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

AND IN THE MATTER OF THOROUGHBRED JOCKEY HIROSHI (HAPPY) ANDO

AND THOROUGHBRED OWNER DAVID SUCCAMORE

Thoroughbred Jockey Hiroshi (Happy) Ando and Thoroughbred Owner David Succamore appealed the Stewards' Ruling TB 439/2004 wherein Hiroshi Ando was suspended for three days for violation of Rules 11.07 and 11.09.01for coming in with his mount MORTGAGE MAN and interfering with HANLAN during the fourth race at Woodbine Racetrack on November 28, 2004, and whereby MORTGAGE MAN was disqualified from 1st position and placed behind MORTGAGE MAN in 6th place. On August 3, 2005, the Thoroughbred Division of the Ontario Racing Industry Board of Appeal heard and dismissed the appeals.

On October 5, 2005, a Panel of the Ontario Racing Commission consisting of Chair Lynda Tanaka and Commissioners David Gorman and George Kelly convened to hear the further appeal. Brendan Van Niejenhuis represented the Administration and Dan McMahon represented the Appellants.

On hearing the evidence of Steward Richard Grubb, Thoroughbred Jockeys Emile Ramsammy and Patrick Husbands, Thoroughbred Jockey Hiroshi Ando, and Thoroughbred Trainer Scott Fairlie, and on reading the Exhibits, filed, and on hearing the submissions of counsel, the Commission DISMISSED the appeals, upheld the violations of Rule 11.07 and 11.09.01, upheld the three-day riding suspension of Hiroshi Ando, and upheld the placing of the horse from first to sixth place.

The Panel gave oral reasons for decision, the transcript of which is attached to this Ruling.

DATED this 1^st day of December 2005.

BY ORDER OF THE COMMISSION

John L. Blakney Executive Director

ONTARIO RACING COMMISSION

THOROUGHBRED HEARING

IN THE MATTER OF THOROUGHBRED LICENSEES HIROSHI ANDO AND DAVID SUCCAMORE

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 5th day of October, 2005.

DISCIPLINE COMMITTEE PANEL: L. Tanaka Chair G. Kelly D. Gorman

APPEARANCES: B. Van Niejenhuis Counsel for the Administration Dan McMahon For the Appellants

Also Present: Ed Hall

--- Upon resuming at 1:23 p. m.

REASONS FOR DECISION

THE CHAIR: We have been able to come to a conclusion in this case and let us say at the outset that we appreciate that people feel very strongly about this case. It's been appealed this far. It's been the subject of consideration by the stewards, by the Industry Appeal Board, and we recognize that a considerable period of time has passed since the original race running. We also recognize statements by the witnesses from time to time have been confusing and we recognize the tapes do not show entirely and consistently the situation because of the difficulties of the angles that we have.

The matter at its best, in terms of interference and who is a major contributor or not is always a judgement call for which we have three stewards in the stand applying their best judgement and then later, the Industry Appeal Board applying their best judgement.

Ultimately, when a matter is appealed this far it comes to our best judgement, and we come to our conclusion based on what we've heard and what we've seen and, as well, what we've read.

We accept Mr. Ramsammy's evidence as to the relationship of the timing of his yelling and the checking of his horse which indicates an earlier point than was acknowledged by either Mr. Fairlie or Mr. Ando in their evidence. We do not accept that Mr. Husband was a major contributor to the incident in which Mr. Ando clearly moved from what is approximately the second lane from the rail, into the rail lane. We do not accept the appeal that Mr. Ramsammy was a major contributor of this. Neither of those two riders, in our view, contributed to Mr. Ando moving, as his only option, into the rail lane.

We accept the evidence of Steward Grubb and of Mr. Ramsammy and Mr. Husband, two very experienced riders, that Mr. Ando should have and could have stayed in his lane. We find support for their evidence in the video and in the transcript which was read to us, Exhibit 3.

There's a section of the transcript in which Steward Grubb says after looking at the movie, this is to Mr. Ando: "Do you think you could have made a little more effort, give Emile a little more shot?" And we recall Mr. Ramsammy's evidence that he just need a couple more strides which Mr. Ando didn't give him. Mr. Ando's response to Steward Grubb was: "Right at that time the wind pushed me, too, so when the horse take leave I thought I had -- I thought I had given enough room for him."

To us, it's clearly an error in judgement. It's how much room was given to Mr. Ramsammy. We dismiss the appeal. We note that this horse won by seven lengths, and in the normal course, we don't like to interfere with the outcome of a race. No time was spent on any of the testimony before us on what happened after this incident. It seems to have been accepted by both parties that this incident was determinant of what happened to Mr. Ramsammy. In that situation, we have no choice but to accept the Stewards' discretion and that confirmed by the Industry Appeal Board that this horse should be placed -- even though it won by seven lengths, should be placed 6th.

MR. VAN NIEJENHUIS: Thank you, and Mr. Hall has brought to my attention, we assume that the dismissal of the appeal means that the three days is not disturbed?

THE CHAIR: The three days is not disturbed because it was agreed that if there was interference and we made the findings in accordance with what had been decided earlier. We understood it was agreed that that was the penalty that was accepted. Okay?

MR. VAN NIEJENHUIS: Thank you very much.

THE CHAIR: Thank you very much.

--- Whereupon proceedings adjourned at 1:29 a. 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