IN THE MATTER OF THE RACING COMMISSION ACT 2000, S.O. 2000, c.20;
AND IN THE MATTER OF
ORC LICENSEE CHRISTOPHER EVANS
Thoroughbred Association Official Christopher Evans appealed Stewards' Ruling Number TB 3054/2005 issued against him on June 5, 2005, wherein he was fined the sum of $500.00 for showing disrespect by failure to comply with the directions of an Ontario Racing Commission Steward, in connection with the pulling of the entry of the horse LUCHERINO from the 2nd race to be run on June 2, 2005 at Woodbine Racetrack.
The Ontario Racing Commission Panel hearing the matter consisted of Chair Tanaka, sitting alone. The Panel convened on November 9, 2005. Aaron Dantowitz appeared for the Administration and David McCutcheon and Colleen Butler appeared for Christopher Evans.
On reviewing the Exhibits filed, on hearing the evidence of Steward Gunnar Lindberg, Christopher Evans and Sheryl McSwain, and on hearing the submissions of counsel, the Panel allowed Mr. Evans' appeal.
The Panel's written reasons for decision are attached to this ruling.
DATED this 28th day of December, 2005.
BY ORDER OF THE COMMISSION
John L. Blakney
Executive Director
REASONS FOR DECISION
This hearing dealt with an appeal by Christopher Evans, Vice President of Thoroughbred Racing Operations at Woodbine Entertainment Group (“WEG”) from a ruling by the Stewards at Woodbine that he violated Rules 16.02.04 and 16.02.05 of the Thoroughbred Rules of Racing. Mr. Evans was fined $500.
Mr. Evans is licensed as a thoroughbred racing association official. He has been the Racing Secretary at Woodbine for thoroughbred racing for many years prior to holding his present position as Vice President of WEG.
The relevant rules cited in the Stewards’ ruling provide as follows:
16.02.04.1 In all matters pertaining to racing, the orders of the Stewards shall supersede the orders of the officers, directors and officials of the Association.
16.02.04.2 All entries, declarations and scratches shall be under the control and supervision of the Stewards.
16.13 The Stewards may impose any or all of the following penalties for conduct prejudicial to the best interests of racing, or for a violation of the Rules:
(d) Impose whatever fine they feel is suitable and justifiable.
A partial agreed statement of fact was entered as Exhibit 1. The parties referred to other rules related to the entry of horses, the role of the Race Secretary’s Office (“the race office”) and the role of the Stewards.
The trainer for the horse named LUCHERINO tried to enter the horse in the second race at Woodbine to be run on Thursday June 2, 2005 while the horse was on the veterinarian’s list. Rule 6.38 provides that no horse on the starter’s, veterinarian’s or Stewards’ list in any jurisdiction shall be eligible to be entered or start in Ontario. The Rule provides that it is the responsibility of the licensee making the entry to ascertain that the horse is not currently on any of the above three lists. Since the horse was on the veterinarian’s list, the trainer should not have entered the horse to race: the horse was ineligible to race. Under Rule 6.28 and 6.38, a licensee is responsible for the eligibility of horses entered by him/her. We are not dealing with any penalty imposed on the trainer who entered the horse in error.
The Assistant Race Secretary Sheryl McSwain spotted the problem of eligibility in reviewing the entries, well before the draw was held for the race. Ms. McSwain told the Steward on duty that the horse was ineligible and that she intended to pull the entry. It was a “dark” day at Woodbine and only one Steward was on duty. The Steward instructed Ms. McSwain that “since the entry had already been accepted”, it could not be pulled except by order of the Board of Stewards that would meet the next day. The timing was such that the draw for the race would include the ineligible horse if the entry were not pulled.
The trainer of the horse apparently was confused as to the process by which a horse was taken off the Veterinarian’s list. When Ms. McSwain told the trainer that the horse was ineligible, the trainer disputed it and Ms. McSwain referred her to the Steward. The trainer asked the Steward if she, as trainer, could pull the entry, and the Steward said no, that it would be dealt with by the Board of Stewards the next day. Mr. Evans then became involved and, reciting Rule 6.38 of the Rules of Thoroughbred Racing, instructed his staff to pull the entry.
The Steward instructed Ms. McSwain not to pull the entry. The debate continued with Ms. McSwain receiving instructions from Mr. Evans to pull the entry and from the Steward not to pull the entry because the Board of Stewards had to rule on the issue. The entry was pulled and Mr. Evans was disciplined by the Stewards for failing to obey the direction of the Steward.
The evidence is that entries are handed in or called in during a limited period of time. The specifics of the horse and the race to be entered are recorded at the race office on the entry slip. Those entry slips are then reviewed by the race office staff to establish the horse’s eligibility. The staff does not regard the entry as “accepted” until they have had a chance to determine if the horse is eligible.
