AMENDED RULING NUMBER COM SB 027/2014
COMMISSION HEARING TORONTO, ONTARIO – SEPTEMBER 23 & 24, 2014
NOTICE OF DECISION
IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF A REQUEST FOR HEARING BY
DANIEL LOUIS CREIGHTON, THE LICENSEE
On June 27, 2014, the Director of the Ontario Racing Commission made application for a declaration that the licensee participated in racing while his licence was under suspension.
The application for a Proposed Order against the licensee sought both a suspension of licence and a fine as penalties.
Dates of Hearing: September 23 & 24, 2014
ORC Panel: Elmer Buchanan, Chair Anthony Williams, Vice Chair John W. Macdonald, Commissioner
Counsel for the Appellant: James H. Cooke
Counsel for the Administration: Brendan Van Niejenhuis and Stephen Aylward
Decision:
The application for a Proposed Order against the licensee was granted.
The panel found that the licensee participated in racing while his licence was under suspension, in violation of Rule 6.10.01 of the Rules of Standardbred Racing.
The following penalties were imposed:
(i) The Suspension
the suspension is a full suspension;
the suspension is for nine months and five days;
the suspension includes the time already served under suspension since March 25, 2014;
the suspension will end on December 29, 2014;
the licensee is eligible to apply for reinstatement on or after December 30, 2014.
(ii) The Fine
- the fine is $5,000 (CAN).
The Panel’s Reasons for Decision is attached to this Amended Ruling.
DATED at Toronto this 1st day of December 2014.
Steven Lehman
Executive Director
REASONS FOR DECISION
THE OVERVIEW
Daniel Louis Creighton (“Creighton”) was the trainer of record for Quantum Cashman, a standardbred racehorse.
On June 17, 2012, this horse won the seventh race at Clinton Raceway.
A urine sample taken from the horse after the race resulted in a certificate of positive analysis of an official sample for the Class I drugs, codeine and morphine.
On September 23, 2013, a panel of the Ontario Racing Commission (“ORC”) accepted a joint submission as to penalty and imposed:
(i) a $10,000 fine, with $5,000 stayed;
(ii) a 1 year full suspension, with 6 months stayed; and
(iii) 2 years’ probation upon conditions.
Creighton’s licence as an owner, driver and trainer was suspended from September 25, 2013 until March 24, 2014.
On June 27, 2014, the Director issued two Notices against Creighton:
(i) Notice of Immediate Suspension; and
(ii) Notice of Proposed Order
- The Proposed Order sought two sanctions:
(i) a 2 year suspension; and
(ii) a $25,000 fine
The Notices alleged that Creighton continued “participation, either directly or indirectly, in racing” while his licence was under suspension.
On July 10, 2014, Creighton requested a hearing before a panel of the ORC.
On July 29, 2014, the Application by Creighton for a stay of the Order of Immediate Suspension was denied.
September 23 and 24, 2014, were scheduled for the hearing.
THE HEARING
On September 23 and 24, 2014, the matter was heard by a panel of the ORC.
The Administration called six witnesses:
(i) Pamela Young, Trainer;
(ii) David Hudson, Owner and Breeder;
(iii) Thomas Hamm, Owner, Driver and Trainer;
(iv) Thomas Litt, Owner, Driver and Trainer;
(v) Larry Hughes, Senior Standardbred Judge, and
(vi) Troy Moffatt, Investigator.
The Licensee called three witnesses:
(i) Daniel Louis Creighton;
(ii) John Arwood Allen, Stable Owner; and
(iii) Lynne Creighton, Bookkeeper for Danterra Racing Stable Ltd. and Danterra Standardbreds,
and Wife of the licensee.
- Six exhibits were entered into evidence:
(i) Ex. 1A, Book of Documents (Administration), Tabs 1 – 8, pp 1 – 336;
(ii) Ex. 1B, Book of Documents (Administration), Tabs 9 - 17, pp 337 – 646;
(iii) Ex. 1C, Book of Documents (Administration), Tabs 18 – 33, pp 647 – 899;
(iv) Ex. 1D, Supplementary Book of Documents (Administration), Tabs 1 – 11, pp 1-177;
(v) Ex. 2, Factum (Administration), Tabs A – J, pp 1 – 112; and
(vi) Ex. 3, Factum (Licensee) pp 1 – 6.
- The closing arguments of counsel were presented in written form:
(i) Submissions of the Administration, September 26, 2014;
(ii) Submissions of the Licensee, September 29, 2014; and
(iii) Reply Submissions of the Administration, October 1, 2014.
THE POSITIONS OF THE PARTIES
- The Administration
(i) Factum
“… despite Creighton’s full suspension, he had continual and uninterrupted involvement with the horse racing business.”
“… Creighton appears to have had considerable involvement with the operation and business decisions relating to the horses which were transferred to Hamm.”
Ex. 2, at p 9, paras 43 and 44
(ii) Opening Address
Creighton “involved himself … as a trainer in many decisions” involving the “care and control” of the horses “through the artifice of Mr. Hamm.”
(iii) Closing Submissions
“… the evidence establishes that despite his full licence suspension, Creighton continued to exert influence in the training, racing and sale of racehorses, despite the appearance of a transfer of the horses from his stable at Danterra Farms to the nearby Tom Hamm Stable.” at p. 1, para. 2
(iv) Reply Submissions
“… it may be – as the Administration has already said – that the panel will not conclude that Creighton was the day-to-day hands-on trainer of the six racehorses (two of which were returned to his care almost immediately).”
“But the evidence supports the clear inference that Creighton remained impermissibly influential in the Hamm Stable throughout, through his close connection to Pam Young.” at p. 2, para. 8
- The Licensee
(i) Factum
“While it is true that Mr. Creighton continued to work as a trainer, he did not train racing horses and had nothing to do with the training of horses he formerly trained and were still racing.” at p. 1, para. 3
(ii) Opening Address
“There is not a scintilla of evidence that Dan Creighton directed anyone.
