Ontario Racing Commission

TB

RULING NUMBER COM SB 041/2009

COMMISSION HEARING TORONTO, ONTARIO – DECEMBER 17, 2009

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

AND IN THE MATTER IN THE APPEAL AND REQUEST FOR HEARING OF

STANDARDBRED LICENSEE STEVEN BINKLEY

On June 8, 2009, the Judges issued Standardbred Official Ruling SB 39077 wherein Steven L. Binkley (“Binkley”) was suspended for three years – June 15, 2009 to June 14, 2012 and fined $5000 for the following reasons:

Mr. Binkley did commit acts of fraud, violated rules of conduct, raced with hidden ownership, failed to have proper owner-trainer agreements and to keep proper records and placed his interests above those of this owners while participating as the trainer of record with respect to Most Wanted Benka from Nov 15, 2007 to the present; Jers Gazou in Feb and March 2007 and Million Dollar Pier from May 28, 2008 to Oct 1, 2008.

On June 8, 2009, in accordance with Ontario Racing Commission (“ORC”) Rules 6.01(d) and 26.01(d), the Judges also issued Standardbred Official Ruling SB 39078 wherein the following condition was placed on the licence of Binkley for two years following the completion of his suspension (June 15, 2012-June 14, 2014): “Steven Binkley shall only possess a trainers licence in the “f” category, a licence restricted to the training of horses while owned by himself and/or his immediate family members”.

On June 14, 2009, Binkley filed a Notice of Appeal.

On June 23, the Executive Director of the ORC issued Ruling Number S.B. 84/2009 wherein he denied Binkley’s request for a stay.

On November 4, 2009, a Panel of the ORC, comprised of Chair Rod Seiling, convened for the purposes of hearing Binkley’s appeal. Binkley requested an adjournment of the Hearing on the basis that he wished to retain counsel. The Panel adjourned the Hearing to December 17, 2009, with the date being peremptory on Binkley.

On December 17, 2009, a Panel of the Ontario Racing Commission, comprised of Chair Rod Seiling, convened for the purposes of hearing Binkley’s appeal.

Jennifer Friedman appeared on behalf of the Administration of the ORC. Bob Burgess attended on behalf of Binkley.

After reviewing the evidence, including an Agreed Statement of Facts, hearing the testimony of ORC Investigator Charles Beirnes, ORC Senior Judge Bill Maertens, Ronald Benson, Michael O’Connor, and Binkley, and upon considering the closing submissions, the Panel denied the appeal as follows:

i) The $5,000 fine is affirmed;

ii) The suspension portion of the penalty is varied to four years from three;

iii) Eighteen months of the four year suspension shall be stayed;

iv) The stay of eighteen months of the suspension will immediately expire should the current Ontario Provincial Police investigation into his business dealings result in another conviction;

v) Time served by Binkley from June 15, 2009 to December 23, 2009 (one hundred and ninety-one days) shall be deducted from the remaining suspension;

vi) The suspension (seven hundred and nineteen days) shall run from December 24, 2009 to December 13, 2011;

vii) Prior to his becoming eligible for an ORC licence, he will be required to prove to the satisfaction of the Director of the ORC that he is worthy of such a privilege;

viii) If the Director is satisfied as to the suitability of Binkley as a licensee, the two year probation (i.e. Binkley shall only possess a trainers licence in the “f” category, a licence restricted to the training of horses while owned by himself and/or his immediate family members) will commence immediately upon reinstatement;

ix) At the conclusion of Binkley’s two year probationary term, he must again satisfy the Director as to his suitability to hold a regular trainer’s licence.

The Panel’s Reasons for Decision is attached to this Ruling.

DATED at Toronto this 24th day of December 2009.

BY ORDER OF THE COMMISSION

Rob McKinney

(Acting) Executive Director

REASONS FOR DECISION

Overview

1. Steven Binkley appealed a decision of the Ontario Racing Commission (ORC) Judges , SB 39077, wherein he was suspended for a period of three years, fined a sum of $5,000 for violating SB Rules No. 1.09, 3.09.01 (a), (b), (c), (e), (g), (j), 6.20 (a), (b), (c), 6.21, 6.27 and 11.08. Furthermore, in regard to that full suspension under Ruling SB 39078, conditions were imposed upon him for a period of two years following the expiry of the suspension whereby he was limited to a “f” trainer’s licence which permitted him to train horses that he or his family members owned.

Background

2. The ORC received notice of a complaint regarding purported dealings between the appellant and Ron Benson from David Clark. On December 16, 2008, ORC Investigator Charles Beirnes was assigned to the case.

