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

AND IN THE MATTER OF STANDARDBRED OWNER DAVID GAGE

Standardbred owner David Gage appeared before the Commission, having requested a hearing to determine the appropriate manner for selecting starters for the Ontario Sires Stakes Gold Final for two-year-old colt pacers scheduled for July 5, 2005 at Kawartha Downs, in light of a dead heat for second place that occurred during one of the elimination heats held on June 28, 2005.

The ORC Panel hearing the matter consisted of Chair Tanaka and Commissioners Kelly and Garthson. The Panel convened on an urgent basis on June 30, 2005. Aaron Dantowitz represented the Administration and Gerald Sternberg represented David Gage.

On hearing the evidence of Bill Hicks, on reading the exhibits filed and on hearing the submissions of the parties, the Panel found that the judges' determination that the starters for the Gold Final could be determined by drawing lots from all second-place finishers in the elimination heats was open to them based on the language of the relevant conditions and the OSS Racing Guide. The Panel found, however, that in keeping with the general beliefs and understanding of horsemen, the draw by lot should have been held only between the two horses that finished in the dead heat.

The Panel therefore directed that the Race Secretary at Kawartha Downs conduct a new draw involving only the horses Warrawee Hero and Great Balldini, and that the first name drawn be eligible to race and the other horse be listed as also eligible. The Panel acknowledged that as a consequence, a new draw of all post-positions for the Gold Final on July 5, 2005 would also have to be conducted.

The Panel gave oral reasons for decision which form part of the transcript of the hearing.

DATED this 16^th day of November 2005.

BY ORDER OF THE COMMISSION

John L. Blakney

Executive Director

Transcript

ONTARIO RACING COMMISSION

STANDARDBRED HEARING

IN THE MATTER OF STANDARDBRED LICENSEE

DAVID GAGE

REASONS FOR DECISION

Hearing conducted in the Hearing Room of the Ontario Racing Commission, 7th Floor, 20 Dundas Street West, Toronto, Ontario, on Thursday the 30th day of June, 2005.

DISCIPLINE COMMITTEE PANEL:

L. Tanaka Chair

J. Garthson

G. Kelly

APPEARANCES:

Aaron Dantowitz Counsel for the Administration

Gerald Sternberg For the Appellant

--- Upon commencing June 30th, 2005, 2:10 p. m.

REASONS FOR DECISION:

THE CHAIR: We've been able to come to a determination on this case and we thank both counsel for their helpful arguments and Mr. Hicks for his evidence.

We've gone over the documents that have been filed with us and we find there's considerable ambiguity in the documents relating to the situation from the elimination race to the final. We also find the documents do not direct us in one specific way as to the outcome on the two alternatives, that is, that the issues were as stated: should the draw be only including the two horses, were Great Baldini and Warrawee Hero, or should all those horses that finished 6th be in the draw.

We believe that the judges determination was open to them, based on the words in Exhibit 3 which is the condition sheet for Ontario Sire Stake Number 33 for Standardbred Foals of 2003, and based on Exhibit 2 which was the Ontario Sire Stakes 2005 Racing Guide. But we believe the horsemen generally believe that a horse that comes second has been beaten only by one other horse, whereas a horse that's in a dead heat for second has not been beaten by only one horse.

While we do not accept the wording in the Standardbred Canada form which is tab 3 of Exhibit 1, which says, "top two from each elimination advance to go to final", or in the program as binding on us, they do reflect the general understanding of the intended outcome in the face of this ambiguity and that it that the top two finishers should be in the finals.

In order to determine the top two finishers in the race where there has been a dead heat, we find the draw by lot should have been held of only the two horses in the dead heat. Hombre had earned its place as the second horse finishing in it's own race and should not have been subject to the luck of the draw with those two horses who had not clearly earned their place in eligibility. We believe this determination is consistent with the goal that each elimination stands on its own in terms of it determining the eligibility of horses to go on to the next stage. Hombre had clearly earned a spot in the Gold. The two dead-heated horses had not clearly earned their place which they secured as a result of the judges' determination.

Therefore, we direct the race secretary to conduct a draw of one name from the two horses which were dead-heated and they were Great Baldini and Warrawee Hero. The horse's name that is drawn will be drawn into the race and the other will be declared the also eligible. Hombre is eligible for its place in the Gold Final.

We, again, thank counsel for their assistance. Is there anything else we need to deal with in order to resolve this.

MR. STERNBERG: I don't think so. I think that that certainly clarifies for the draw, now, as to which horse enters in, which had been (inaud.).

THE CHAIR: But I think he will need to have a draw of the post positions again because you new have Hombre in instead of those two horses who were dead-heated. You're going to have one of those two dead-heated horses in, so we need to have a fresh draw of the post positions which isn't going to make those other horsemen happy, but as you have heard from our questions, we have struggled with this, and now that we have the O.S.S. under the Commissions umbrella as opposed to being under the OHRIA umbrella, we're going to hope to do better. And that's not a criticism of OHRIA, but these situations come up and we just have to take them one step at a time.

So as long as it's clear in the administration, the race secretaries can act on it. I am around this weekend if the Administration wants to get in touch with me. They can e-mail me. I will have my Blackberry on quite regularly all weekend for other purposes.

MR. DANTOWITZ: Thank you, Madam Chair.

MR. STERNBERG: Thank you.

‑‑‑ Whereupon proceedings adjourned at 5:15 p. m.

I HEREBY CERTIFY THE FOREGOING

to be a true and accurate transcription

of a cassette tape recording

to the best of my skill and ability.

MAUREEN BYNOE, Stenomask Reporter

B. A., Commissioner of Oaths