… The horses were on auto-pilot. Feed, medication, care. That’s what Pam (Pamela Young) did. She is not the alter ego of Dan Creighton.”
(iii) Closing Submissions
“There is a litany of observations made specifically from which, and without any further inquiry, one could conclude that the licensee was involved in the management of these horses … There is not a case of circumstantial evidence where reasonable conclusions can be drawn from the evidence.
Rather this is a case of conjecture, which has resulted in a six month immediate suspension of Mr. Creighton without any recourse to due process in the interim.” at p. 6, paras. 40 and 41
THE ISSUE
- Did Daniel Louis Creighton, while under suspension, participate either directly or indirectly in racing?
THE RULES OF ENGAGEMENT
- (i) The Racing Commission Act
“Objects
- The objects of the Commission are to govern, direct, control and regulate horse racing in Ontario in any or all of its forms.
Duties
- The Commission shall exercise its powers and perform its duties in the public interest and in accordance with the principles of honesty and integrity, and social responsibility.
Powers
- The Commission has power,
(a) to govern, direct, control and regulate horse racing in Ontario in any or all of its forms;
(d) to license owners, trainers, drivers … grooms …and to impose those terms on a licence that the Commission considers expedient;
(k) to hold hearings relating to the carrying out of its objects or powers …
(ii) The Rules of Standardbred Racing
“1.01 … these rules shall apply to all … participants under the Commission jurisdiction.”
“3.03.01 …Every person licensed by the Commission is deemed to have agreed to abide by the conditions set out in the application for the licence, the licence itself, the Act, the rules and regulations thereunder.”
“6.10.01 Whenever a suspension is prescribed it shall be construed to mean an unconditional exclusion from the grounds of all associations where a licence is required and disqualification from any participation, either directly or indirectly, in racing …”
“6.13.01 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 ... person.”
“6.13.02 If a suspended, disqualified, unlicensed or ineligible person purports to transfer his or her interest in a horse during such period of ineligibility,
(iv) … the transferee must maintain wholly and independent financial interest from the transferor.” and
(v) … the transferee must conduct his business relating to the racing of Standardbred horses in a manner wholly independent of the transferor and neither the transferee nor the transferor influences the other in any matter whatsoever with respect to the racing of Standardbred horses.”
“26.15 The trainer of record of a horse shall be a licensed trainer who has the day-to-day care and or custody and or control of the horse and is responsible for the training, allocation or direction of training duties at the stable.”
(iii) Legal Principles
The burden of proof rests upon the proponent, the Administration;
The standard of proof is proof on a balance of probabilities;
The evidence must be “clear, cogent and compelling”;
It is the cumulative effect of all the evidence which must meet the standard of proof.
(iv) Precedents
- “Integrity is the fuel upon which horse racing rides. No integrity, no future for racing and the thousands of hardworking licensees who depend on it for their livelihood.…
“The Director serves as the gatekeeper in protecting both the industry and the horse …”
Re: Czupa, 2012 CanLII 92269 (ONRC); COM SB 010/2012; SB 44628, April 2, 2012, Ex. 3, Tab 5, at p. 6, paras 26 and 28
- “Participants in the industry must fulfill rigorous standards of conduct.”
Re: Martino, Nick [2000] O.R.C.D. No. 20, June 23, 2000, at para. 30,
Series No. SB 178, 2000.
- … To apply to be licensed, which is a prerequisite to such participation, is to accept the expectation of constant and vigilant supervision.” “… in a highly regulated industry … the individual is aware, and accepts, justifiable state intrusions.”
British Columbia Securities Commission v Branch 1995 CanLII 142 (SCC), [1995] 2 S.C.R.3,
THE COMPLAINT
- Q. …. so you received information to the effect that Mr. Creighton may still have been involved in racing after his suspension?
A. Yes.
Troy Moffatt, Transcript, Examination-in Chief, September 23, 2014, at p. 2, Q and A, 5
TEN FACTORS
- I. The Private Sale
(i) Final Report
“On September 26, 2013, Creighton sold his share of the horses Royal Outlook and Fashion Fun to Dave Hudson.
The money did a complete return to the original account.”
Final Report to Rob McKinney, June 6, 2014, Book of Documents Ex. 1 (c), Tab 29 at p. 867
(ii) Electronic Transfers
The transfers for the private sale of both Fashion Fun and Royal Outlook were registered on “September 26, 2013 at 2:20 p.m.” with Standardbred Canada
Applications for Transfer, Standardbred Canada, Book of Documents, Ex. 1 (b), Tab 14, at pp. 368-369
(iii) Troy Moffatt
Testimony
“… with the sale of Royal Outlook and Fashion Fun, his (Creighton’s), was a financial interest, in this case, twenty percent of each of those horses.”
Troy Moffatt, Transcript, September 23, 2014, Cross-Examination, A, number 65 at p. 23
(iv) Dan Creighton
Interview
“Dan Creighton sold Fashion Fun and Royal Outlook to Dave Hudson for $10,000 plus tax” …
The money was paid to Dan Creighton for the horses as the judges may want to see the money trail. The price was fair. Dan Creighton’s wife gave that money back to Dave Hudson and deducted it from what Dan Creighton owed Dave Hudson.
If Dan Creighton did not sell the horse to Dave Hudson, then “it would penalize Dave Hudson with a horse that he could not race.”
Interview of Daniel Creighton at ORC head office March 19, 2014, Final Report to Rob McKinney, June 6, 2014, Book of Documents, Ex. 1(c), Tab 29 at pp. 860 and 862
Testimony
“I called Larry Hughes” about the proposed sale of Royal Outlook and Fashion Fun.
Hughes said “that’s fine”. Hughes told Creighton that:
there “needs to be a bona fide transaction”;
there “needs to be a bona fide paper trail”; and
you “need to have documentation.”