3. Legal counsel for the Administration for the ORC, Jennifer Friedman, and for the appellant, Robert Burgess, tabled an Agreed Statement of Facts (Ex. 3). The Agreed Statement of Facts did not address the issues related to the alleged fraud, failing to properly disclose his record and misleading investigators.

4. Mr. Burgess agreed that the appellant was in breach of the rules related to the requirement of a contract between an owner and a trainer and also that he raced a horse in his name that belonged to another person. He submitted that the proper place for the other matters was at small claims court. Undisputed testimony indicated that Mr. Binkley owes Mr. Benson about $3,500. There is also an issue related to the ownership of a race bike that Mr. Michael O’Connor claims he owns and was unlawfully taken by Mr. Benson. Mr. Burgess is correct in that both of those matters need to be heard at small claims court.

5. Mr. Benson became a new owner upon meeting Mr. Binkley and purchased the horse, Most Wanted Benka for $5,000 in the latter part of November, 2007. Mr. Benson paid for the horse via a cheque that was cashed by the seller, a Mr. Monty McCrea. As per the Agreed Statement of Facts, there was no training agreement between Benson, the owner, and Binkley, the trainer, as required by SB Rule No. 3.09.01 (c) and the horse was registered in the name of Steven Binkley (Ex. 1, tab 3, # 26, p321). Uncontradicted testimony from Mr. Binkley was that Mr. Benson requested that he not be listed as the owner due to personal issues with his wife.

6. Mr. Binkley told ORC Investigator Charles Beirnes that he owned the horse, not Mr. Benson. He submitted that Mr. Benson had loaned him the money for the horse. Mr. Binkley subsequently admitted that Mr. Benson was the rightful owner. He also misled Mr. Beirnes as to where he was living and according to Mr. Beirnes, his training bills (Ex. 1, tab 3, # 14) appear to be made up and that he still has not received other documents he requested from Mr. Binkley such as phone and bank records.

7. Mr. Binkley testified that he had tried to contact Mr. Benson to resolve their dispute related to the horse but Mr. Benson was uncooperative. He had been caring for the horse for some time and wanted something in return. The Chair suggested, and it was agreed at the conclusion of the hearing, that ORC Judge William Maertens attempt to facilitate a resolution to the dispute given that both parties were present. The Chair was informed by Judge Maertens following the conclusion of the hearing that Mr. Binkley had agreed to return the horse to Mr. Benson.

8. Mr. Benson, with the assistance of the appellant, believed that he purchased the horse, Jers Gazou in February of 2008, from Tanya Backus and Mike Stoikopoulos for $2,500 cash. No bill of sale was involved in the transaction. Jers Gazou was registered in the name of the appellant (Ex. 1, tab 3, #25, p 316). In March of 2008, Mr. Binkley sold the horse to Bert Moore (Ex. 1, tab 3, #25, p 320). The horse was shod by Jim Ellis upon its delivery to Mr. Benson at Putnam Training centre. Mr. Benson paid in cash with no receipt being issued. Mr. Binkley testified that Mr. Benson had loaned him the money. No documentation was submitted to support that claim.

9. In May of 2008, Mr. Benson believed that he purchased 50% of the horse, Million Dollar Pier, in a transaction arranged by Mr. Binkley. He gave the appellant $1,300 in cash but did not have any particulars regarding the horse nor did he pay any training bills for the horse. The horse was never registered in either Mr. Benson or Mr. Binkley’s name (Ex. 1, tab 3, # 24, p 310). Mr. Binkley later sold the horse to Robert Sparling Senior, Patricia Sparling and Karen McPhee. Mr. Binkley did not receive any of the proceeds from that sale but had the cheque made out in the name of his girlfriend.

10. Mr. Beirnes testified that he found Mr. Benson a credible witness and that his statements to him were able to be verified as per the following interviews he conducted.

11. Investigator Beirnes interviewed standardbred driver, David Clark, on January 22, 2009, (Ex. 1, tab 3, # 4). Mr. Clark informed him that he had been approached by Mr. Benson and told him about Mr. Binkley refusing to transfer the ownership of the horse, Most Wanted Benka, (Clark had driven the horse in a race) and that he also owned two other horses, Million Dollar Pier and another that he was not sure of its name.

