IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;

AND IN THE MATTER OF

STANDARDBRED OWNER MATTHEW SHIBLEY

STANDARDBRED OWNER/TRAINER JOSEPH SHIBLEY AND

STANDARDBRED OWNER/TRAINER PATRICK SHIBLEY

Standardbred Owner Matthew Shibley, Standardbred Owner/Trainer Joseph Shibley and Standardbred Owner/Trainer Patrick Shibley appealed to this Commission from Rulings issued on October 8, 2004 by the Standardbred Judges at Grand River, dealing with alleged misconduct with respect to the horse LAVROS STAR N which was entered to race at Grand River Raceway on July 30 and August 13, 2004.

Matthew Shibley appealed Judges’ Ruling Number SB32946 in which he was suspended for one year and fined $1,000 for violation of Rules 6.13(a), 6.20 (c), 6.21, 6.27, and 11.01(c). He also appealed Ruling SB32951 in which he was fined $200 for insulting, offensive and improper language and improper conduct towards the judges at Grand River on August 13, 2004.

Joseph Shibley appealed Ruling Number SB32950 in which he was suspended for 18 months and fined $2,000 for violation of Rules 3.10, 6.13(a), 6.20(c), 6.21 and 11.01(c).

Patrick Shibley appealed Ruling Number SB32947 in which he was suspended for 18 months and fined $2,000 for violation of rules 6.13(a), 6.20 (b) and (c), 6.21, 6.27 and 11.01(c).

A Panel of the Ontario Racing Commission consisting of Chair Lynda Tanaka and Commissioners Brenda Walker and Jane Garthson convened to hear the appeals on May 25 and June 28, 2005. Brendan Van Niejenhuis represented the Administration, and Richard Shibley represented the three Appellants.

On hearing the evidence of Matthew Shibley, Patrick Shibley, Joseph Shibley, Investigator Troy Moffatt and Judge Chuck Fraleigh, and on reading the exhibits filed and on hearing the submissions of counsel, the Panel made the following orders:

(a) The Panel dismissed the appeal of Matthew Shibley from Ruling SB32951 and upheld the fine of $200 for insulting, offensive and improper language and improper conduct;

(b) The Panel dismissed the appeal of Matthew Shibley from Ruling SB32946 and upheld the fine of $1,000 and the suspension for a period of one (1) year;

(c) The Panel allowed the appeal of Joseph Shibley with respect to the finding of a hidden training interest in the horse LAVROS STAR N in Ruling SB32950, and dismissed the appeal with respect to all other Rule violations as found by the Judges, and allowed the appeal in part with respect to penalty, substituting and ordering a penalty of:

(i) a fine in the amount of $1,000;

(ii) a full suspension for a period of three (3) months;

(iii) following the conclusion of the suspension, a period of one (1) year in which Joseph Shibley’s license as a trainer is limited to a class “F” license in accordance with the conditions in Ruling 116/2004;

(d) The Panel dismissed the appeal of Patrick Shibley from Ruling SB32947 as to liability, and allowed the appeal in part as to penalty, substituting and ordering a penalty of:

(i) a fine of $1,000;

(ii) a full suspension for a period of three (3) months;

(iii) a probationary period, following the conclusion of the suspension, of a period of a further three (3) months, during which period:

A. Patrick Shibley shall file with the judges copies of training agreements for horses he trains, excluding horses he owns solely and trains entirely in his own name and by himself;

B. Patrick Shibley shall file proper leases (if the horses are leased) with the judges and, in the event he owns or leases a partial interest in a horse but does not train the horse, he shall file the training agreement with the other trainer with the judges.

The Commission’s Reasons for Decision are attached to this Ruling.

DATED this 26^th day of September, 2005.

BY ORDER OF THE COMMISSION

John L. Blakney

Executive Director

REASONS FOR DECISION

Standardbred Owner Matthew Shibley, Standardbred Owner/Trainer Joseph Shibley and Standardbred Owner/Trainer Patrick Shibley appealed to this Commission from Rulings issued on October 8, 2004 by the Standardbred Judges at Grand River, dealing with alleged misconduct with respect to the horse LAVROS STAR N which was entered to race at Grand River Raceway on July 30 and August 13, 2004.

Matthew Shibley (“Matthew”) appealed Judges Ruling Number SB 32946 in which he was suspended for one year and fined $1,000 for violation of Rules 6.13(a), 6.20 (c), 6.21, 6.27, and 11.01(c). He also appealed Ruling SB32951 in which he was fined $200 for insulting, offensive and improper language and improper conduct towards the judges at Grand River on August 13, 2004.