Creighton “never did show it (the documentation) to Larry Hughes.”
Daniel Creighton, Examination-in-Chief, September 23, 2014
(v) Discussion
On September 25, 2013, the licensee held a 20% ownership interest in two race horses, Royal Outlook and Fashion Fun. The suspension of the licensee rendered both horses ineligible to race.
The licensee was determined to divest himself of his ownership interest to restore their eligibility.
He notified the Judges of his intention. He sought the advice of the Judges. The “private sales” were registered with Standardbred Canada. However, the licensee neither:
(i) advised the Judges of the completed sales, nor
(ii) provided the Judges with the “paper trail”
The $10,000 value of the share of the licensee was set off against the rather unusual amorphous debt “in the range of one quarter of a million dollars” said to have been outstanding to Hudson, the majority owner of the horses. .There are troubling aspects to this transaction.
- II. The Golden Rules (i)
(i) Larry Hughes (‘Hughes”)
Testimony
Young “probably wouldn’t be approved as the new trainer.”
She was “supposed to be at arm’s length.”
“We, (the judges), were trying to make a clean “cut” (from Creighton) to address the concerns of “the other participants” and the “betting public” that they knew the actual name of the trainer of record.”
Hamm was told to “keep contact with the judges.”
There was to be “no communication with Creighton.”
Larry Hughes, Examination–in-Chief, September 23, 014,
First Senior Judges Report
“We did a trainer transfer denial of race horses from Dan Creighton to Pam Young as per Rule 26.08 and Policy Directive No. 2 – 2008 #1.
Pam Young is or has been an employee of Mr. Creighton thus not being at arm’s length. SB 44584. … Mr. Hudson phoned me wanting Pam Young, he was told the same as Mr. Creighton. Mr. Hudson said he is appealing that decision.”
Senior Judges Report, Friday, September 27, 2013, Grand River, Book of Documents, Ex. 1(b), Tab 10, at p. 35
Second Senior Judges Report
“Had Tom Hamm in today for a trainer transfer on horses from Dan Creighton … to himself. We approved Mr. Hamm and he was told all the requirements he needed to have in place … we told him if he had any questions at all to give me or Mr. Brown a call.”
Senior Judges Report, Monday, October 7, 2013, Book of Documents, Ex. 1 (b), Tab 13
at p. 362
(ii) Thomas Hamm
Testimony
Hamm confirmed that Hughes imposed “three golden rules”:
“Owner trainer agreements were required”;
“No contact between Thomas Hamm and Daniel Creighton”
“No contact between Pamela Young and Daniel Creighton”;”….in relation to the said horses.”
Thomas Hamm, Examination-in-Chief, September 23, 2014
Interview
“Tom Hamm was supposed to tell Pam Young that she was to have no contact with Dan Creighton (as per Larry Hughes). Tom Hamm, did tell Pam as well.”
Interview of Thomas Hamm at Western Fair, March 6, 2014, Final Report to Rob McKinney, June 6, 2014, Book of Documents, Ex.1(c.), Tab 29, at p. 859
(iii) Discussion
Golden Rule (i)
- “Owner trainer agreements were required”
Owner trainer contracts were completed as follows:
10 Oct 13 Randy Clark
10 Oct 13 Dale Hunter
10 Oct 13 Dave Hudson
10 Oct 13 Rick Podolinsky
10 Oct 13 Richard Hunter
Book of Documents, Ex. 1(c), Tab 17, at pp. 502, 503, 508, 509 and 510, and
10 Oct 13 Dave Hudson
Book of Documents, Ex. 1(a), Tab 2, at p. 27
There was full compliance with Golden Rule (i) by Hamm.
Golden Rule (ii)
- “No contact between Thomas Hamm and Daniel Creighton”
There was substantial compliance with Golden Rule (ii) by Hamm and Creighton.
Golden Rule (iii)
- “No contact between Pamela Young and Daniel Creighton in relation to the said horses”
At best, there was limited compliance with Golden Rule (iii) by Young and Creighton.
- III. The Arrangement
(i) Pamela Young
Testimony
Young said that:
The owner of Danterra was going to try and get me as trainer”
“I was hoping I could become trainer.”
She “upgraded her licence to trainer in anticipation of approval of the trainer transfer”
“The judges decided I was too close to Dan.”
She continued to “work (with the six horses) at John Allen’s Gracewood Acres, one road over” from Creighton.
Interview
“Pam Young did everything when she worked for Tom Hamm, she took control.”
Interview of Pam Young at Western Fair, April 13. 2014, Final Report to Rob McKinney, June 6, 2014, Ex. 1(c), Tab 29, at p. 863
(ii) Thomas Hamm
First Interview
“Hamm trained no horses in 2011 and 2012.
Hamm advised Larry Hughes that he had worked for Dan Creighton on and off for over ten years.
Hamm discussed it with Larry Hughes about using Pam Young.
“Hamm was also supposed to tell Pam Young that she was to have no contact with Dan Creighton (as per Larry Hughes).”
Hamm was to use the truck and trailer that he now knows is owned by Dan Creighton
When Tom Litt returned (from the USA), Tom Hamm spoke with Dave Hudson and they decided that with four horses there was overkill with the staff and Tom Hamm would not need to be present as much at the barn.
Hamm is still at the barn everyday but not very long.
Hamm went to the track for the qualifiers twice and the races once during the first month and then has not been to the track since.
Hamm “realizes that it was not within the good faith agreement with Larry Hughes.”
Interview of Thomas Hamm at Western Fair, February 4, 2014, Final Report to Rob McKinney, June 6, 2014, Ex. 1(c), Tab 29, at pp. 858-859
Second Interview
- “He was never paid anything to be the trainer, there is approximately $20,000 owed to him when everything clears up.”