12. On January 23, 2009, Investigator Beirnes interviewed Jim Ellis (Ex. 1, tab 3, # 5). Mr. Ellis confirmed that both Mr. Benson and Mr. Binkley approached him at the Putnam Training Centre and requested that he shoe a horse for them. Mr. Binkley introduced Mr. Benson as a new owner. Mr. Benson paid cash for the service. Mr. Ellis did not know the name of the horse but based on the records it is reasonable to assume it was Jers Gazou.

13. On January 28, 2009, Mr. Beirnes interviewed Mr. Buck at Mohawk racetrack. Mr. Buck told him that in May of 2008, Mr, Binkley approached him about purchasing the horse, Million Dollar Pier. On May 24, 2008, Mr. Buck and Mr. Binkley met at the Mohawk Inn with the horse’s owner, David Matson. Mr. Buck gave Mr. Matson a cheque for $1,000 for his 50% share in the horse and Mr. Binkley gave Mr. Matson $1,000 in cash. Upon receiving the ownership papers, Mr. Binkley requested that he place his share of the horse in Mr. Buck’s name.

14. On January 30, 2009, Investigator Beirnes met with Mike Stoikopoulos. Mr. Stoikopoulos confirmed that Binkley agreed to buy the horse, Jers Gazou, for $2,500, if it was delivered to the Putnam Training Centre. He delivered the horse in February of 2008, as requested, wherein he met two individuals, one being Mr. Binkley and received $2,500 in cash for the horse.

15. Interviews by Investigator Beirnes confirmed that Mr. Binkley advertised the horse, Million Dollar Pier, for sale and that Mr. Sparling Senior’s group purchased the horse for $2,415 from him. The recipient of the cheque was left blank but it was paid out to a Trudy McPhee (Binkley’s girl friend).

16. Mr. Binkley was not forthright on his licence applications. On his 2005 ORC licence application, he indicated that he had charges pending for fraud. On his 2007, 2008 and 2009 ORC licence applications, he indicated that he did not have a criminal record. The records show that he was convicted for fraud on October 19, 2005. The conviction was related to fraudulent acts in the horse racing industry. Mr Binkley’s reason for not answering in the affirmative was that he thought that he did not have a record given he received a suspended sentence and was required to make restitution (only repaid 1/6 in 4 yrs).

17. Mr. Binkley has not been declared bankrupt. He did start the process but did not complete it. He has outstanding debts of about $22,000. His only apparent income had been via horse racing but he has had a part time job since his suspension. Mr. Burgess submitted that he only knows racing and that because of his suspension he has already been penalized via lost income.

18. Mr. O’Connor attested to Mr. Binkley’s good character and stated that he was aware of his previous fraud conviction. Other support for Mr. Binkley was tabled via a letter from a Denise Buskamper from Texas. She had horses being trained by Mr. Binkley for a short duration before his suspension. It was noted that Mr. Binkley failed to tell the judges about this relationship.

Issue

19. Did Mr. Binkley mislead Investigator Beirnes? Did he fail to report his convictions on his licence applications as required? Was he fraudulent in his dealings with Mr. Benson? Was the penalty assessed by the Judges appropriate given the facts before them?

Decision

20. After carefully listening to the testimony and reviewing the evidence and the documents filed, the appeal is denied. The suspension portion of the penalty is varied to four years from three. Eighteen months is stayed on the basis of the resolution related to the dispute of the horse Most Wanted Benka. Furthermore, Mr. Binkley can accrue the time since his suspension by the Judges on June 8, 2009. The stay will immediately expire should the current Ontario Provincial Police investigation into his business dealings result in another conviction. Prior to his becoming eligible for an ORC licence, he will be required to prove to the satisfaction of the Director of the ORC that he is worthy of such a privilege. If he were to become licensed, at the end of his probationary term, he must again satisfy the Director as to his suitability to hold a regular trainer’s license.

Reasons for Decision

21. On a balance of probabilities, it is reasonable to conclude that Mr. Binkley misled ORC officials, that he failed to report his previous convictions on his license applications and that he wilfully defrauded Mr. Benson. None of the aforementioned rule violations are technical in nature as submitted by Mr. Burgess, and when added to the two violations he admitted to breaching, he clearly has demonstrated a total disregard for the Rules of Racing.

22. Mr. Benson paid for all three horses. No documentation was presented to prove Mr. Binkley’s assertion that the money transactions were loans. Mr. Benson told Mr. Clark that he owned three horses which certainly supports his testimony that all three transactions were for purchases, not loans. Further support is the fact that Mr. Benson paid for the shoeing of Jers Gazou. It is reasonable to expect the owner to be responsible for paying for the services performed for their own horses. It was Mr. Benson who stepped forth, not Mr. Binkley.

