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

AND IN THE MATTER OF THOROUGHBRED LICENSEES

EARLE MACK AND MARK CASSE

Thoroughbred trainer and owner Mark Casse and thoroughbred owner Earl Mack appealed Ruling TB 359/2003, dated September 10, 2003 in which the Stewards denied the protest of Mark Casse with respect to the results of the Natalma Stakes, the 8th race on September 6, 2003 at Woodbine Racetrack.

On November 10, 2003, Chair Lynda Tanaka and Commisioners Patricia Bullock and Dr. Bernard Brennan, DVM of the Ontario Racing Commission convened to hear the appeal.

Harvey Swartz appeared on behalf of Mark Casse, Dan McMahon on behalf of Earl Mack, Karen Murphy on behalf of Starview Stable, the owner of the horse PINK CHAMPAGNE, and Don Bourgeois appeared on behalf of the Administration. Woodbine Entertainment Group was granted status as party and was represented by R.B. Bissell.

Upon hearing the evidence of Steward Nelson Ham, Mark Casse, Reade Baker, R. Bertrand, Chris Evans, Julie Bell and Steve Lym, upon reading the exhibits and upon hearing submissions of the parties, the Commission refused the appeals.

The Commission's reasons for decision are attached and form part of this ruling.

Dated at Toronto this 25^th day of November, 2003.

BY ORDER OF THE COMMISSION

Jean Major

Executive Director

REASONS FOR DECISION

This decision deals with appeals by Earle I. Mack and Mark Casse from the denial of their protest lodged with the Stewards at Woodbine racetrack following the running of the Natalma Stakes on September 6, 2003. The protest concerned placing and outcome of the race and was based on the allegation that the horse that won the race by a close margin, PINK CHAMPAGNE, was carrying less weight that she should have. The basic premise is that if she had been carrying the correct weight she might not have won the race.

The Natalma Stakes is an annual stakes race for two-year-old fillies for a mile on the turf course at Woodbine. It attracts horses from the United States and Britain as well as horses from Ontario. Mr. Mack owned the horse SAREE, which came in second. Mr. Casse trained the horse SAREE and also trained and owned another horse, DO YOU LOVE IT, which came in fourth. Both Mr. Mack and Mr. Casse would therefore receive a larger share of the purse if PINK CHAMPAGNE were disqualified.

Mr. Mack was represented by Mr. Dan McMahon and Mr. Casse was represented by Mr. Harvey Swartz. Ms. Karen Murphy, an attorney from the State of New York, appeared on behalf of the winner, PINK CHAMPAGNE, and Mr. R. B. Bissell appeared on behalf of Woodbine Entertainment Group, the owner and operator of the track and responsible for the documents that form the basis for the dispute in this case. Mr. Bissell applied for party status for his client and was granted it on consent.

Mr. McMahon applied for and was granted an order that witnesses be excluded from the hearing.

The panel referred to the following Thoroughbred Rules of Racing:

Rule 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.

Rule 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 6.05

The conditions of any race, including the distance of the race or the track, whether dirt or turf, may be changed by the Association until the time of entry and after that, only with permission of the Stewards.

Rule 6.40

When any authorized licensee claims the incorrect weight at the time of entry, such weight may be corrected until scratch time for the racing card for which the entry was made, with the exception that no change may be made if it necessitates a rider change. The Stewards may take action against a licensee should this rule be invoked more than once during a racing season.

Rule 6.20.16

If an owner, trainer or authorized agent enters a horse and any condition of the said race is subsequently changed, the owner, trainer or authorized agent may request a scratch for said horse and, if scratched or stuck (required to race) would maintain the original date used to enter the said horse.

Rule 24.02

When there is no specified penalty for violations of the Rules or of the regulations of the Association, the Commission has power to disqualify, fine, suspend, expel from the course, rule off or otherwise punish.

Rule 24.03

If any case occurs which is not or which is alleged not to be provided for by the rules or if the imposition of the rules would prove to be a hardship on any licensee, it shall be determined by the Commission in such manner as it believes is in the best interest of racing. The Commission may also, in its absolute discretion, at any time waive the breach of any of the rules, which waiver or breach the Commission does not consider prejudicial to the best interests of racing.