Interview of Thomas Hamm at Western Fair, March 6, 2014, Final Report to Rob McKinney, June 6, 2014, Ex. 1(c), Tab 29, at p. 859
(iii) David Hudson
Testimony
- The truck was owned by Danterra and registered to Creighton.
(iv) Daniel Creighton
Interview
- “Tom is in the business and is a decent guy. I don’t know what Dave Hudson (David Hudson, owner of Danterra Farms Ltd.) was thinking; he just needed someone to perform the function.”
Prepared Statement
- “I think it is important for you to understand her participation. Pam is an extremely organized and efficient employee. She has always taken control of many duties around the barn.
In many regards she is better than most trainers at the administrative function of running a stable.
Pam also possesses the ability to race a horse from start to finish. She can do the trucking, paddock the horse, warm it up, communicate information about the horse to the driver and deal with any issues that may arise at the racetrack.
She has always done this while working at Danterra Farms Ltd. and I would assume she took on the same responsibilities when she worked with Hamm. Wherever she goes she takes control.”
Prepared Statement of Daniel Creighton, March 19, 2014, Book of Documents, Ex. 1 (c), Tab 24, at p. 759
(v) Lynne Creighton
Testimony
“She’s kind of helpless.” (re Young and home maintenance)
Lynne Creighton, Examination-in-Chief, September 23, 2014
(vi) The Positions of the Parties
Administration
“The upshot is that almost nothing changed as a result of the transfer of the horses from Creighton to Hamm’s stable.”
The tradespeople, including the veterinarians, blacksmith and feed-supplier remained unchanged. The horses raced with the same equipment and were trucked in the same trailer and truck.
… the horses continued to perform more or less as they had previously, unsurprisingly given that the only real change to their care was a slight change in scenery.”
Closing Submissions of the Administration, September 26, 2014, at p. 4, para 11
Licensee
“… Danterra owns the truck that transported the horses; the truck was used with the permission of Mr. Hudson.”
The use of Danterra equipment be it a truck or racing equipment shows no involvement of the licensee. The licensee is not a shareholder of the corporation which owns the equipment and was not the person making the decisions with respect to the use of Danterra equipment.”
Closing Submissions of the Licensee, September 29, 2014, at p. 6, para 41 and at p.7, para. 48
(vii) Discussion
“Almost nothing changed.”
There was no change in the following:
the equipment used in the training, transportation and racing of the horses;
the vendors;
the tradespeople, including the veterinarians, blacksmith and feed supplier;
the employees (Young and Litt).
The changes which did occur included changes of the stable and the trainer of record.
The panel was not persuaded that the appointment of Hamm was a mere “artifice”. However, Young soon took control of the majority of tasks traditionally borne by the trainer of record. Within five weeks of the transfer, Hamm’s responsibilities were dramatically reduced by his employer, “with four horses there was overkill with staff.” Young would appear to have become the de facto trainer for the remaining four horses.
It is against this backdrop that “the connections between Creighton and the ongoing horse racing operation of the Danterra horses (albeit at Hamm’s stable)” must be assessed.
- IV. The Banking
(i) Bank Records
Final Report
The bank records provided by Dave Hudson and … Dan CREIGHTON reveal that the 6 Danterra bank accounts which were provided to ORC Investigator Troy Moffatt were addressed to the care of Dan CREIGHTON at 8806 Walkers Dr. Strathroy for the entire time that Dan CREIGHTON was suspended. …
There are examples of cheques from Danterra accounts that were signed by Dan CREIGHTON while he was suspended.
Dan Creighton had numerous calls to Lynne Creighton on dates that cheques were issued and deposited to Litt, Hamm, Hudson, Creighton …
This frequency of phone calls to the book-keeper shows that Dan CREIGHTON appears to have the authority to make business decisions relating to the bank accounts.”
Final Report to Rob McKinney, June 6, 2014, Book of Documents, Ex. 1(c), Tab 29, at p. 869
(ii) Daniel Creighton
Statement
“Dan’s wife Lynne is the bookkeeper for Danterra and has been for 15 years.
He does almost nothing with the bank accounts.
It made sense for the banking records to come to Dan Creighton’s name.”
Interview of Daniel Creighton at ORC head office March 19, 2014, Final Report to Rob McKinney, June 6, 2014, Book of Documents, Ex. 1(c), Tab 29, p. 860 and at p. 861
Testimony
“There were six bank accounts before (suspension) and after (suspension).
I always had signing authority (before and after suspension).
Q. Any input into finances?
A. My wife does virtually everything, ninety-nine per cent.”
- “In the fifteen years I have not signed the back of a cheque.”
Daniel Creighton, Evidence, September 23, 2013
(iii) Lynne Creighton
Testimony
Lynne Creighton said:
“Dan has very little to do with the bookkeeping.
Dan never calls about cheques.
I’m the only one who knows the passwords (for the on-line banking).”
Lynne Creighton, Examination-in-Chief, September 23, 2014
(iv) The Positions of the Parties
Administration
“The simple reality here is that when Creighton transferred the horses to Hamm, NOTHING CHANGED.”
Closing Submissions of the Administration, September 26, 2013, at p. 8, para. 23
“… the banking arrangements remained more or less the same. Bank statements for Danterra Farms continued to be labelled “c/o Dan Creighton” and Creighton maintained and continued to use his signing authority on the Danterra accounts.
… all of the financial transactions between Danterra Farms and Hamm’s stable account went through Creighton’s wife and his long-time friend and former groom with little or no involvement by the ostensible trainer Hamm.”
Closing Submissions of the Administration, September 26, 2013, at p. 8, para. 23 at p. 4, para. 12 and at p. 4, para. 12
Licensee
“The bank statements, upon which so much emphasis was laid because they were addressed in the care of Dan, were never even mailed to the house.
They were available on-line and only Lynne had he password to see them on-line.”
Closing Submissions of the Licensee, September 29, 2014, at p.3, para. 10
(v) Discussion
“Nothing Changed.”
