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

AND IN THE MATTER OF THE

APPEAL OF THOROUGHBRED OWNER/TRAINER

FRANK HUARTE

Thoroughbred owner/trainer Frank Huarte appealed the decision of the Industry Board of Appeal, dated July 10, 2003, which dismissed his appeal of Stewards' Ruling TB 144/2003 wherein the horse SPANISH BRANDY was disqualified from 1st position and declared unplaced in the 4th race on May 23, 2003, at Woodbine Racetrack for causing interference with ROCKIN ON ICE and EROPA.

On December 3, 2003, Vice-Chair Larry Todd and Commissioners Pat Bullock and Bernard Brennan, DVM of the Ontario Racing Commission convened to hear the appeal.

Chris Huarte appeared on behalf of Mr. Huarte and Don Bourgeois appeared on behalf of the Administration.

Upon hearing the evidence of Richard Grubb, Todd Kabel and Steve Bahen, upon reading the exhibits and upon hearing the submissions of the parties, the Ontario Racing Commission dismissed the appeal and confirmed the disqualification of the horse SPANISH BRANDY. The Ontario Racing Commission, by a majority, denied the Administration's request for an additional penalty for frivolous appeal. The written reasons for decision of the Ontario Racing Commission are attached to and form part of this Ruling.

DATED this 10^th^ day of December, 2003.

BY ORDER OF THE COMMISSION

Jean Major

Executive Director

REASONS FOR DECISION

Thoroughbred owner/trainer, Frank Huarte, appeals the decision of the Thoroughbred Division of the Ontario Racing Industry Appeal Board dated July 10, 2003, wherein said Industry Review Board dismissed the appeal from the disqualification of Spanish Brandy from first place on that date.

The Notice of Hearing in this matter referred to a further appeal by thoroughbred jockey, Constant Montpellier, from the same decision of the Thoroughbred Division of the Ontario Racing Industry Appeal Board. However, thoroughbred jockey, Constant Montpellier, the rider of Spanish Brandy, has withdrawn his appeal and served the suspension imposed by the Thoroughbred Division of the Ontario Racing Industry Board of Appeal.

Don Bourgeois appeared as counsel for the Administration of the Ontario Racing Commission and Mr. Huarte’s son, Chris Huarte, appeared as agent and representative of the appellant.

Mr. Huarte at the opening of the hearing requested an order excluding witnesses and such was made on consent.

This panel heard the evidence of Steward Richard Grubb, licensee and rider Todd Kabel, licensee and rider Stephen Bahen on behalf of the Administration. The agent of the appellant cross-examined all of the above witnesses at some length. The appellant did not call any evidence in reply. We might well have been assisted in this matter had licensee/jockey, Constant Montpellier, been called in support of Mr. Huarte’s case.

The representative/agent for Mr. Huarte in his argument expressed a complaint and concern regarding the apparent non-availability of the taped telephone discussions between the stewards and the riders involved with the inquiry and the claim of foul by rider, Todd Kabel, immediately after the running of the fourth race on May 23, 2003, at Woodbine.

This complaint and concern is well founded, and we, as a hearing panel, have experienced this non-availability of the tapes of the telephone conversations on more than one occasion. We would hope that this situation does not repeat itself in the future. We have been advised by the stewards that there is a system in place for recording these telephone conversations immediately after the subject events with the riders and other interested parties. The inexplicable loss or misplacing of these recordings is not acceptable and could well in the future lead to adverse inferences to be considered with regard to the evidence of the stewards and/or the Administration’s case in general.

The evidence of Steward Grubb, rider Todd Kabel, and rider Stephen Bahen, was consistent and to the following effect:

(a) Spanish Brandy came out on the last turn of the running of this race and created a domino effect requiring Mr. Kabel, aboard Rockin On Ice, to move outward to avoid clipping heels with Spanish Brandy. Mr. Kabel’s horse when taking this evasive manoeuvre unfortunately moved into the path of Mr. Bahen’s horse, Eropa, causing Mr. Bahen’s mount to clip the heels of Mr. Kabel’s horse with the resultant fall and spill of Eropa and Mr. Bahen.