A document brief of 14 tabs was entered as the only exhibit on consent of the parties. Included in the Exhibit were the copies of portions of the nomination book for Stakes races published by Woodbine for the Natalma Stakes ("the Stakes book") including the nomination forms that were to be filled out in order to nominate a horse for that race, the portions of the conditions book published by Woodbine for the Natalma Stakes, the sheet setting out the horses that had been nominated for the Natalma Stakes, the entry forms for the race, the program page, and the Clerk of the Scales record of the weights carried by the horses in the race.

The problem in this matter is briefly stated. The information on the Natalma Stakes contained in the Stakes book, on the nomination form itself and on the sheet published by Woodbine indicating the horses nominated for the race contained a specific description of what weight allowances were permitted for the horses and therefore what weight the horses would carry. The condition book subsequently published and the program page on the day of races (as well as the overnight sheet) contained a different description of the weight allowances. The horse PINK CHAMPAGNE, under the terms set out in the Stakes book and the nomination form qualified to race carrying only 114 pounds even though she had won one race in July. Similarly several other horses in the race would have been able to race carrying only 114 pounds but they in fact raced carrying 116 pounds. The two horses trained by Mr. Casse fall in this latter category. This discrepancy comes because the description of the conditions of the race contained in later publications differed from what was in the Stakes book.

Indeed the program page contained sufficient information that a knowledgeable person who compared the conditions of the race printed at the top with the information on each horse would have been able to discern that PINK CHAMPAGNE was carrying too little weight, based on her race lines printed on the same page.

If we find that PINK CHAMPAGNE was not entitled to race carrying only 114 pounds, then under Rules 8.02 and 8.03 the horse should be disqualified. The responsibility for ensuring that the horse is carrying the correct weight is ultimately that of the trainer of the horse.

The Administration called one witness, Steward Nelson Ham, who testified as to the handling of the protest that was Tab 2 in Exhibit 1. The Stewards rejected the protest based on their review of the documents including the Stakes book and other documents filed with us.

Ms. Murphy, Mr. Bissell and Mr. McMahon did not call any witnesses. Mr. Swartz called five witnesses including his client.

Mr. Casse testified that he has raced many horses over the years in the Natalma Stakes and is very familiar with the conditions of the race. He nominated several horses to the Natalma Stakes. The nominations forms that were filled out for each horse were included in Exhibit 1. He did not read the Stakes book, and, even though he submitted several nominations for the race, he said he did not read the nomination form with respect to the weight allowances. He did not, he said, because the weight allowance that a specific horse would carry could change between the date of nomination and the date of entry in the race, a period of approximately 2 ½ weeks.

He testified that in entering SAREE and DO YOU LOVE IT, he relied on the conditions sheet to determine what weight allowance his horses were eligible for when his horses were entered on September 3^rd, 3 days prior to the race. He had no specific recollection of actually doing the entry but assumed he or someone on his staff under his direction did so by telephone. He relied on the condition book to determine the weight his horses should carry at the time of entry.

Mr. Casse testified that the normal practice of trainers at Woodbine is to refer to the conditions book, as the conditions book is the latest information that the track releases on the conditions of a race and the track has the right to change those conditions up to the time of entry, and thereafter with the permission of the stewards. He also referred to a sheet faxed by Woodbine the night before entries are due. The most important conditions are the distance, the gender and age of the horses eligible, and whether the race is on dirt or turf. Mr. Reade Baker, another trainer at Woodbine, corroborated this evidence. Mr. Casse says he would have referred to the faxed sheet in preparing his entry and that he would have relied on the Race Secretary's office to check it and make any correction.

Mr. Swartz called four witnesses from Woodbine under summons as part of his case.

The Clerk of the Scales, Mr. Bertrand identified the sheet he kept for the Natalma Stakes noting the actual weight of the jockeys in relation to the weight allowance which is printed on the form. The source of the information on the weight allowance for each horse comes from the Racing Secretary's office. He confirmed that PINK CHAMPAGNE carried 114 pounds and SAREE and DO YOU LOVE IT carried 116 pounds or more, depending on whether the jockey was overweight.

Mr. Chris Evans, Director of Racing at Woodbine and for many years the Race Secretary, testified as to the procedure for the publication of the Stakes book and the conditions book and Woodbine's normal practices with regard to the conditions and changes in the conditions. He testified that in his view the horse PINK CHAMPAGNE was eligible to race with the 5 pound allowance, i.e. carrying 114 pounds, because that is the weight allowance provided under the Stakes book, because the weight allowance was never formally changed by a correction or change issued in accordance with the normal practice of Woodbine, and because there was never any intention to change the weight allowance. He further testified that the information in the conditions book and in the program was in error and arose because of a typographical error in the office at Woodbine when the conditions of the race as described in the Stakes book were transcribed into the conditions book, omitting the words "maiden or". He testified that the conditions of the Natalma Stakes had been changed in 2003 Stakes book from the conditions of the previous year. The weight allowance description in the Stakes book and other documents for 2002 did not include the words "maiden or" but did in 2003.