Nothing did change in the financial arrangements before suspension v. after suspension.
It would appear that Lynne Creighton performed “ninety-nine per cent” of the tasks, both before and after the suspension of her husband.
“Dan Creighton appears to have had the authority to make business decisions relating to the bank accounts” as claimed by the Administration. However, there is insufficient evidence to make this finding based upon “the frequency of phone calls to the bookkeeper” alone.
The continuation of:
(a) the labelling of the Bank Statements for Danterra Farms “c/o Dan Creighton”
and
(b) the maintenance of Creighton’s signing authority on all six accounts was fraught with danger for a licensee who was under disqualification from any participation, directly or indirectly, in racing.
- V. The Driver
(i) Racelines
Henry was the driver of five of the six horses in 2013.
Standardbred Canada Records, Book of Documents, Ex. 1(c.), Tab 27, at pp. 776-800
(ii) Events
September 25, 2013
The start of Creighton’s suspension
September 27
The denial of the trainer transfer from Creighton to Young
October 7
The approval of the trainer transfer from Creighton to Hamm of six horses
October 9
Two of the horses, Eloise Eden and Strike It Big qualify at Western Fair with Henry as their driver
October 12
Telephone calls to Henry
Seven calls were made to Henry
Four of those calls were on Creighton’s cellular telephone
Three calls were on Young’s cellular telephone
(iii) Analysis
These seven telephone calls were made over a period of thirty-two minutes from the Creighton residence.
Analysis of Phone Records, Report to Rob McKinney, June 2, 2014, Book of Documents,
Tab 28, B, at p. 826
(iv) Testimony
Young said that:
she was a guest at the Creighton residence;
she was in possession of a” bottle of vodka”;
Henry was “the person who drives for me”;
she used Creighton’s telephone “because Trevor Henry wouldn’t answer my phone”
she made “the call” at 7:35 p.m. to Henry using the borrowed telephone.
Pamela Young, Examination-in-Chief, September 23, 2014
(v) Discussion
These calls were made:
On a Saturday evening
from a social setting;
to “her driver”, the driver who had qualified two of the six racehorses three days before;
the two horses transferred from Creighton only five days before;
from the home of her host;
her former supervisor;
the past trainer of both racehorses; and
the recently suspended licensee, then on day eighteen of his six month disqualification;
in his presence;
for a purpose not revealed.
Young was “hoping that I could become trainer … I wasn’t approved.”
The reason for the refusal was that the judges did not believe that Young was at “arm’s length from Creighton.”
Their belief, as claimed by the Administration was indeed “prescient.”
The panel found that Young was not at arm’s length from Creighton.
The panel did not accept the position advanced by Young that she never talked to Creighton about the horses.
The panel found that the only reasonable inference to be drawn from the evidence of the calls on October 12 was that Creighton continued his participation in racing in breach of his suspension.
- VI. The Calls
(i) Time Frame
September 25, 2013 to February 14, 2014
Pamela Young called Daniel Creighton 84 times. Daniel Creighton called Pamela Young 35 times.
Report to Rob McKinney, June 2, 2014 Re: Phone record and analysis of Pam Young (SC # M64578) and Dan Creighton (SC# C20176), Book of Documents, Ex. 1 (c.), Tab 28, A, at pp. 814-821
(ii) Pamela Young
Testimony
She never spoke about horses when Dan was suspended.
She “knew telephone calls would be an issue.”
She “prepared a list about a month ago” of the matters that “she and Dan spoke about.” The list included: “gas fireplaces, home repairs and a problem cat”.
Pamela Young, Examination-in-Chief, September 23, 2014
(iii) The Positions of the Parties
Administration
“… she was in near-constant telephone and social contact with Creighton throughout” …
“Explanations of varying persuasiveness were offered by witnesses connected to Creighton in an attempt to minimize his involvement.’
“It was only after repeated vociferous denials by Young and Creighton of ever having discussed the transferred horses at all that Creighton admitted to having discussed the general performance of the horses at races.”
Closing Submissions of the Administration, September 26, 2014, at p. 2, para. 4 and
at p. 5, para. 13
Licensee
“It is not reasonable to conclude that Ms. Young was in touch with Dan to discuss the care or training of the horses.”
“Dan testified that he had no conversations about the training of the horses. When questioned by the panel, he admitted that he and Pam spoke about how the horses did on occasion but not about the horses’ training.”
Closing Submissions of the Licensee, September 29, 2014, at p. 2, para. 7 and at
p. 3, para. 13
(iv) Precedent
“The credibility part fell off when he said he never discussed the driving of the particular horses and that’s very difficult to believe that a trainer, or even a suspended trainer, is not going to talk about horses when they call each other.”
Gabriella Sasso and Ronald Adams v. ORC Revised Ruling Number COM SB 025/2014, October 1, 2014, at p. 3, ll. 6-9
(v) Discussion
The examination of the records focused on the calls between Young and Creighton.
The panel considered the following factors:
the total number of calls
the time of day when they were made
their duration
their sequence
the clustering of calls, and
the juxtaposition of the calls, both to and from the suspended trainer, with significant events in racing
These events included:
calls to tracks to enter horses to race
calls to owners
calls to grooms
calls to trainers
calls to drivers, and
calls on race dates when racehorses previously trained by Creighton were scheduled to race
The explanations presented for the calls are not reasonable. The explanations are not accepted. These calls constitute evidence from which it can be reasonably inferred that Creighton did participate, directly or in directly, in racing.
