IN THE MATTER OF THE ONTARIO RACING COMMISSION ACT, 2000, S.O. 2000, c.20
AND IN THE MATTER OF STANDARDBRED OWNER/TRAINER
SHAWN ROBINSON
AND IN THE MATTER OF OWNER/GROOM, JULIE ROBINSON
AND IN THE MATTER OF JUDGES’ RULING NO. SB31274
DATED MAY 28, 2004
Standardbred owner/trainer Shawn Robinson appealed the decision of the Judges dated June 15, 2004 in RULING SB 31291 in which Mr. Robinson was fined $2,500.00 and suspended thirty (30) days for breaches of Rules 5.11 and 6.27 for refusing to comply with the direction of the Judges and knowingly withholding information from and misleading the Judges.
Standardbred owner/groom, Julie Robinson, appealed the decision of the Judges dated June 15, 2004 in RULING SB 31292 in which she was fined $2,500.00 and suspended thirty (30) days under Rule 26.05 and for breach of Rule 6.27 for being “jointly responsible” for Mr. Robinson’s alleged breach of Rule 5.11 and for knowingly withholding information from and misleading Investigators and Judges.
Mr. and Mrs. Robinson additionally appealed RULING SB 31274, dated May 28, 2004, whereby the horses DEALIN STRAIGHT, HEADONSTRAIGHT, PATH OF RESOLVE, and STRAIGHTTOTHEFRONT were suspended indefinitely pending a proper trainer transfer approval.
This appeal was heard by Vice Chair Todd, Commissioner Garthson and Commissioner Kelly on July 27, 2004 and September 3, 2004. Both Mr. and Mrs. Robinson were represented by Gerald Sternberg while the Administration’s counsel was Tim Snell.
The Panel heard the evidence of Investigator Colin Coleiro, Senior Judge Gary Cahill, owner/trainer/driver George Zirnis, and Julie Robinson, and decided unanimously to allow the appeal in part as follows:
Mr. Robinson’s appeal in respect of Rule 5.11 and Mrs. Robinson’s appeal in respect of Rule 26.05 are allowed.
Mr. and Mrs. Robinson’s appeals in respect of Rule 6.27 are dismissed to the extent that they have been found to have misled Investigators and/or the Judges, although they did not knowingly withhold information from the Investigators and/or Judges.
The horses DEALIN STRAIGHT, HEADONSTRAIGHT, PATH OF RESOLVE and STRAIGHTTOTHEFRONT may, only after December 31, 2004, be transferred by their current owner Antoinette Liberto or any subsequent owners, to the training, care, custody and control of the Mr. and Mrs. Robinson without further approval, order or direction being required from the Judges of the Ontario Racing Commission.
Mr. and Mrs. Robinson are each suspended for 15 days, the date to be agreed between the Parties, or, failing which as directed by the Commission, and they are also each fined $1,500.00, payable on or before the last day of the suspension and before they can participate directly or indirectly in racing again.
DATED this 8^th^ day of October 2004.
BY ORDER OF THE COMMISSION
John Blakney
Executive Director
REASONS FOR DECISION
Nature of Appeal
Standardbred owner/trainer Shawn Robinson has appealed the decision of the judges at Woodbine Racetrack dated June 15, 2004 in which Mr. Robinson was fined $2,500.00 and suspended thirty (30) days for refusing to comply with the direction of the judges and knowingly withholding information and misleading the judges.
Similarly, standardbred owner/groom, Julie Robinson, has appealed the decision of the judges at Woodbine dated June 15, 2004 by which she was fined $2,500.00 and suspended thirty (30) days for similarly being “jointly responsible” for knowingly withholding information and misleading investigators and judges.
Both Mr. and Mrs. Robinson, as aforesaid, have additionally appealed the Standardbred Official Ruling of the judges at Woodbine dated May 28, 2004, SB No. 31274, whereby the horses DEALIN STRAIGHT, HEADONSTRAIGHT, PATH OF RESOLVE, and STRAIGHTTOTHEFRONT, were suspended pending a proper trainer transfer approval.