Mr. Evans also described the process of formal change of conditions after the Stakes book has been published. The end of the process includes the Stakes Co-ordinator being responsible for contacting all trainers whose horses had been nominated to advise of the change in conditions. None of those formal processes were invoked here – the difference between the documents arose solely from an unidentified transcription error. Mr. Evans confirmed that trainers usually use the condition book in preparing their entries to races. Mr. Evans also testified that a typographical error does not change the Stakes book.

Mr. Evans further testified that no one noticed the discrepancy despite the fact that the conditions book is circulated to trainers in a "proof" form as well as in final form, well before the entry date, and that trainers do bring to the attention of the Woodbine staff discrepancies between conditions as described in the Stakes book and those described in the proof or final condition book. He said that if the discrepancy had come to the attention of anyone in the office, the change to the condition book would have been made to correspond to the Stakes book. The condition is also set out in the overnight sheet which is published a couple of hours after the draw and therefore well prior to the race. Again trainers bring errors to the attention of the Race Secretary's office in the normal course.

There were, therefore, several opportunities for a check to be made both by Woodbine staff and by trainers to see if there had been a change in the conditions that was unintentional or otherwise, and to make inquiries. Mr. Evans outlined the process for dealing with these discrepancies. Unfortunately no one noticed until one of Mr. Casse's staff came to him the day after the race pointing out the problem.

Ms Julie Bell, the Stakes co-ordinator who took some of the entries in this race (including that of PINK CHAMPAGNE), testified under summons from Mr. Swartz. At the time of entry the trainer is required to indicate the weight that that horse will carry. The appellants placed significant emphasis on the fact that that a question mark was noted on the entry for PINK CHAMPAGNE with respect to the weight but Miss Bell indicated that she filled in the entry form and she always puts a question mark there on any entry. She further testified that she discussed with the trainer for the horse PINK CHAMPAGNE what the weight should be, and referred to the Stakes book in that regard. She testified that ultimately the responsibility with respect to the weight to be carried was that of the Race Secretary's office.

The Race Secretary Mr. Steve Lym testified that after the entries are taken he as Race Secretary goes over the entries to check the various matters including the weight allowance. Mr. Lym testified that he checked the weight allowances for the other horses in the race against the conditions book, not the Stakes book which was the reference for Ms. Bell. Since the two documents are supposed to be identical this should not be an issue, but in this case it was because of the typographical entry. Because he checked the entries of the other horses against the condition book, other horses carried more weight than if the entries had been checked against the Stakes book. It appears that no one checked the weight allowances for PINK CHAMPAGNE against the conditions book and no one checked SAREE and DO YOU LOVE IT against the Stakes book.

Mr. Lym did not confirm the weight allowance on the entry of PINK CHAMPAGNE at the time of entry because the foal papers which carry the racing history of the horse were not with the entry since the horse was from outside of Toronto. The foal papers apparently arrived with the horse prior to the race but it appears that no one checked them against the condition book or again against the Stakes book to determine whether or not the weight allowance had been properly calculated. If someone checked the foal papers against the Stakes book the weight shown on the entry would have been the correct weight. Only if the check were made against the condition book would the weight have been determined to be too light.

The appellants argued forcefully that the fault lay with the trainer in not getting the foal papers to the entry office in time for the Race Secretary to check them, but as is often the case with horses from outside Toronto and as permitted by the Rules of Racing, the foal papers came later. The fact that PINK CHAMPAGNE had won a race earlier in the year was information available on the past performance record and was public knowledge. What was lacking was not the foal papers but rather follow up when they did arrive and consistent handling of the conditions of the race.

Mr. McMahon indicated that the importance of the win in this matter was that the Natalma Stakes is a Grade III stakes race and that while there was a real issue with respect to the division of the purse there was also the issue of the money to be earned by SAREE as a broodmare in the future if it should be found to be the winner of the Natalma Stakes. We were also advised that since the running of the Natalma Stakes, PINK CHAMPAGNE has had her eligibility for races and weight allowance determined on the basis that she has won this race while SAREE has raced as a non-winner of this race. The conditions of races are such that weight allowances and eligibility are impacted by race wins with the more successful horses carrying more weight in the races than less successful horses.