- VII. The Trip
Dates
October 19 to October 28, 2013
(i) Horse
Eloise Eden
(ii) Events
April 26, 2010
Birth of standardbred racehorse, Eloise Eden in the state of Virginia
April 14, 2012
Mark A. Bowser of Virginia became the owner
September 24, 2013
Creighton was the trainer of record
September 25, 2013
The licence suspension started
October 7
Trainer transfer of horse from Creighton to Hamm
Hamm became the trainer of record
October 19
Litt drove with horse to racetrack in Virginia
October 20
The horse raced at Colonial Downs, Virginia
Litt was listed as trainer
October 27
The horse raced at Colonial Downs
Litt was listed as trainer
October 28
Litt returned the horse to Canada
November 11
The horse raced at Western Fair
Hamm was listed as trainer
(iii) Daniel Creighton
Statement
“He knows of the lease deal with Tom Hamm and Mark Bowser. Dan dealt with Mark Bowser and Tom Hamm. Dan has other horses with Mark Bowser.
Tom Litt went with the horse Eloise Eden to Virginia.
Tom Litt came and used Dan Creighton’s phone to call Colonial.
He never called Colonial Downs when the horse was in Virginia. Tom Litt may have used Dan Creighton’s phone a couple of times.
Dan Creighton may have called Colonial to see if the horse was in.”
Statement of Daniel Creighton at ORC head office, March 19, 2014, Final Report to Rob McKinney, June 6, 2014, Book of Documents, Ex. 1 (c), Tab 29, at p. 861
(iv) Thomas Hamm
Interview
“Hamm leased the horse Eloise Eden from Mark Bowser.
When asked, Hamm stated that the lease was actually through Danny (Creighton).
The lease was never registered with Standardbred Canada.”
Interview of Thomas Hamm at Western Fair, March 6, 2014, Final Report to Rob McKinney, June 6, 2014, Book of Documents, Ex. 1 (c), Tab 29, at p. 859
(v) Thomas Litt
Testimony
Litt said that:
he and Creighton were “very close”;
Creighton is “like my second father”;
“I called from his phone to enter the horse to save money”;
He had truck problems one day on the trip to Virginia;
He had “girl problems”.
Thomas Litt, Examination-in-Chief, September 23, 2014
(vi) Discussion
Creighton’s cellular telephone
There were fourteen cellular telephone calls between Creighton and Litt.
There were five calls between Creighton and Colonial Downs.
There were three calls between Creighton and the driver in Virginia.
There were two calls between Creighton and the owner in Virginia.
Litt’s cellular telephone
There were fourteen cellular telephone calls between Litt and Creighton.
There was one cellular telephone call between Litt and Young.
There were no calls between Litt and Colonial Downs.
There were no calls between Litt and the driver in Virginia.
There were no calls between Litt and the owner in Virginia
There were no calls between Litt and the trainer in Canada.
Report to Rob McKinney, June 9, 2014, Re: Analysis of telephone records of
Dan Creighton (SC# C20176), as well as Tom Litt (SC # 269247) and Tom Hamm (SC # K37461) and Pam Young (SC # M64578), Book of Documents Ex. 1 (c), Tab 28, B at pp. 825 9- 827
Between the start of Creighton’s suspension, September 25, 2013 and February 15, 2014, (the last date of the cellular telephone records), a period of four and one half months, Litt did not enter a horse to race in Canada. Litt said that he, then an eighteen-year-old groom, entered the horse to race in Virginia. Litt said that he “borrowed” Creighton’s cellular telephone to call Colonial Downs. This was the cellular telephone of the suspended trainer who was less than three weeks into his six month suspension. Calls were made on the Creighton telephone on three consecutive days, October 15, 16 and 17, before the departure of Litt for Virginia, on two days after Litt’s arrival in Virginia on October 23 and 25.
The panel accepts the evidence of Litt that they were “very close”.
The panel does not accept the evidence of Litt that he “borrowed” Creighton’s telephone to enter the horse in Virginia, or, that the other calls (with the exception of a call because the truck would not start), were about “girl problems”.
The telephone calls from Creighton’s cellular telephone to the USA are evidence from which a reasonable inference may be drawn that Creighton continued his participation directly or indirectly, in racing while under suspension.
- VIII. THE SPOT CHECK
(i) Events
Hughes explained to Creighton that he was to have no involvement in the training, movement or sale of racehorses.
Creighton was required to transfer the horses he was training to another trainer, subject to the approval of the judges.
Creighton took possession of two of the horses, Rocks R Us and Strike It Big after it was decided that these horses would no longer be racing.
Closing Submissions of the Administration, September 24, 2014, at p. 2, para. 5 and at p. 6, para. 18
The return was without the knowledge or consent of the judges.
The return was discovered during a trainer transfer inspection spot check at Gracewood Acres on November 12, 2013.
Hamm was not present.
Young was at the farm with four horses.
Two of the original six were missing from the stable of Hamm.
(ii) Sanction
On November 21, the two horses were suspended by the judges. “One horse is turned out and the other is having surgery.”
Senior Judges Report, November 21, 2013, Book of Documents, Ex. 1(c), Tab 20, at p. 595
(iii) Discussion
The return of the two horses to the stable of Creighton, less than five weeks after the transfer, is further evidence from which a reasonable inference may be drawn that Creighton, while under suspension, continued his participation, directly or indirectly, in racing.
- IX. The Sighting
(i) Troy Moffatt
Notes
On Sunday, December 1st at 12:19 p.m., Moffatt saw a silver/gold GMC truck parked at Creighton’s house.
At 1:37 p.m., Moffatt saw this truck, which was registered to Creighton, leave the “Gracewood Farm”.
“One male with hat and moustache and dog in vehicle.”
Handwritten notes, Supplementary Book of Documents, Ex. 1(d), Tab 10, at p. 32
Testimony
“… As the vehicle pulled out he turned to pull in front of me.”
“The truck was registered to Dan Creighton at 8806 Walkers Drive in Strathroy.”
“… It was snowing so that plate was partially snow covered …”
Troy Moffatt, Transcript Examination-in-Chief, September 23, 2014, at p. 6, ll. 1-2 and at p. 10, ll. 10-14 and ll. 16-17
(ii) Daniel Creighton
Statement
“He (Creighton) has never been over to John Allen’s farm since his suspension.”