This appeal was heard by a panel consisting of Vice Chair Todd, Commissioner Garthson and Commissioner Kelly, on July 27, 2004 and September 3, 2004.
The following are the reasons for the unanimous decision of the panel as aforesaid.
Both Mr. and Mrs. Robinson were represented at this appeal by Gerald Sternberg while the Administration’s counsel was Tim Snell.
EVIDENCE AND FACTS
On this appeal, the panel heard the evidence of investigator, Colin Coleiro, Senior Judge Gary Cahill, owner/trainer/driver George Zirnis, and appellant Julie Robinson.
The matters of immediate issue in this appeal arose as a consequence of a positive TCO2 test incurred by trainer William Robinson, the father of appellant Shawn Robinson, on November 8, 2003 at Mohawk Raceway and a series of events, proceedings, directives and orders of both the judges and the Administration of the Ontario Racing Commission thereafter. In this respect, it is noted that trainer, William Robinson, was advised on November 13^th^ of the positive test and that instructions were given to him and that “there should not be any owner or trainer transfers without the approval of the judges or head office” of the Ontario Racing Commission.
As is evidenced by Exhibit 1, Tab 11, being a ruling of the judges at Woodbine dated December 20, 2003, and Exhibit 1, Tab 13, being an order of the Executive Director dated December 24, 2003, there were directives and rulings well published and in the public domain dated December 21 and 24, 2004, to the effect that any horse trained by William Robinson or under his care could only be released or transferred to another trainer, “with the consent of the judges at Woodbine Racetrack”.
It needs to be further noted by way of completing the background of this matter that trainer William Robinson resolved a number of issues outstanding with the Ontario Racing Commission, including the aforesaid positive TCO2 test of November 2003, in mid-April 2004. An order dated April 20, 2004 resolved a number of appeals of William Robinson and other judicial review litigation in conjunction with a lengthy suspension of trainer, William Robinson.
The proximate issues in this appeal commenced on or about March 1, 2004 when the two appellants approached the judges at Woodbine Raceway indicating that they were interested in training some horses and, in particular, a horse named CARLAND BUDDY, owned by the father of Julie Robinson, George Zirnis. The discussion between the appellants and the judges at Woodbine Raceway continued on March 4, 2004 at a further meeting wherein George Zirnis himself appeared and produced sufficient documentation for the judges to approve the transfer of CARLAND BUDDY to the appellant, Shawn Robinson. There was also discussion relating to the transfer of other horses that might have been associated with the suspended trainer, William Robinson.
No notes, orders, directives or written memoranda were produced by either the appellants or the Administration with respect to the particular details of the discussions between the appellants and the judges of the Administration on March 1^st^ or March 4^th^. It is suffice to say that the recollections of Judge Cahill and those of the appellants have variations in the detail of their respective recollections.
We heard the evidence of George Zirnis as to his recollection of the attendance with the appellants on March 4, 2004 before the judges. Although Mr. Zirnis is the father of Julie Robinson, we found his evidence as the only partially disinterested party to be succinct, forthright and clear. Mr. Zirnis indicated that Judge Cahill and Judge Webb and a third unnamed judge who concurred by nodding, indicated to the appellants as follows:
(a) any horses that William Robinson had raced or that showed in programs as racing with William Robinson as trainer were not permitted in the appellants’ barn; and
(b) “anything that had never raced” (“young horse”) were all right for the appellants to train. Mr. Zirnis did not recall Judge Cahill explaining any objective definition of what he understood a “young horse” to be. Additionally, Mr. Zirnis confirmed the evidence of Judge Cahill to the effect that there was absolutely no limitation so that the transfer prohibition of the Woodbine judges was somehow restricted to horses that had raced only on the Woodbine/Mohawk circuit under the name of trainer William Robinson. It should be noted that Mr. Zirnis’ evidence in this latter respect, albeit contrary to the interest of his appellant daughter, was given in the same straightforward and frank manner as his other evidence referenced above.
Both of the appellants have been found in violation by the judges of Rule 6.27 of the Rules of Standardbred Racing which prohibits licensees “knowingly withholding information or misleading the investigators or the judges”.