Joseph Shibley (“Joseph”) appealed Ruling Number SB 32950 in which he was suspended for 18 months and fined $2,000 for violation of Rules 3.10, 6.13(a), 6.20(c), 6.21 and 11.01(c).

Patrick Shibley (“Patrick”) appealed Ruling Number SB 32947 in which he was suspended for 18 months and fined $2,000 for violation of rules 6.13(a), 6.20 (b) and (c), 6.21, 6.27 and 11.01(c).

Joseph has been an ORC licensee for many years and Matthew and Patrick are his sons. Matthew, aged 19 years, does not hold a trainer’s licence. Patrick, age 20 years, is licensed as an owner and trainer. He has held his trainer’s licence for 1 1/2 years.

Joseph was suspended at an earlier date as a result of declaring bankruptcy. By Ruling 116/2004 issued by the Director of Racing on May 26, 2004 his licence was reinstated on certain terms and conditions. One of the terms was that he could only train horses that he or a family member own. he could work for another trainer for a salary and he was prohibited from training at a public stable for one year. At the end of the year he could apply to have his licence upgraded. These terms and conditions are close to the terms and conditions of an F licence for trainers as provided for in Rule 26.02 (b). The A licence is not so limited and is valid for all meetings and permits the operation of a public stable at which such a trainer may train horses owned by third parties, i.e. people other than immediate family members or himself.

RELEVANT RULES

Rule 6.13 (a) provides as follows:

“A horse shall not be eligible to be entered to, or start in any race, if owned or controlled in whole or in part, by a suspended, disqualified, unlicensed or ineligible person.”

Rule 6.20 (c) provides as follows:

“A participant shall be guilty of a violation of the Rules:…(c) for committing or attempting to commit any other act injurious to racing.”

Rule 6.21 provides as follows:

“Providing inaccurate information about a horse, or attempting to have misleading information given in a program is prohibited and violators may be fined, suspended or expelled.”

Rule 6.27 provides as follows:

“In any investigation or case, whether or not an oath is administered, if the participant knowingly withholds information or misleads the investigators or the judges, it shall constitute a violation.”

Rule 11.01(c) provides as follows:

“A horse shall not be eligible to be declared in to race at any raceway unless:…(c) if leased, a copy of the lease is on file with, and is acceptable to Standardbred Canada. The horse must race in the name of the lessee.”

Rule 3.10 provides in part as follows:

“Where the licensee is suspended by the Director, the Judges… the suspended licensee shall be prohibited from participating in any activity regulated by the Commission. The suspension shall, in addition, render ineligible for declaration or starting, every horse in which the suspended licensee has any ownership interest or trainer responsibility. Eligibility for affected horses in such cases may be restored by transfer of the suspended licensee’s interest or responsibilities to another licensed person, if approved by the Judges of the meeting….”

EVIDENCE

The witnesses who testified before us were the three appellants, Investigator Troy Moffatt, and Judge Chuck Fraleigh.

Exhibit 1 is a brief of documents relevant to these appeals. Exhibit 1 (Tab B, 6) was headed “Shibley Stables” and provided as follows:

“The Shibley Stables will assume training responsibilities of horse Lavros Star N. The Shibley stables will pay all bills on this horse. And is entitled to 70% of all earnings for a period of 12 months From March 12, 2004 – March 12, 2005 or until the horse is sold or claimed. If the horse is to be sold both parties must agree. In the event the horse is sold or claimed the Shibley Stables are entitled to 30% of the Sale price.”

This document is signed above the names “Vito Agozzino” and “Paul V. Jones”, the registered owners of the horse. It is also signed by Patrick and Matthew.

This document is described to us as a “lease”, despite the complete omission in the document of that word or any word that might be commonly associated with the word “lease”. The document has no date of execution. There is no entity known as Shibley Stables, and Matthew is not licensed as a trainer. Joseph’s name does not appear on the document. The document was not filed with Standardbred Canada until the horse had been scratched by the judges. The document has apparently been accepted by Standardbred Canada as a lease of the horse Lavros Star N and the date of March 12, 2004 is noted on the Standardbred Canada printout dated August 27, 2004, which was filed as Exhibit 6.