Statement from March 19, 2014 Interview, Book of Documents, Ex. 1(c), Tab 29, at p. 860
Testimony
“I was not over there (Gracewood). Tom Litt drove that truck. I usually drive the blue pickup.”
Daniel Creighton, Testimony, Examination-in-Chief, September 23, 2014
(iii) Thomas Hamm
Statement
“When asked: Tom Hamm stated that Dan Creighton physically, he has never seen him at Allen’s.”
Thomas Hamm, Statement from February 4, 2014, Book of Documents, Ex. 1(c), Tab 29, at p. 859
(iv) John Allen
Testimony
“If I’d seen Dan, I’d have kicked his butt home. I swear I never saw him.” (at Gracewood Acres during the suspension)
John Allen, Examination-in-Chief, September 23, 2014
(v) Thomas Litt
Testimony
“I don’t work Sundays.”
Thomas Litt, Examination-in-Chief, September 23, 2014
(vi) Discussion
The identification evidence presented challenges.
The truck, although registered to Creighton, had at least one other driver.
There was no evidence as to the entry of the driver into the truck at the Creighton property.
There was no evidence as to the activity of the driver or the duration of the stay at Gracewood Acres.
There was no evidence as to the exit of the driver from the truck upon return to the Creighton property.
It was snowing.
The rear window of the truck was tinted.
The driver wore a hat.
The driver remained seated.
The evidence did not fully address the circumstances as to how long Moffatt watched the driver, the distances between them, Moffatt’s perspective as to frontal, side or rear view, the visibility, other than “it was snowing” and whether anything else may have hindered or prevented a clear view.
Creighton may indeed have “popped in” to “check on the horses in Young‘s care” as alleged by the Administration.
The panel found the following:
(i) that Moffatt believed that Creighton was the driver of the truck.
(ii) the Administration did not meet the necessary burden of proof on the sighting.
- X. The Public Sale
(i) Final Report
“The horses Royal Outlook and Rocks R Us were entered into a sale
Dan CREIGHTON had several telephone calls with Preferred Equine on December 22, 2013 and 23, 2013 and January 7 and 13, 2014. Preferred Equine was the sale company that organized the sale that “Royal Outlook” and “Rocks R Us” were entered into.
Dan CREIGHTON had 2 phone calls for a total of 54 minutes with Dave Hudson on January 6, 2014. Dan CREIGHTON was the conduit between Preferred Equine and Dave Hudson.
Dan CREIGHTON called Standardbred Canada twice on January 7, 2014 the same day that Standardbred Canada dated and sent the hard copy registrations for the horses “Royal Outlook” and “Rocks R Us” to Dan CREIGHTON. CREIGHTON was the conduit between Standardbred Canada and Dave Hudson.
Dan CREIGHTON attended the sale and bought back the horse “Royal Outlook”.
CREIGHTON stated during the interview that he was asked to do so by Dave Hudson
CREIGHTON stated that he signed Dave Hudson’s name on the paperwork.
On January 22, 2014 Troy Moffatt obtained the printout for the horse Royal Outlook. The horse Royal Outlook was entered to race at Western Fair on January 27, 2014 with Hamm as the trainer. This shows that Dan Creighton had a degree of control over the horse and the decision as to what to do with the horse.
Dan Creighton advised Pam Young to contact Pocket Trip transportation to transport the horse to the sale.
Dan Creighton’s phone records reveal that he spoke with Dave Hudson and then called Pam Young. …
Only Dan Creighton had any communication with the sale company.”
Final Report to Rob McKinney, June 6, 2014, Book of Documents, Ex. 1(c),
Tab 29, at pp. 868-869
(ii) Troy Moffatt
Testimony
- …
“In checking the horses that were listed for sale at the Tattersall Sale I recognized the horse’s name ROYAL OUTLOOK. With that I checked on Standardbred Canada, the database and with Standardbred Canada they are a recordkeeping body but once I checked the Standardbred Canada the notation that came up is that the hard copy registrations were requested to be mailed back to Dan Creighton.
- Q. Did you take any steps to follow up on why they would be mailed to Dan Creighton?
A. I did. I contacted Mary at Standardbred Canada …
- Q. What did you understand to be the case from speaking to Mary?
A. Well, looking at my notes from Tuesday, January 21st, I, after checking the registration had in fact been mailed to Dan Creighton on January 7th, 2014, contacted Mary the same day and she said she received a phone call from, as she understood, the owner of the horse that said mail them to Dan Creighton as he is my trainer and he is taking the horses to the Meadowland sale. That’s all she knew and that’s what she did.”
Q. “…What was wrong with participating in a sale of horses in New Jersey?
…
A. The sale by itself, had the sale occurred and had the horses been sold and not returned to Ontario probably nothing.
- Q. So what is it about returning to Ontario that causes you to raise this as evidence in a hidden trainer case?
A. Well, the horse ROYAL OUTLOOK returned to Ontario with trainer Tom Hamm. Mr. Creighton is suspended. The paperwork for the horses went to Mr. Creighton. The phone calls were made by Mr. Creighton. It certainly appears that those horses now are racing back in Ontario. The one horse ROYAL OUTLOOK was controlled in whole or in part by a suspended person.
- Q. How is that?
A. Well, he was in control of the paperwork that would take the horse to the sale. Standardbred Canada was directed to send him the paperwork.
- Q. The control of the paperwork?
A. That is part of the reason, yes.
- Q. Means he controls the horse?
A. In this case the horse would not have been entered into the sale had the paperwork not arrived.”
Troy Moffatt, Transcript, September 23, 2014, Examination–In-Chief at pp. 12-14, Q’s and A’s 32-34, Cross-Examination at pp. 17-19. Q’s and A’s 35, 36, 37, 38, 39 and 40
(iii) Daniel Creighton
Interview
Dave Hudson asked Dan Creighton to find some details of the Meadowlands sale.