On May 4, 2004, the subject judges, now at Mohawk Raceway, made an order, being standardbred ruling SB 31251, that trainer Shawn Robinson, “provide the O.R.C. investigators and/or judges with all documentation relating to all the horses under his care from November 2003 up to the present…”
A significant volume of written information was provided to investigator Coleiro and also directly to the Administration and thereafter to the relevant judges. Investigator Coleiro’s Investigative Unit Report, being Exhibit 4 to these proceedings, contains dozens of pages of records produced either by the appellants themselves, their chartered accountant, or the owners of the appellants. It must be noted that both Investigator Coleiro and Senior Judge Cahill in their evidence acknowledged that they have no knowledge of any requisitioned records that were not produced by the appellants directly or indirectly on their behalf.
Investigator Coleiro confirmed that he was “not missing anything at the present time” that he had asked for or requisitioned in his investigation from Mr. and Mrs. Robinson. Additionally, Mr. Snell in his argument was kind enough to acknowledge that it appeared that the investigators and the Administration got everything they requisitioned. We note in particular the endorsement of Julie Robinson contained on the fax to the Racing Commission of May 3, 2004 (Exhibit 4, Tab 4, page 002) wherein it was noted
“To Whom It May Concern:
To avoid further misunderstanding, we will fax an updated list every Monday henceforth.
Thanks Julie Robinson”
With respect therefore to any allegation of withholding of information by the appellants, it is suffice to say that the evidence is substantially lacking in this regard.
The judges next met with the appellants on April 15, 2004 and on this occasion Investigator Coleiro was present. This meeting took place in the judges’ office at Mohawk Raceway. Judge Cahill confirmed his advice to the appellants that “we did not want to see horses coming from William Robinson going to them…” Again there were no memoranda, orders or written directives given to the appellants or anyone on their behalf concerning the discussions at this meeting. In cross-examination, Judge Cahill confirmed that his Senior Judge’s Report for April 15, 2004, while indicating a meeting with the appellants, did not indicate or confirm that his definition of a “race horse” had been given and/or repeated to Mr. and Mrs. Robinson.
At this meeting of April 15, 2004, Julie Robinson brought a list of horses presently in the SSR Stable (Shawn and Julie Robinson). Judge Cahill indicated that he had some questions about some of the horses on the list and asked again if any of them “came from the William Robinson Stable?” The answer was apparently in the negative.
Investigator Coleiro, by the use of his notes to refresh his recollection, further advised that Mr. and Mrs. Robinson were told that no horses were to be added to the stable inventory list (Exhibit 4, Tab 4, page 001) without notification to himself and/or Judge Cahill. Again from notes to refresh his memory, Investigator Coleiro referred to a directive from Judge Cahill regarding “horses” that came from Shawn’s father and “race horses” that similarly came from William Robinson. Again no written order, directive, memoranda or consolidation of what was requested or directed by the judges of the appellants on April 15, 2004 was ever prepared, documented or circulated.
One would have hoped that given the high profile of the suspension and cessation of training of standardbred race horses by William Robinson and the obvious concern of the Administration’s judges concerning the possibility of non-arms length transfers of horses from the William Robinson Stable that someone at some time, either on March 1^st^, March 4^th^ or April 15, 2004 could have taken the time to issue a short memorandum or written directive such as was done on May 4, 2004, standardbred ruling 31251 (Exhibit 4, Tab 5, page 001). The many hours of investigators’ time and the many hours of sifting through contradictory oral evidence might well have been obviated had this taken place.
The Ontario Racing Commission, in a number of its decisions and its amendments to both the Rules of Thoroughbred and Standardbred Racing over the last several years, has attempted to encourage a more professional and businesslike approach to many aspects of racing and the interface of the various licensees within the racing industry. This encouragement to raise the bar with respect to professional and businesslike practices must apply to all participants.
Both Judge Cahill and Investigator Coleiro referenced discussions surrounding the definition of a racehorse. Both state unequivocally that at the April 15^th^ meeting, the appellants were told that any horse that qualified or raced within ninety days of them taking possession of that horse was a prohibited horse if it had its previous origins with William Robinson.