This document in the plain meaning of the words addresses the matter of the training of the horse but not its ownership. It provides for a sharing of the earnings and a sharing of the proceeds of disposition. It also specifically provides for the expenses of the horse. The Administration has agreed that the document contains language that is sufficient in this industry to constitute a lease and reliance is made on the fact that Standardbred Canada referred to it as a lease later in the chronology.

There are several alternatives for the interpretation of this agreement bearing in mind the evidence before us. In any event, if the document is a lease and the lease is valid as of March 12, 2004, then Matthew should have been shown as owner on the program when the horse was entered to race on July 30, August 4 and August 13. If Patrick was a lessee/owner then his interest should have been transferred, and that transfer of ownership approved by the judges, at the time of his suspension in May 2004.

On May 26, 2004 a declaration of transfer of trainer was executed for 5 horses for the transfer of the training from Patrick to Joseph as trainer. The document was entered as Exhibit 1 (Tab B, 5). The judges were told at the time of the transfer that there was one other horse whose name had been forgotten, in addition to the horses listed. All the horses listed were all either owned by one or both of the two sons. The judges approved the trainer transfer. The list did not include Lavros Star N, allegedly because that horse was not racing. According to Joseph and his sons, it was to be trained by Joseph under this transfer and was the horse whose name was forgotten at the time of the May trainer transfer from Patrick to Joseph.

The horse Lavros Star N was entered to race on July 30, August 4 and August 14 as being owned by Agozzino and Jones (Exhibits 2, 3 and 7). Joseph was noted on the program as trainer of record on July 30 and August 4, and Robert Beacock was shown as trainer of record on the August 14 program.

On July 30 at Grand River the judges scratched the horse from the program. The lease was not presented to the judges on July 30. The horse was listed on the program as being owned by Agozzino and Jones. The judges’ interpretation was that since the horse was not owned by a family member or members, and since Joseph Shibley’s licence was limited, the horse could not race.

On August 4, the horse was again entered to race, this time in Windsor. On the way to Windsor the trailer broke down so the horse did not get to the track. Joseph, who was accompanying the horse, did get to Windsor and, while there, filed a Declaration for transfer of trainer for the horse Lavros Star N from himself to Robert Beacock (Exhibit 1 (Tab C, 5)). That trainer transfer was never approved. Joseph testified that Lavros Star N was “Matt’s horse” and he walked away from it and allowed Matthew to choose Robert Beacock as the trainer. Both of them knew Mr. Beacock. Joseph testified that his only involvement was to sign the form in Windsor and that otherwise he had nothing to do with this trainer transfer.

Robert Beacock had had his trainer’s licence in the past but had let it lapse. He had worked with this horse when it was trained by another trainer. According to Standardbred Canada’s records, he applied to renew his licence on August 4, the same day that Joseph attended in Windsor to race the horse and to apparently apply for the transfer of the trainer.

The judges requested an investigation of the training of this horse. Investigator Troy Moffatt gave evidence of his conversations with Joseph that led him to conclude that in fact Joseph continued to train the horse after it had apparently been transferred to Robert Beacock.

Investigator Moffatt testified that Robert Beacock was indeed at the barn at Flamboro Downs where Joseph’s horses were stabled, and in particular where the horse Lavros Star N was stabled. Mr. Beacock was doing the daily jobs that trainers and/or grooms do for horses. Investigator Moffatt testified that Joseph said to him that he knew it looked as if there was a shadow trainer situation here but he had been forced to do so by virtue of the constraints on his licence by the Commission. Joseph’s version of the events is that he said to the investigator, “I know this looks like a ghost trainer situation but I am not.”

Joseph testified that Robert Beacock had a great deal of knowledge about the training of this horse and that Mr. Beacock was responsible for hanging the horse up, changing the feed mix, and other matters related to the horse’s performance.

On August 13, the horse was again entered to race at Grand River Raceway. The judges did not permit the horse to race. It was again listed as being owned by Agozzino and Jones, but this time with Robert Beacock as the trainer. The appellants have not explained why, if Exhibit 1 (Tab B, 6) was a valid lease, the ownership was still shown in those names.

We note that the horse was not programmed to race between March 12 and August 27 with the Shibley’s noted as the owners as required by the Rules of Racing as the lessees of the horse. We also note that Patrick’s suspension for three months on May 14 was over on August 15.

