IN THE MATTER OF THE RACING COMMISSION ACT 2000, S.O. 2000, c.20;
AND IN THE MATTER OF THOROUGHBRED HORSE BUBBI TRAP
RULING
Thoroughbred trainer Jim Day appealed a decision of the Stewards at Fort Erie Racetrack dated July 17, 2002 (TB Ruling 2002-114) wherein they determined that the horse BUBBI TRAP failed to carry the correct weight and was declared unplaced for all purposes with the exception of pari-mutuel wagering.
On September 4, 2002, ORC Chair Stanley Sadinsky, Q.C. convened to consider the appeal, along with Commissioners Ernest Nock and Thomas Deacon.
Counsel Peter Howard appeared for Jim Day and Counsel Joanne Mitchell appeared for the ORC Administration.
On hearing the evidence of ORC Steward Jim Nemett, on reading the exhibits filed, and on hearing the submissions on behalf of the parties, the panel dismissed the appeal. As such, the order of finish determined by the Stewards in TB Ruling 2002-114 stands.
The Reasons for Decision are appended to this Ruling.
DATED this 17^th^ day of September, 2002.
BY ORDER OF THE COMMISSION (original signed by) Jean Major
Jean Major
Executive Director
IN THE MATTER OF THE RACING COMMISSION ACT 2000, S.O. 2000, c.20;
AND IN THE MATTER OF THOROUGHBRED HORSE BUBBI TRAP
REASONS FOR DECISION
Trainer Jim Day (Day) has appealed from the decision of the Stewards at Fort Erie Racetrack dated July 17, 2002 (TB 2002-114) wherein they determined that the horse BUBBI TRAP failed to carry the correct weight and was declared unplaced for all purposes with the exception of pari-mutuel wagering. At the hearing before us, which was a hearing de novo, Peter Howard appeared for Day and Joanne Mitchell appeared for the Administration of the Ontario Racing Commission (“Commission”). Part way through the hearing, thoroughbred trainer William Brennan (Brennan) who had received notice of this hearing identified himself as someone who wished to make submissions in person.
Day and the ORC submitted an Agreed Statement of Facts, which was part of Exhibit 2. That Statement read as follows:
Owner/trainer Jim Day (“Day”) phoned in the entry to Fort Erie for the horse BUBBI TRAP (the “Horse”) on Saturday, July 13, 2002, for the Rainbow Connection Stakes (An Ontario Sires Stakes (the “Race”) to be run at Fort Erie on Tuesday, July 16, 2002.
The conditions of the Race for Fillies and Mares 3 years and up included “3-y-o, 118 lbs; Older, 122 lbs; Winners of a swpstk of $60,000 3 times in 2001-2002, additional 4 lbs; Winners of a swpstk of $60,000 twice in 2001-2002 additional 2 lbs; Non-winners of $60,000 in 2001 allowed 4 lbs; Of a race other than maiden or claiming, allowed 6 lbs; [No Canadian Bred allowance]…” A copy of the condition sheet for the Race is attached as Schedule “A”.
The Horse was a 4 year old with two lifetime wins. The Horse was entitled to an allowance of 4 lbs, which is what Day correctly claimed. The entry form to this effect recorded by the Racing Office is attached as Schedule “B”.
As is common practice for trainers, Day indicated that he believed 4 lbs was correct but asked the office to check. The tape of the phone entry clearly records Day claiming the 4 lbs but questioning it and leaving it to the Clerk to check the final weight.
The Horse appeared in the Fort Erie overnites and in the Racing Form at 118 lbs. Copies of the overnites and Racing Form are included as Schedules “C” and “D” respectively.
There were two programs the day of the Race. One proof (#3) shows the Horse at 116 lbs while another proof (#6) shows the Horse at 118. Copies of the two proofs are attached hereto as Schedules “E” and “F” respectively.
The Gaming Eligibility Clerk initially proofed the Tuesday card on Sunday, July 14, 2002, and determined that the Horse was eligible for a 6 lb allowance. On Tuesday, the same Clerk again proofed the weights for the card and in error was sure that the Horse was eligible for a 6 lb allowance and left the allowance at that. The Clerk used the past performance proofs for the Horse to determine the final weight. The final program has the Horse at 116 lbs.
The Race was the 8^th^ race at Fort Erie on July 16, 2002. The Horse finished first, ridden by jockey David Clark (“Clark”). Although the actual weight is not recorded, after the Race, Clark weighed in at least 116 lbs. A copy of the Clerk’s weigh-in record is attached as Schedule “G”.