He received a text from Dave Hudson while at the sale to protect the horse Royal Outlook to $65,000 and buy it back.
He bought back the horse and signed Dave Hudson name on the paperwork.
He believes the racing of standardbred horses is different than the selling of standardbred horses.
Dan’s involvement at the Meadowlands sale was minimal.
The sale company called Dan relating to the sale as they know Dan is related to Dave Hudson.
He went through his phone records and saw that he had called Standardbred Canada to get the registration for the horses. That was basically his input.
Dave Hudson entered the sale and made the decisions. He has the tags and contracts.
Interview of Daniel Creighton, March 19, 2014 at ORC head office, Final Report to
Rob McKinney, June 6, 2014, Ex. 1(c) Tab 29, at p. 860
Testimony
Creighton acted upon the request of David Hudson
“The USTA does not have electronic eligibility.” Creighton “needed the hard copy registration.”
Creighton stated:
“I called Standardbred Canada. I spoke to Mary.”
Creighton further stated his conclusion, following a conversation with Michael Brown, Senior Standardbred Judge for the ORC, that:
“The ORC doesn’t view public auctions as much of an issue.”
“I didn’t notify Mike Brown.” (about the buy back)
(iv) Discussion
Creighton made arrangements with “Preferred Equine” to enter both Royal Outlook and Rocks R. Us into the Meadowlands Tattersall’s Mixed Auction Sale.
Creighton instructed Young to contact Pocket Trip transportation to deliver the horses to New Jersey.
Creighton was also in personal attendance at the January 20, 2014 sale.
Creighton bought back Royal Outlook on the instructions of David Hudson.
On January 24, 2014, the Judges at Western Fair were told of the buy back. They scratched Royal Outlook and Fashion Fun when they arrived at the racetrack with Young and Litt in Creighton’s truck and Terry Hudson’s trailer.
Creighton played an integral role in the preparation for sale of the horses and the buy back and the return of Royal Outlook to Canada. The role of Creighton is further evidence from which a reasonable inference may be drawn that he continued his participation, directly or indirectly, in racing, while under suspension.
- THE DECISION
(i) Belief
The “belief” expressed by Creighton was that “the interpretation of ‘Racing’ could be confusing but it is important.
He was involved in ‘the administration of paperwork’ but it is not ‘racing’.
He would consider it a violation if he was in the grandstand warming up horses and then calling down to staff to say ‘change the hopples’ or ‘take them up two inches’. That would be a violation.”
Daniel Creighton, Statement at ORC head office, March 19, 2014, Book of Documents, Ex. (c), Tab 29, at p. 860
This belief cannot prevail.
(ii) Rule 6.10.01 Restriction of the application of Rule 6.10.01 to the belief expressed by Creighton would render the words “any” and “indirectly” meaningless.
(iii) Submissions
The panel found the following submissions compelling:
“… the reality is that he (Hamm) backed off the training of the horses in short order, leaving the duties to Young along with Litt, - each of whom continued their ongoing and frequent contacts with Creighton.”
and
“… There are so many connections, and such a degree of contact, between Creighton and those charged with responsibility for his former stable of race-horses, that the evidence is simply not consistent with a trainer who has fully and properly absented himself from racing. Explanations of varying persuasiveness were offered by witnesses connected to Creighton in an attempt to minimize his involvement. These witnesses have a common financial and personal interest in the protection of Creighton. Their testimony, while coloured to discourage the panel from concluding that Creighton was acting as de facto trainer, cannot displace the most obvious inference to be drawn from the evidence - that Mr. Creighton was actively involved in horse racing and exerting indirect influence over race-horses throughout his suspension.”
Closing Submissions of the Administration, September 26, 2014, at p. 3, para. 10 and at
p. 2, para. 4
(iv) Findings
The panel considered the cumulative effect of all the evidence.
The Administration met the standard of proof, on a balance of probabilities, by evidence that was clear, cogent and compelling, that Daniel Louis Creighton, between September 25, 2013 and March 24, 2014, while under suspension and disqualification from so doing, did participate “either directly or indirectly in racing” in violation of Rule 6.10.01 of the Rules of Standardbred Racing.
- THE PENALTY
- What is the appropriate penalty?
Overview
- The Proposed Order of the Director sought three sanctions:
(i) an Order of Immediate Suspension;
(ii) a Suspension of licence as driver/trainer/owner for two years; and
(iii) a Fine of twenty-five thousand dollars.
- Neither the Racing Commission Act
nor
the Rules of Standardbred Racing contain penalty guidelines or mandatory sanctions for violation of Rule 6.10.01.
Aggravating Factors
The original suspension was ordered for a positive test for Class I drugs.
The suspension was imposed following a joint submission by counsel for Creighton and the Administration.
Creighton breached Rule 6.10.01 in many ways.
Some of the breaches were substantial.
Some of the breaches were repeated.
Some of the beaches occurred over many weeks.
Mitigating Factors
There were other consequences for Creighton.
The suspension for the positive test expired on March 24, 2014, when the Deputy Director ordered a further suspension pending the outcome of the ORC investigation into this matter.
The Order of Immediate Suspension was issued on June 27, 2014.
The request by Creighton for a stay of this suspension was denied on July 29, 2014.
His licence remained under suspension.
Some of the breaches were committed in an attempt to assist his employer.
Suspension
The suspension is a full suspension;
The suspension is for nine month and five days;
The suspension includes the time already served under suspension since the investigative suspension order;
The suspension will end on December 29, 2014;
The licensee is eligible to apply for reinstatement on or after December 30, 2014.
The Fine
- The fine is $5,000 (CAN).
DATED this 1st day of December 2014.
Elmer Buchanan Anthony Williams John W. Macdonald
Chair Vice Chair Commissioner