At the judges’ hearing, the appellants said that there was a transfer of Patrick’s interests in the horse Lavros Star N to his brother Matthew Shibley, effective May 14, 2004. This document could not be located, apparently, until the hearing before this Commission panel and was not presented to the judges, either on July 30 or later.

The document was entered as Exhibit 4. It is typed and bears two signatures of Matthew Shibley and Patrick Shibley and is witnessed by their mother. It says:

“Patrick Shibley

339 HW 5 west

Dundas, Ontario L9H 5E2

I, Patrick Shibley, am hereby giving all my shares and interest (50% of current lease) on the horse on the Lavros Star N to my brother Matthew Shibley, To be effective May 14^th, 2004.”

Patrick is intending to continue as a fully qualified trainer and in argument counsel for the appellants indicated that Patrick had gone to extensive lengths to avoid involvement in racing during the three month period of suspension that he served between May 14 and August 14, 2004, so as to protect his reputation and his licence. The argument is that for this reason we should accept the transfer of ownership, Exhibit 4, as a valid document.

Given the history of the debate concerning the ownership and the fact that the judges dealt with this horse on at least three occasions where the ownership and the trainer issues were squarely raised, without this document appearing, we give Exhibit 4 no weight.

In assessing the credibility of the appellants and the other witnesses, we are mindful of the fact that the argument presented on behalf of the appellants in essence pointed the blame onto Matthew and exonerated Joseph and Patrick. We note also the opportunities that the appellants had to tailor their evidence to accomplish that goal.

CONCLUSIONS

With respect to the Rule violation under Rule 6.17(c) and (d) for use of insulting, offensive and improper language and improper conduct towards the judges, there is no disagreement on the evidence that Matthew, in the course of his appearance before the judges, swore and invited the judges to take away his licence. He threw his wallet up in the air. He justified his behaviour by alleging that one judge was unnecessarily aggressive and intimidating, standing up in the course of the judges’ hearing and pointing his finger at Matthew. Judge Fraleigh, the judge in question, appeared before us, as did Matthew. Judge Fraleigh testified that he did stand, and he spoke to Matthew to warn him about his conduct and the seriousness of the allegations, in face of Matthew’s attitude at the judges’ hearing.

There is a considerable height difference between Judge Fraleigh and Matthew in favour of Matthew who is 6 feet 6 to 7 inches tall. The Commission does not accept that there was any physical intimidation by Judge Fraleigh of Matthew and we find that Matthew’s conduct was entirely inappropriate. Indeed counsel for the appellants did not strongly argue this aspect of the appeal. The Commission will not tolerate conduct such as Matthew displayed, and we dismiss the appeal and impose the fine of $200.

With respect to the ownership interest of Matthew and Patrick we reluctantly find that the horse was leased to them with the named owners, Vito Agozzino and Paul Jones, holding an ownership interest as well under the terms of the lease. Therefore the lessees’ names should have been noted on the program for July 30, August 4 and August 13. Since Patrick’s license was suspended the horse should not have been entered as he had not disposed of his interest in the horse during the period of his suspension and no approval of the disposition of his interest was given by the judges pursuant to Rule 3.10. Indeed they were not advised on May 15 when he was suspended that he owned or rather leased the horse.

With respect to Ruling SB32946 concerning Matthew, the evidence of his brother and father and the documents before us support the judges’ finding of the rule violations as alleged. We note his age and relative inexperience, and the fact that he is continuing his education. We therefore impose a $1,000 fine and one-year suspension as penalty.

With respect to the allegation that Joseph was training the horse Lavros Star N and not Robert Beacock when the horse was entered to race at Grand River on August 13, the Administration relied on the feed bills and vet bills for this horse, which carried Joseph’s name. The evidence is that Joseph is frequently not the payor, whether or not there is an issue of a shadow trainer. Therefore the bills (and who paid them) do not give us a clear indication in this case.

The Administration also relied on Investigator Moffatt’s evidence concerning what was portrayed as an admission by Joseph that he was in fact a hidden trainer.

We find that Joseph had good reason to be concerned or defensive in his meeting with Investigator Moffatt and therefore to anticipate the allegation as to the hidden trainer. By the date of the meeting with investigator Moffatt, Joseph was well aware that there was a significant potential that he would be in more trouble with the judges, given the lack of proper documentation. The horse had already been scratched by the judges. Joseph was training under conditions imposed by the Director of Racing’s Rulings. His statement to assure the investigator that he was not in a hidden trainer situation was predictable, whether or not it was true.