(b) There may not have been contact between Spanish Brandy and Mr. Kabel’s mount. The films made available to the panel would seem to confirm that there was at all material times some space between Spanish Brandy ridden by Mr. Montpellier and Mr. Kabel’s mount.

(c) Mr. Montpellier’s horse, however, was seeking on at least two occasions to extract itself from the hole behind the race leader and was significantly off the rail coming towards Mr. Kabel’s horse when he checked his horse and moved it to the right in the path of Mr. Bahen’s filly.

(d) Mr. Kabel had to check his horse and change course failing which he would have clipped the heels of Mr. Montpellier’s Spanish Brandy probably causing a fall or accident.

(e) Mr. Kabel claimed foul immediately after the race and the stewards likewise posted the inquiry sign immediately after Mr. Bahen’s fall.

(f) All riders giving evidence, as well as Steward Grubb, confirmed that Mr. Kabel was simply “trying to protect himself” and avoid an incident with the hips or the rear heels of Mr. Montpellier’s filly.

(g) Mr. Bahen in particular referenced that it “looked like the horse on the fence came out causing Mr. Kabel to come out into him” with the ensuing intermeshing of the heels of Mr. Bahen’s mount and Mr. Kabel’s mount.

The various films of the race confirm Mr. Bahen’s observations as above. In particular, we note one particular view where Mr. Montpellier’s horse, Spanish Brandy, is commencing to angle away from her rail position and place her hindquarters and hips very close to the lane or path of Mr. Kabel’s filly. The films of the race indicate that Spanish Brandy, albeit a first time starter, had been well prepared and trained by Mr. Huarte and was obviously the horse with the most run and speed at the point in time when the incidents above transpired.

While Spanish Brandy after the incident in issue took command of the race and drew off to a substantial victory in this matter, on the above evidence we must unanimously conclude that there was a violation of Rule 11.07 of the Rules of Thoroughbred Racing. We find as a fact that Mr. Montpellier and Spanish Brandy interfered with and/or impeded Mr. Kabel causing him to take split second evasive action resulting in the spill involving Mr. Kabel’s mount and Mr. Bahen’s filly.

For the above reasons, this appeal is dismissed and the decision of the Thoroughbred Division of the Ontario Racing Industry Board of Appeal dated July 10, 2003, is confirmed. Spanish Brandy’s disqualification by the stewards on May 23, 2003, is therefore affirmed.

The Administration in its Notice of Hearing and in argument seeks an order pursuant to s.11(8) of the Racing Commission Act 2000 that this appeal should be deemed frivolous and an appropriate penalty imposed on the appellant. Mr. Bourgeois indicated that while this was “not the most grievous appeal” that the administration was still seeking a $500.00 penalty against Mr. Huarte. Mr. Bourgeois invited us to conclude that the standards for deciding whether an appeal is frivolous should be objective ones and pointed out further that the appellant had not called Mr. Montpellier albeit a summons had been prepared for his attendance.

The majority of the panel, being Commissioner Bullock and Vice Chair Todd, is of the view that the frivolous appeal penalty provisions should not apply to this matter. The aforementioned two Commissioners note that Mr. Huarte lost a purse of approximately $40,000.00 as a consequence of Mr. Montpellier, in the words of Mr. Kabel, being “just a little too anxious to get out”. Commissioner Brennan, however, concurs with the submissions of Mr. Bourgeois and would have levied a $500.00 frivolous appeal order against Mr. Huarte given the overall nature and substance of the appeal and the fact that a full airing of the matter had already transpired at the Thoroughbred Division of the Ontario Racing Industry Board of Appeal.

In summation, the appeal is dismissed and the Administration’s claim for a finding of a frivolous appeal is similarly, by majority decision, dismissed.

Dated at Toronto, this 10th day of December, 2003.

Larry Todd

Vice Chair