Conversely, Julie Robinson was equally adamant that this so-called 90-day directive was only given to them on a meeting at May 4^th^ and not April 15^th^.
A further meeting transpired between the appellants and the Mohawk judges in the persons of Senior Judge Cahill, Judge Fraleigh, and Judge Lawrence, along with Investigator Coleiro on May 4, 2004. The appellants attended with John Walzak, the Chief Operating Officer of the Ontario Harness Horse Association. At this meeting, everyone had the benefit of Judge Cahill’s directive of May 4^th^ being a set of conditions placed on trainer Shawn Robinson’s license in the form and format of standardbred ruling 31251. This order was very precise in its directive that:
“No new horses shall be added to this stable without permission of the ORC judges at Mohawk.”
While the aforesaid official ruling goes on with respect to requiring disclosure as discussed above, it should be noted that there was no mention whatsoever of the so-called “90 day race horse rule”.
The evidence is that Judge Cahill circulated copies of the May 4, 2004 directive (Exhibit 4, Tab 5, page 001) to everyone present at the May 4^th^ meeting.
Investigator Coleiro also confirmed Mrs. Robinson’s statement to all present at the May 4^th^ meeting that there “may have been a misunderstanding with regards to horses…added to the stable since the meeting on April 15^th^.” Investigator Coleiro recalls Mrs. Robinson “just coming straight out and saying that that was a mistake”, i.e. the adding of horses to the stable inventory found at Exhibit 4, Tab 4, page 002. Mrs. Robinson went on to explain that the appellants had understood the transfer prohibition to be applicable only to those horses that had raced at Woodbine/Mohawk under the care and tutelage of William Robinson. Investigator Coleiro further indicated that the mistake and Mrs. Robinson’s explanation “seemed reasonable” to him. Judge Cahill was less forgiving in his view of Mrs. Robinson’s explanation noting that her interpretation was simply “not what was said”.
The suspension of William Robinson as a result of a positive TCO2 test in November of 2003, his subsequent appeals and the complex stays given by the Executive Director of the Ontario Racing Commission were high profile news and issues in the horse racing industry. Judge Cahill stressed on several occasions in his evidence the need to control the movement of horses from the William Robinson Stable to others and, in particular, the need for appropriate optics as it related to non-arms-length transfers of horses from the William Robinson Stable. The Executive Director of the Ontario Racing Commission in his stay ruling dated December 24, 2003 (Exhibit 1, Tab 13) was very precise and direct when he ordered that:
“Any horse trained by Mr. Robinson or under his care may be released or transferred to another trainer only with the consent of the judges at Woodbine Racetrack.”
Mr. Major in the aforesaid ruling did not differentiate between “horse” and “race horse”. The appellants in this matter must be taken to have some knowledge of that directive of the Executive Director which was extended at a later date past the January 24, 2004 termination date. The sum and substance of this ruling was not put to any of the defence witnesses.
DISCUSSION
The appellants have therefore presented to us a scenario whereby they claim to have misunderstood in part the oral direction of Senior Judge Cahill on March 1^st^, March 4^th^ and/or April 15^th^.When Senior Judge Cahill reduced the Administration’s directive to writing on May 4^th^, there was an immediate acknowledgment of misunderstanding and perhaps an error on the part of the appellants which to one of the Administration’s witnesses was “reasonable” and to another was simply “convenient”.
As was acknowledged by Judge Cahill, there is no definition of a “race horse” in the Rules of Standardbred Racing. Accordingly, the seeds of a potential misunderstanding may well have fallen on fallow ground in the unrecorded dialogue and discussion of March 1^st^, March 4^th^ and April 15, 2004 between the appellants and Judge Cahill.
