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

AND IN THE MATTER OF STANDARDBRED DRIVER/TRAINER/OWNER DAVID BOUGHTON

Standardbred Driver/Trainer/Owner David Boughton appealed the decision of the Ontario Racing Industry Appeal Board dated June 8, 2005, affirming Judges' Ruling Number SB 32694 issued against him on March 27, 2005, wherein the judges had (a) imposed a 3-day driving suspension for violation of Rule 22.05(a) [now 22.05.01(a)] of the Rules of Standardbred Racing, for bearing in causing interference on horses on the inside while driving GETBEHINDANYTHING in the 9th race at Flamboro Downs on March 23, 2005, and (b) placed GETBEHINDANYTHING 5th in that race, although it had finished 2nd.

The ORC Panel hearing the matter consisted of Vice-Chair Todd and Commissioners Garthson and Walker. The Panel convened on July 20, 2005. Aaron Dantowitz appeared for the Administration and David Boughton appeared for himself.

On hearing the evidence of Judge Chuck Fraleigh, David Boughton and Michael Langdon, and on reviewing the Exhibits, and on hearing the submissions of counsel, the Panel found that David Boughton had not caused inteference with horses on the inside, and had therefore not violated Rule 22.05.01(a) of the Rules of Standardbred Racing. The Panel allowed the appeal, quashed Mr. Boughton's penalty and suspension, and ordered that the original placings in the race be restored.

The placing of the first five horses in the 9th race at Flamboro Downs on March 23, 2005 are therefore restored as follows:

COUNTRY CHILL - 1st;

GETBEHINDANYTHING - 2nd;

DROPTHEDAWN - 3rd;

ICE WOOD A - 4th;

RAMBLIN TINA - 5th;

and the purse shall be redistributed accordingly.

The Commission's reasons for decision form part of the transcript of the hearing and are attached to this Ruling.

DATED this 26th day of July, 2005.

BY ORDER OF THE COMMISSION

John L. Blakney

Executive Director

ONTARIO RACING COMMISSION

STANDARDBRED HEARING

IN THE MATTER OF STANDARDBRED OWNER/DRIVER/TRAINER

DAVID BOUGHTON

REASONS FOR DECISION

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

DISCIPLINE COMMITTEE PANEL:

L. Todd Vice Chair

J. Garthson

B. Walker

APPEARANCES:

Aaron Dantowitz Counsel for the Administration

David Boughton For Himself

--- Upon commencing July 20th, 2005, 10:14 a. m.

REASONS FOR DECISION:

THE CHAIR: Following are the unanimous reasons of this panel. Mr. Boughton is appealing the original Standardbred Ruling, which was number SB 32684, delivered and dated the 27th of March, 2005 with regard to the 9th race of Flamboro Downs on that day. This order of the judges, as above, was apparently affirmed in its entirety by an industry appeal board decision dated June 8th, 2005. That affirmation is found at tab 9, Exhibit 1.

We've heard the evidence of Judge Fraleigh, the appellant and Michael Langdon, as well as numerous views of various tapes of the race from various perspectives including, in particular, the north tower at Flamboro.

We do note that neither this panel, nor the Industry Appeal Board, or even the judges could take the expected and usual assistance from the taped view of this particular race as a consequence of an apparent deluge of rain and/or snow n the lenses of the various cameras on the day in issue.

The allegation is that Mr. Boughton caused "interference" against Mr. Langdon's horse as the field came to the apex of the fourth turn approaching the head of the stretch on the ninth race at Flamboro Downs on March 23rd. Today, this panel has had the benefit of the viva voce evidence of Michael Langdon, the supposed aggrieved party. We are left to query why Mr. Langdon's presence wasn't requested and/or compelled before the Industry Appeal Board. He has told us that he wasn't even interviewed as part of the appeal process until several days ago. We are obliged to give unequivocal and the utmost credibility to the evidence of Mr. Langdon. His evidence here to day is contrary to his best interests in that he has acknowledged that it was his horse and not Mr. Boughton's horse that was: "...not in the right place."

Mr. Langdon further stated that his telephone comments to the judges during the judges inquiry on Wednesday, March 23 were to the effect that: "We just brushed forks and that was it." Mr. Langdon also indicated to the judges, according to him, that: "There was no wheel inside mine."

Given the evidence or lack thereof that will be referred to hereinafter, we are unequivocally obliged to accept Mr. Langdon's evidence as to the nature of his comments to the judges after the race. We do note that there was no tape available to us of the conversation between the subject drivers and the judges.

We do have the evidentiary notes at Exhibit 1, tab 12, of Judge Fraleigh, however, it is clear from Judge Fraleigh's evidence and very readily acknowledged that it was not Judge Fraleigh, but one of the other two judges that had the conversations with both Mr. Boughton and Mr. Langdon. Accordingly, and given the fact that Judge Fraleigh's notes are therefore hearsay, and given the entire and overall demeanor of Mr. Langdon, we are obliged to prefer his evidence over that of any other party giving evidence here today.

We have heard the reasons and the rationale as to why the audio tape was apparently over-taped and/or erased. This is not the first time that panels hearing appeals have heard that the tapes are unavailable for various reasons and it is a matter of ongoing concern that these are not available when credibility and what was actually said at the time is in issue.

The videotape of the north tower shot also confirms the events as described by Michael Langdon in every detail. Mr. Langdon used the pointer to demonstrate the misalignment of his horse within the inside lane as the field came off the last turn. Mr. Langdon stated that he never stopped driving his horse and all video shots would tend to confirm same. Mr. Langdon's horse was, accordingly, not impeded by Mr. Boughton's horse or bike.

All of the verbal evidence and all of the visual evidence before us confirms that Mr. Boughton at any material times was approximately one half a length ahead and outside of Mr. Langdon's bike and/or horse. Accordingly, the appeal is allowed in its entirety and the placings in the race are to be restored to the original actual finish.

We must and do note our residual query as to why this appeal was ever necessary. Had all of the relevant witnesses been interviewed and their evidence considered, it is out thought that the Administration may well have been advised to consider and/or consent to this appeal being allowed or varied in some respect. Our concern in this respect is in no way directed towards any of the counsel or participants who directed either this hearing or the Industry Appeal Board, but it is our view that the Administration must look at the viability of their case in certain circumstances and consider all of the evidence that may come before an appellant tribunal. Those are our reasons.

Mr. Boughton, is there anything we've omitted or overlooked for from your perspective?

MR. BOUGHTON: No, sir.

THE CHAIR: Mr. Dantowitz?

MR. DANTOWITZ: No, Mr. Chairman.

THE CHAIR: Given that the appeal is allowed, it's a given, Mr. Boughton, that your penalty and suspension is quashed and the original placings will be restored and Mr. Dantowitz, I take it the actual order that the Executive Director signs can deal with the actual particulars of the replacing so that Mr. Boughton goes back to second, Mr. Boughton?

MR. BOUGHTON: Yes.

MR. DANTOWITZ: Yes, no problem.

THE CHAIR: Thank you very much, folks, and we appreciate your time and your patience while we gave consideration to this matter.

--- Whereupon proceedings adjourned at 1:13 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