23. In terms of credibility, Mr. Benson’s assertions as to ownership of the horses are supported by evidence provided by Investigator Beirnes. When compared with the circumstances of Mr. Binkley’s dealings of unrecorded transactions and a payment to his girlfriend for a horse he claimed he owned only serves to reinforce the conclusion that Mr. Binkley was involved in some type of scheme.

24. The evidence clearly indicates that Mr. Binkley failed to disclose on his licence applications his prior convictions as he was required. If he had any doubt as to what was required, all he had to do was ask the Commission representative. No evidence was led that he did so.

25. The evidence is clear that he misled Commission officials as it relates to the ownership of Most Wanted Banka and as to where he was living. Licensees are required to be truthful.

26. Mr. Binkley had already admitted that he had breached the rules requiring a contract with an owner and racing a horse under hidden ownership, the latter a direct attack on racing’s integrity.

27. Therefore, Mr. Binkley, as the Judges determined, is guilty of violating SB Rules Nos. 1.09, 3.09.01 (a), (b), c, (e), (g), (j), 6.20 (a), (b), (c), 6.21, 6.26. 6.27,11.06 and11.08.

28. Notwithstanding there are financial issues best resolved by the courts as to their disposition, the Judges’ actions were appropriate based on the information they had before them. Failure to act was not an option. As a delegated authority, they too have a responsibility to protect the public interest.

29. Let there be no doubt, the starting point for the Commission in cases like this is to protect the public interest, a key mandate as outlined in the Racing Commission Act. The Commission has, and continues to espouse the need and importance of integrity in horse racing. Chair Sadinsky in the Flamboro Downs and the Belmont Hotel, SB 129/1995 at 2 stated and we subscribe, “Horse racing must be conducted and be seen to be conducted with the utmost integrity. The future of the horse racing industry depends on maintaining the public’s confidence that it is being operated totally ‘above board’.”

30. Unfortunately, some in the sport just don’t get it, horse racing does not have the luxury of time; it is under attack. Integrity must win out or there will be no future.

31. As we have stated many times, a Commission licence is a privilege, not a right. As a licensee, one is expected to conform to the rules. As Judge Maertens testified, Mr. Binkley just does not get it. He was given a second chance, notwithstanding his failure to disclose, and reverted to his old habits. This Commission has a policy about rehabilitation, but it is not about to give second and third chances without proof the individual has reformed and will obey the rules.

32. Licensees who flaunt the rules such as Mr. Binkley and then assert a right to continued privileges because they only “know” racing need to understand that claim rings hollow when weighed against the collective rights of the thousands of law abiding licensees . Many of them also only “know” racing and for them, it is their lifeblood and that for their families as well. It is patently unfair and unreasonable to allow their futures to be jeopardised by such individuals. In this case, the evidence is clear, cogent and compelling against the appellant. The suspension is appropriate given the breaches.

33. The issue and role of penalty is well documented in previous rulings, particularly as it relates to S 718 of the Criminal Code of Canada and need not be restated. For reference please refer to the Brown Ruling, SB Ruling No. 038/2009.

34. Before dealing with some of the precedent cases referenced, it is important to note that in relation to fraud, the defining aspect is not the amount but the wilful act. Mr. Binkley’s actions were wilful. Furthermore, in this appeal, the Panel is faced with a number of rule breaches, some more serious than others one could submit, but nonetheless, in the aggregate, one cannot escape the magnitude nor the apparent cavalier attitude of Mr. Binkley.

35. Therefore, the precedent cases referenced are of limited value given they primarily deal with fewer rule violations. On the fraud matter, it is recognized that there have been very few instances as Judge Maertens testified, and that the Berkeley Ruling, SB 3/2002, with its 5 years and $100,000 penalty was an upper limit. While the scheme in Berkeley was elaborate and complex in nature, it was wilful just as Mr. Binkley.

36. The Castelo Ruling, TB 001/2009, the Manneke Ruling SB 020/2009 and the McNulty Ruling, SB 018/2009 serve to indicate just how serious the Commission views its role in protecting the public interest as it relates to licensing individuals who may be unfit due to their past misdeeds. The individual time frames and or fines are not absolute. The industry cannot hope to succeed if it is seen to allow Damon Runyon type characters to hold a licence. The public interest demands that firm action be taken, both as a sign that such individuals are not welcome and when occurring, stern action can be expected to serve as a deterrent.

DATED this 24th day of December 2009.

Rod Seiling

Chair