The thrust of the Administration’s case with regard to the violation of rule 5.11 of the Rules of Standardbred Racing is that one or both of the appellants did not “comply with the directions of the judges…” We have some difficulty in understanding why the judges on either March 1^st^, March 4^th^ or April 15^th^ in the follow up to a high profile suspension such as William Robinson did not take the time or the effort through their own offices or that of Investigator Coleiro to note in writing the specific directions and definitions upon which they were relying. This might well have obviated the within turmoil, the apparent personality clashes between a senior official of the Commission and the appellants, and a number of other unfavourable optics referenced in the evidence as a whole.
That said, Mr. and Mrs. Robinson are not without fault in the subject issues and transactions. Their business records produced and delineated at a number of tabs within Exhibit 4 leave much to be desired. There are duplications and overlapping billings between the appellants, SSR Stable Inc., and those of Robinson Stables Inc. (William Robinson). When the appellants produced their business records for the required period and their owners produced the parallel original accounts, much explanation was required to sort out who in fact had day-to-day care, custody and control of certain horses and who in fact was the economic beneficiary of the training accounts once they were paid by the owners. These financial records and the explanations required to clarify same might well be said to be a prima facie case of misleading of the ORC’s investigators and/or judges.
Mr. Sternberg, in his argument, was sufficiently candid to agree that the appellants’ records “are a bit of a mess”.
The appellants are also concerned with Standardbred Official Ruling SB 31274 dated May 28, 2004 and found at Exhibit 1, Tab 3. This ruling suspended four horses owned by Antoinette Liberto. After this suspension, the horses were transferred to another approved trainer with no prior relationship to the William Robinson Stable. The appellants seek a finding that this suspension was unwarranted and that Ms. Liberto, if so advised, can return the four named horses in the order of May 28, 2004 to the barn of the appellants without further approvals by the judges.
ORC Investigator Coleiro interviewed Ms. Liberto with respect to the issue of care, custody and control of the four horses referenced in Exhibit 1, Tab 3. The evidence of care, custody and control given by Investigator Coleiro was not significantly contradicted. Apparently Ms. Liberto’s four horses had physically been at the farm training center of Shawn Robinson since early November 2003. Additionally, care, custody and control and training of these horses were with Shawn Robinson at his farm some fifteen minutes distant from the training facilities of William Robinson.
The business and banking records produced by the appellants and Ms. Liberto, however, only added to the quandary. It was not until April 2004 that she was billed for training the horses DEALIN STRAIGHT, HEADONSTRAIGHT, PATH OF RESOLVE and STRAIGHTTOTHEFRONT by the appellants under the style of SRR Stable Inc. The training accounts for November and December 2003 through at least February of 2004 were rendered by Robinson Stables Inc (William Robinson) to Ms. Liberto.
An interview by Investigator Coleiro of Ms. Liberto further confirmed that she paid her invoices, as aforesaid, to William Robinson under some arrangement whereby William Robinson was “farming out horses” to the appellants. We were likewise given in Exhibit 4 copies of statements from the appellants under the name of SRR Stable Inc. to Robinson Stables Inc. that covered “training fees” and “grooms’ fees” and “stable rent” for Ms. Liberto’s horses consistent with this “farming out” arrangement.
The existence of training accounts from the Robinson Stables Inc. to horse owners where actual care, custody and control of said horses was with the appellants is a matter that required much explanation and, again, gave the appearance of a violation of the Rules concerning the approval of trainer transfers.
After the undisputed discussions with the judges on March 1^st^ and March 4, 2004, the appellants must be taken to have recognized that “farming out” arrangements such as those with the Antoinette Liberto horses were either in and of themselves misleading or open to the appearances of misleading investigators. The appellants were far from prompt in remedying the questionable optics created by this “farming out” arrangement regarding the Liberto horses. We heard evidence of financial and economic reasons for the “farming out” arrangements, but these arrangements and the accompanying documentation clearly justified some of the early concerns of Judge Cahill and the Administration.
CONCLUSIONS
Standardbred Ruling 31291 found at Exhibit 1, Tab 7, alleges that trainer/owner Shawn Robinson violated Rule 5.11 of the Rules of Standardbred Racing in the he refused to comply with the direction of the judges in the factual matrix set out above.