The trainer of the 3^rd^ place finisher filed a protest on July 17, 2002. On July 17, 2002, the Fort Erie Stewards ruled, citing Rules 8.02, 13.02, 13.04.1(a), 13.08 and 13.14 that the Horse had “failed to carry the correct weight” and declared the Horse unplaced except for wagering purposes. A copy of the Stewards’ ruling is attached as Schedule “H”.
This hearing proceeded by way of a hearing de novo. In addition to the agreed facts, the ORC called Steward Jim Nemett (Nemett) as a witness.
Exhibit 2, Schedule G, is the Clerk of the Scales’ weigh-in record. This sheet includes a copy of the program page for the race in question and indicates that the weight for BUBBI TRAP was 116 lbs. When the jockeys weigh out (prior to the race), the Clerk compares the weight of the jockey with the programmed weight. If there is an overweight, it is noted on the sheet and this information is broadcast to the public. If there is an underweight, lead is added to make up the required programmed weight. In this case, according to the evidence of Nemett, there was no announced overweight.
The weigh-in record also appears to note both overweights and corrected weights. For example, in the case of the horse MATTER OF LAW, an overweight of 1 lb is noted. In the case of the horse SIMPLY PRECIOUS a corrected weight to 112 lbs and an overweight of 4 lbs are noted. There are no noted changes for BUBBI TRAP. Nemett also testified that should there be a variation in either over or under weight for a horse on both weigh-out and weigh-in, the Stewards are notified by the Clerk of the Scales. There was no such notification in this case.
Accordingly, we have concluded from the above that Clark weighed out at 116 lbs and weighted in at 116 lbs. This is consistent with the agreed facts that Clark weighted in at least 116 lbs.
Reference was made to Rule 8.05.1 which reads as follows:
8.05.1 Each jockey shall weigh in at the same weight as he/she weighed out, except that a tolerance not to exceed two pounds underweight is allowed. If short by more than two pounds his/her mount shall be disqualified.
In our view, this Rule has no application in this case. The Stewards were not notified of any underweight when Clark weighed in.
Mr. Howard argued that there is no evidence adduced by the ORC to support the finding that BUBBI TRAP should be disqualified for failing to carry 118 lbs which everyone admits was the correct prescribed weight under the conditions of this race. We disagree. In addition, by agreeing to facts that indicate that Clark weighed in at least 116 lbs, leads to a conclusion that he might have carried the required 118 lbs. Nor is that conclusion supportable by the evidence. On the contrary – Exhibit 2, Schedule G and the fact that the Stewards were not notified of any discrepancy in the weights, establish to our satisfaction that the horse carried 116 lbs.
Mr. Howard also argued that even if the horse carried 116 lbs that meets the condition requiring the horse to carry 118 lbs because, following Rule 8.05.1, it is within 2 lbs below the required weight. In our view, Rule 8.05.1 was not meant to permit a horse to simply race within 2 lbs below a condition weight. Rather, that Rule provides some tolerance in underweight due to deviations in the equipment carried by a jockey (such as saddle pads) at both weigh-in and weigh-out times. Also, a jockey might sweat during a race and for that reason, weigh less at weigh-in as opposed to weigh-out time.
The Stewards relied on Rule 8.02 and several parts of Rule 13 to support their finding. Rule 13 deals with how protests are to be made and does not bear on the central issue in this case. Rule 8.02 is as follows:
8.02 The owner, trainer or authorized agent shall claim all weight allowances at the time of entry and the claimant shall be held responsible should a horse be started carrying an incorrect weight. If as a result of carrying too little weight a horse is disqualified, the owner, trainer or authorized agent claiming such weight shall be held responsible.
In our view, this Rule does not apply in these circumstances. This Rule does not provide for the disqualification of a horse but only for the possible discipline of a person who declares an incorrect weight. No one is suggesting that Day declared an incorrect weight.
The rule that does deal with the disqualification of a horse for carrying an incorrect weight is rule 8.03 which reads as follows:
8.03 Subject to Rules 8.05 1 and 8.05.2, if a horse fails to carry at least his correct weight over the entire distance of the race, such horse shall be disqualified.
Rule 8.05.2 has no application in this case and we have already explained why Rule 8.05.1 is also inapplicable.
We have concluded that BUBBI TRAP failed to carry at least 118 lbs over the entire distance of the race in question and should be disqualified. On the evidence before us, we find that BUBBI TRAP carried 116 lbs. The parties to the Agreed Statement of Facts agree that if BUBBI TRAP did carry insufficient weight, this was due to an error made on the part of an employee at Fort Erie. If any party has any remedy against Fort Erie, that remedy must be pursued before some other body.
This appeal is dismissed and the order of finish determined by the Stewards in Ruling No. TB 2002-114 stands.
DATED this 17^th^ day of September, 2002.
(original signed) by Stanley Sadinsky
__________________
Stanley Sadinsky, Q.C.
Chair