In the end there was no disagreement among the parties that the horse was ineligible to race. The disagreement arose on the issue of whether or not the entry had been accepted and should stay in until after the draw and the determination of the Board of Stewards.
The Steward’s evidence was that the veterinarian’s list, which is available on computer, had in the past not been totally reliable, and therefore he wanted confirmation of the eligibility. When the trainer reviewed the process of getting the horse off the veterinarian’s list, apparently there was then no disagreement: the horse was ineligible.
The Steward’s position, argued by the Administration in defence of the finding against Mr. Evans, was that it is better to leave the horse into the entries for the draw until the Steward could confirm the information on the computer with the veterinarian, than to exclude the horse from the draw. If the horse is excluded improperly, it is assigned the outside post position, but if it is left in the draw and then removed, the other horses simply move in one position. The Steward’s view was that there was no rush and that the matter could wait until the Board of Stewards dealt with the matter the next day.
Mr. Evans’ perspective was that the horse was clearly ineligible. Everyone agreed finally on that point. He believed that there is no use in cluttering up the draw with ineligible horses.
The case, however, soon developed into a dispute as to who was in control in the race office and the overriding supervisory power of the Stewards. The case was argued on the basis of two apparently inconsistent principles, the first being the principle that is expressed in Rule 16.02.04 concerning the supervisory power of the Stewards including their power to attend to issues of eligibility. The other principle involves the principle in Rule 6.10.02, the responsibility of the Race Secretary. WEG does not dispute the Stewards’ supervisory power but to the extent that the race office is empowered to make decisions, specifically as to whether or not to accept an entry, WEG objects to encroachment into that jurisdiction by the Stewards. The Race Secretary’s office frequently rules that entries are ineligible for one of the many reasons that can come into play. The passing of the entry across the desk does not, according to WEG, mean the entry has been accepted as one of an eligible horse. The entry is not accepted until it has been scrutinized by the WEG staff. Under Rule 6.10.02, for all races, the racing secretary or designated personnel are the only persons authorized to receive entries or scratches.
In some Rules there is a distinction made between eligibility to enter and eligibility to start. It is clearly provided, as noted above, in Rule 6.38, when the veterinarian may put a horse on the Veterinarian’s list for some issue that arose between entry and the start of the race. Also in Rule 6.11.01.1, a horse is “not eligible to be entered in or to start a race if owned in whole or in part by a suspended, disqualified, unlicensed or ineligible person.” The distinction is included to deal with the potential that between the date of entry and the day of the race, an owner’s status may change. Once the draw is made, then the Stewards must ensure that any adverse change results in the scratching of the owner’s horse. That control by the Stewards is made clear in Rules 6.11.01.2 and 6.11.01.3. Rule 16.02 is also absolutely clear in identifying the limits of the race associations and its officials, vis-a-vis the Stewards.
Both Mr. Evans and Ms. McSwain were clear that they would try to work out any disputes with trainers as to eligibility of an entry themselves, but, if that failed, they would go the Stewards for a resolution. Therefore the race office acknowledged the supervision of the Stewards on the issue of eligibility.
Given the volume of races and entries and the limited time in which these decisions must be made, the structure only works with the close co-operation of the race office and the Stewards. In this case that co-operation broke down. The Steward who had the power to make the decision on his own, refused to make the decision and attempted to force the race office to not make a decision on eligibility, but rather to leave it to the Board of Stewards the next day.
On the basis of the evidence the Commission finds that the entry was assessed as ineligible during the process by which the race office determines whether or not to accept an entry and not after the entry had been accepted. The trainer, in the process of working through the issue of the eligibility, was in agreement with the race office and therefore there was no dispute for the Board of Stewards to resolve. With a clearly ineligible entry, where the trainer has acknowledged the error made in submitting the entry, the race office should be able to refuse to accept an entry so that the draw is not cluttered with clearly ineligible horses. It is the proper responsibility of the race office to ensure that only eligible horses are entered for the draw. In the event of dispute as to eligibility to race, the Stewards are supposed to be able to resolve the issues. Absent a dispute, the race office should make the decision.
In this case, the delay imposed by the Steward makes no sense. I understand the preference to leave the horse in the draw if there is a dispute, but in this case the trainer agreed, after discussion with the Steward, with the race office, and there was no dispute to be resolved.
No matter who was correct on the interpretation of the Rules, there remains the issue of whether or not Mr. Evans should be disciplined because he refused to obey the order of the Steward. That there is a culture of compliance with the Rules of Racing in the WEG race office is not in dispute. The Commission has been assured that there is no underlying agenda to undercut the obligation to accept the supervision of the Stewards. My impression of all the witnesses that testified is that the pressure of the particular day and the time had much to do with the escalation of the dispute to this point.
In view of the blemish-free record of Mr. Evans as an ORC licensee and my observation of him when he testified, I grant the appeal.
DATED this 23rd day of December 2005
Lynda Tanaka
Chair