Mr. McMahon and Mr. Swartz pointed out that the condition book is a very important document as it is the only information in non-Stakes races that is issued by Woodbine as to the conditions of a race, and it is posted on the Web page for ease of access on a local as well as international level. The race in question was, however, a Stakes race.

It was pointed out to us that while the weight allowances are important, some of the horses raced with jockeys who were over the weight in any event, the owners choosing to go with the jockey of their choice rather than change jockeys so the weight could be minimized.

On the basis of the submissions and the evidence we accept the evidence of Mr. Evans the Director of Racing and find PINK CHAMPAGNE was eligible for the 5-pound allowance and therefore to carry 114 pounds because that is what the Stakes book and nomination form provided and there was no formal change to that condition.

The appellants ably and forcefully argued the importance of the weight allowance, but the evidence is that Mr. Casse paid no attention to it at any stage of the process, except in so far as he looked at the most recent document to see what weight his own horses should carry. He testified in fact that he usually uses a question mark on his entries and relies on the Race Secretary to get the weight allowance correct. The fact that PINK CHAMPAGNE had won a previous race and therefore, based on the conditions book, should be carrying 116 pounds, was public knowledge, and was shown on the program page. If the weight another horse in the race was carrying was truly the significant factor in what horse wins the race, then one would have expected the trainers of other horses to have made the assessment when the overnight sheet came out at the earliest up to scratch time at the latest.

The appellants argued that under the Rules of Racing the trainer has the responsibility for ensuring that his horse carries the correct weight and therefore the trainer of PINK CHAMPAGNE carries the responsibility for the disqualification of his horse. This trainer is, however, one who took enough care to speak to the Stakes Co-ordinator Ms. Bell about the weight allowance to ensure he had the correct weight. Further, based on Mr. Evans' evidence both Mr. Casse and Mr. Reade merely followed their usual practices (which are based on Woodbine's documents always being in order) and in Mr. Casse's case that includes reliance on the Race Secretary's office as to the weights. In this case he complains that he was disadvantaged by the actions of the Race Secretary but, as was argued on his behalf, the responsibility is ultimately that of the trainer.

To grant the protest in this case would be to reward those who simply followed the usual practice without taking care on the very issue that they say now disqualifies another horse. Even when his horse lost by a close margin Mr. Casse did not realize the problem. Further, we note that only Mr. Casse, of all the trainers whose horses were beaten in this race, has filed a protest. This is not a case where a trainer foresaw a problem prior to the race, kept quiet and then sought to take a win away from another horse when his horse was beaten, but to grant the protest here, where it is clear that under the description in the Stakes book the filly carried the correct weight, would create an unfortunate precedent.

Mr. McMahon pointed out that the wagering public often take the weights indicated in the program page and the conditions of the race into account in determining what horse to bet on. The mutuel pool has been divided in this case and there is nothing this panel can do about that pool division.

Finally, we note that the issue here arose in the transcription of the conditions from the Stakes book and the nominations forms to the conditions book and thereafter to all subsequent documents. This error was compounded by the inconsistency in the handling of the entries in Race Secretary's office since it is clear that PINK CHAMPAGNE'S lines were never checked against the condition book and, by virtue of comparing the race lines and the weight allowances, the lines of some of the other horses were never checked against the Stakes book. It was also clear from the demeanour and answers of the Race Secretary and Director of Racing of Woodbine during their testimony that they recognized that their organization was at fault and that there clearly is a need for further checks and balances to avoid issues such as caused this case.

Even if we did not accept the evidence of Mr. Evans on the point in issue, in our view the disqualification of this horse would constitute a hardship on the trainer and owner of PINK CHAMPAGNE such as is contemplated in Rule 24.03. We acknowledge that this power should only be sparingly used. We do not believe it is in the best interests of racing to disqualify a horse based on Rule 8.03 in the circumstances described in our reasons here.

The Administration has asked for costs on the basis that this was a frivolous appeal. While we have dismissed the appeal, we believe the process has been useful in inspiring better practices on the part of both the trainers' community and the track and we deny the request.

For the reasons above, the appeals by Earle I. Mack and Mark Casse are refused.

DATED this 25^th day of November, 2003.

Lynda Tanaka

Chair