord Chancellor Cottenham rendered while he was disqualified from sitting as a judge on the ground of interest was merely voidable. But that was a case involving a superior court. The theoretical aspect of the question with respect to an inferior tribunal, was expressed but left unanswered by the Judicial Committee in White v. Kuzych [[1951] A.C. 585], at p. 598: . . . is the conclusion of a judicial tribunal acting within its jurisdiction, which is arrived at in a way which amounts to a denial of natural justice, appealable, or, on the contrary, is it simply void and thus not subject to an appeal at all? If there is nothing to appeal from, certiorari should then issue in all except the rarest of cases for the aggrieved party would have no alternative remedy to cure the injustice. This was the view taken in New Zealand in Denton v. Auckland City [[1969] N.Z.L.R. 256], and followed in England in Leary v. National Union of Vehicle Builders [[1970] 3 W.L.R. 434 (Ch. D), by Megarry J. who criticized the conflicting opinion of this Court in King v. University of Saskatchewan [[1969] S.C.R. 678], where Spence J., speaking for a unanimous Court, said at p.689: Any possible failure of natural justice before the special appeal committee, the executive committee, or the full faculty council, is quite unimportant when the senate, the appeal body under the provisions of The University Act, and also the body in control of the granting of degrees, has exercised its function with no failure to accord natural justice. If there were any absence of natural justice in the inferior tribunals, it was cured by the presence of such natural justice before the senate appeal committee. A similar matter was considered in Posluns v. Toronto Stock Exchange ([1968] S.C.R. 330), and Ritchie J., giving the reasons for the Court, distinguished the circumstances there present, where the second hearing was one in which the appellant was accorded a full measure of natural justice, from the situation in Ridge v. Baldwin, ([1964] A.C. 40), where, as Lord Reid pointed out at p. 79: But here the appellant’s solicitor was not fully informed of the charges against the appellant and the watch committee did not annul the decision which they had already published and proceed to make a new decision. In my judgment, what was done that day was a very inadequate substitute for a full rehearing. I am of the opinion that the situation here resembles that in Posluns v. Toronto Stock Exchange, supra, and that the hearing before the senate appeal committee, a small and very able body, was such as accorded the appellant every advantage of natural justice and rendered nugatory any alleged earlier failure to accord him such natural justice in any of the earlier hearings. [56] In support of the concept that a breach of natural justice or procedural fairness renders a decision void rather than voidable, LeDain J. for the court in Cardinal v. Kent Institution (Director), [1985] 2 S.C.R. 643, stated at 660: Certainly a failure to afford a fair hearing, which is the very essence of the duty to act fairly, can never of itself be regarded as not of “sufficient substance” unless it be because of its perceived effect on the result or, in other words, the actual prejudice caused by it. If this be a correct view of the implications of the approach of the majority of the British Columbia Court of Appeal to the issue of procedural fairness in this case, I find it necessary to affirm that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing. [57] Having the above discussion in mind, I can see no evidence in this case that the track judges ever purported to conduct a hearing respecting the conduct of the appellant. We are not dealing with a failure to accord with natural justice, we are dealing with a decision made without any hearing at all. That is why I say there is nothing to appeal from. In these circumstances the perception of lack of procedural fairness is paramount. The hearing before the Racing Commission could do nothing to correct this and indeed it made no attempt to do so. The clear message it sent was that it was prepared to protect its officials from abuse. [58] I have a great deal of sympathy with the Administration of the Ontairo Racing Commission, faced as it was with a flagrant contempt of its track officials, but the more egregious the contempt the more careful it should have been in proceeding against the appellant. This is not one of the “rarest of cases” which deprive the aggrieved party of the remedy of certiorari. The appellant was appearing on behalf of another and as such was in a position akin to counsel. When he acted in the way that he did, the panel of judges could have done one of two things: 1. Ejected him and proceeded with the hearing in his absence; 2. Ejected him and adjourned the proceedings until the respondent in the discipline proceedings could obtain new representation. [59] In either event, the panel could have invoked the contempt procedures available under s.13 of the Statutory Powers Procedures Act or proceeded on its own to charge the appellant under Rule 6.17(b) (c) and (d). In taking short cuts, the Administration ended up attempting to justify what was no more than a spontaneous, albeit understandable, outburst by a track judge to an abusive groom. Unfortunately, in my view, they will have to conduct a proper discipline hearing. [60] For the reasons set out above, I would allow the appeal, set aside the judgment of the Divisional Court and in its place make an order quashing the decision of the track judges. I would allow the appellant his costs in this court and in the Divisional Court. _______________________________ 1 6.17 A person, at any time or place, shall not against any official or participant: (b) threaten to do bodily injury; (c) use insulting, offensive or improper language; or (d) be guilty of any improper conduct. 2 6.03 Any participant charged with a violation of these rules shall be notified by the official of the rules allegedly violated. A hearing will be convened at a time and place determined by the official. In the event the violation occurs during the course of a race meeting, no hearing shall take place without the consent of the defendant until at least 24 hours have elapsed to enable the defendant time to prepare a defence, summon witnesses and arrange to be represented by counsel or any other person of his or her choice.