We find that there is sufficient evidence that Robert Beacock was hired to train this horse as he had in the past successfully, albeit while he had been under the supervision of another trainer, and was properly programmed as trainer on August 13. The evidence establishes that Mr. Beacock changed the feed, the harness and regimen for training this horse based on his earlier knowledge and that he was physically involved in the training of this horse.

The timing is important in this matter: Patrick’s suspension was to be over within two weeks of Joseph’s going to Windsor to file the trainer transfer. Patrick could thereafter train horses, as he had intended to before he was suspended.

We find that there was no intention to transfer the horse’s training to Robert Beacock permanently. Rather, the transfer was intended to be temporary until Patrick was reinstated. In those circumstances and given the limited time frame, we attribute the fact that the horse was not physically removed from Joseph’s stalls to his obvious ignorance of the Rules and not to a desire to continue to train the horse.

Therefore, while we would normally find insufficient evidence of the transfer of training responsibilities established on the documents and in testimony before us, we are prepared in this instance to accept that Joseph intended to and did transfer the training temporarily. His licence had been suspended for some period due to bankruptcy and we ascribe to him the knowledge that he should attempt to get back “on side” at least to the extent of transferring the training responsibilities. He had every reason to expect that the ORC investigators would be looking into his situation. We are satisfied with his explanation as to his statements to Investigator Moffatt.

With respect to the remaining allegations against Joseph, we find on the evidence that he has violated the Rules of Racing as alleged. His position on the essential issues is ambiguous and structured to do minimum damage to himself, while being inconsistent. He had no proper training agreement for any of the horses, including Lavros Star N. Much of the confusion and allegations against him could have been responded to effectively if his paper work had been more complete and bore some semblance to what should have been the proper management of the training and ownership of the horse. His business practices are sloppy and his business records are incomplete. There is little to commend his performance throughout this chronology.

Mindful of the fact that he is successful on one of the rule violations and that he is attempting to re-establish himself after his bankruptcy, we reduce his penalty to a 3 month full suspension with an additional one year period in which his license is limited to an F licence in accordance with the conditions imposed in Ruling 116/2004. The fine is reduced to $1,000.

The fact that we have extended the period for limitations on Joseph’s licence to one year following a 3 month full suspension reflects our deep concern that for all the years Joseph Shibley has been in racing he has not developed the appropriate business practices nor the appropriate attitude towards the judges and Rule compliance. The lengthy period of supervision and limitations on his involvement in racing reflects our real concern as to his continued involvement in the industry and the need for the protection of the public.

With respect to Patrick, like his father, his business practices are shoddy. The lease was undated, incomplete and not filed as required with Standardbred Canada. He relied on an oral transfer of ownership of his interest in Lavros Star N to his brother and only too late in the process to be credible produced a written transfer, and that in the most basic of forms. If that transfer were a true document, then there should have been another document transferring his interest back to him. Only the fact that both the Administration and the appellants were agreed to accept the original document Exhibit 1 (Tab B, 6) as a lease convinced us that we should.

At this point we caution these licensees and others who may follow a similar form that a lease in this form is inadequate. This form of document will not be accepted in the future by this Commission as anything more than what the plain meaning of the words express, a very brief agreement as to training obligations, and payment for that training.

We dismiss Patrick’s appeal. In determining the appropriate penalty we note that he is young and relatively inexperienced and clearly, as in the case of Matthew, Joseph is the dominant figure of the three. Patrick withdrew to live away from his family rather than be perceived as being involved in horse racing while suspended. As penalty, we suspend his licence fully for three months and, for the following three months, he will be on probation on condition that he must file with the judges copies of training agreements for horses he trains, excluding horses he owns solely and trains entirely in his own name and by himself. He must file proper leases (if the horses are leased) with the judges (as well as what may be required by Standardbred Canada). In the event that he owns a partial interest in a horse or leases a partial interest but does not train the horse, he must file the training agreement with the other trainer with the judges. We reduce the fine to $1,000.

In all cases the periods of suspension are in addition to and to be served separately from any other outstanding suspensions. In assessing the evidence and the penalties that might be imposed we are mindful of the limited period of time over which these events occurred and also that the horse was scratched so that wagering was not affected and no race outcome was affected as well. In this regard, the judges have fully discharged their obligations to protect the public by providing decision making at the tracks in accordance with their responsibilities.

DATED this 26^th of September, 2005.

_______________________________

Lynda Tanaka

Chair