While we have concerns that Mr. Robinson may not have taken the appropriate cognizance of Standardbred Ruling 268/2003 involving his father under date of December 24, 2003, we find on the evidence before us that any directions of Judge Cahill that were given to him on March 1^st^, March 4^th^ or April 15, 2004 and thereafter allegedly violated were equivocal and capable of more than one interpretation. The same may be said of Mrs. Robinson.
Shawn Robinson is additionally charged with a violation of Rule 6.27 of the Rules of Standardbred Racing. We have already concluded above that neither he nor Mrs. Robinson knowingly withheld information from the judges and/or the ORC’s investigators.
Rule 6.27 of the Rules of Standardbred Racing however continues by indicating that it is a violation of the Rules to mislead investigators and/or the judges. The appellants and owner, Ms. Liberto, contend that they were the de facto and day-to-day trainer of DEALIN STRAIGHT, HEADONSTRAIGHT, PATH OF RESOLVE and STRAIGHTTOTHEFRONT from November 2003 through April 2004. At the same time, however, the appellants participated in a “farming out” arrangement whereby William Robinson, suspended father of one of the appellants, continued on any reasonable objective basis to be at least in part the trainer of Ms. Liberto’s horses. This, in and of itself, is a misleading and deceptive arrangement and would implicitly be a concern to a regulator who must be able to identify without equivocation the actual trainer of a horse. These observations would be equally applicable to Julie Robinson.
The “in” dates provided on the SRR Stable inventories (Exhibit 4, Tab 4) for Ms. Liberto’s horses likewise can be said to be misleading.
For the above reasons, we have concluded that the appellants are guilty of a violation of Rule 6.27 through their participation in the “farming out” and “sub-contracting” arrangements delineated above. We do, however, note that there is some degree of cogent explanation based in economic and financial constraint.
The appellants, as above, are not guilty of knowingly withholding information from the investigators or the judges. In this respect, the appeal must be allowed and the appellants exonerated.
Each of the appellants has been fined $2,500.00 and given a full thirty (30) day suspension. For the reasons stated above, we have concluded that each of the fines should be reduced to $1,500.00 and each of the suspensions likewise reduced to a fifteen (15) day full suspension.
The regulator of racing is entitled to objectively know who is actually the trainer of a standardbred horse and who takes the economic benefit of the training bills and accounts.
With respect to the appellants’ issue with Standardbred Ruling SB 31274 and the four named horses owned by Antoinette Liberto, being DEALIN STRAIGHT, HEADONSTRAIGHT, PATH OF RESOLVE and STRAIGHTTOTHEFRONT (Exhibit 1, Tab 3), we heard Senior Judge Cahill’s acknowledgment that the Administration did not want to be overly punitive to either of Mr. Robinson’s sons, Shawn Robinson or Brett Robinson, after December 31, 2004. Judge Cahill confirmed that after that date, there should be no objection to Shawn Robinson being able to accept as trainer the standardbred racehorses owned by Antoinette Liberto. Senior Judge Cahill was not challenged or taken to task with respect to this proposed course of conduct and the accompanying industry optics. No other evidence was presented that would in any contradict Judge Cahill’s proposal and we, accordingly, accept his views and proposal in this respect.
Accordingly, the appeal is further allowed in that the horses, DEALIN STRAIGHT, HEADONSTRAIGHT, PATH OF RESOLVE and STRAIGHTTOTHEFRONT, subsequent to December 31, 2004 may be transferred by their current owner Antoinette Liberto or any subsequent owners, should they be so advised, to the training, care, custody and control of the appellants without further approval, order or direction being required from the judges of the Ontario Racing Commission.
Given that the above issue with regard to the Liberto horse suspension has been resolved, there would seem little necessity for Mr. Robinson’s license to be placed on probation until December 31, 2004 and for this reason, the appeal with respect to that probation is likewise allowed so that the probationary provision shall be stricken.
Should Mr. Sternberg, on behalf of the appellants, and the Administration be unable to agree as to the commencement date for the reduced period of suspension herein, this panel may be addressed to resolve the matter.
Dated at Toronto, this 7^th^ day of September, 2004.
_____________________
Larry Todd
Vice Chair