IN THE MATTER OF THE RACING COMMISSION ACT 2000, S.O. 2000, c.20;
AND IN THE MATTER IN THE APPEAL OF
THOROUGHBRED TRAINER DAVID BELL
Thoroughbred Trainer David Bell on behalf of himself and owner Melnyk Racing Stable Inc. appealed the decision of the Thoroughbred Industry Appeal Board with respect to the placement of the number 7 horse Horse Hill in the 9th race September 17th, 2005 at Woodbine Racetrack.
On April 5th and May 3rd 2006, a panel of the Ontario Racing Commission consisting of Chair Lynda Tanaka, Bernard Brennan, DVM and David Gorman, convened to hear the appeal.
Luisa Ritacca appeared at the hearing for the Administration, Dan McMahon appeared for David Bell and Debra Rombis appeared on her own behalf together with Norman Marchi.
On hearing the evidence of the parties and on reading and reviewing the exhibits filed, the panel dismissed the appeal and confirmed the order of finish in the decision of the Industry Appeal Board with Cash Case finishing first and Horse Hill finishing 2nd.
The panel’s reasons for decision are attached to this ruling.
DATED at Toronto this 30th day of August 2006.
BY ORDER OF THE COMMISSION
John L. Blakney
Executive Director
REASONS FOR DECISION
Thoroughbred trainer David Bell on behalf of himself and owner Melnyk Racing Stable, Inc. appealed the decision of the Thoroughbred Industry Appeal Board with respect to the placement of the number 7 horse Horse Hill in the ninth race September 17, 2005 at Woodbine Racetrack
Jockey Martin Ramirez claimed foul as a result of a bumping incident between his horse, the number 5 horse Cash Case and the number 7 horse Horse Hill ridden by jockey Jim McAleney. Horse Hill had finished first and Cash Case second, though only by a nose. The Stewards did not allow the claim of foul and the trainer of Cash Case, Debra Rombis successfully appealed to the Industry Appeal Board. That Board found that Cash Case was noticeably impeded by the impact and the likely outcome of the race affected. The Industry Appeal Board ordered that Cash Case be placed first and Horse Hill placed second.
The Commission conducted a hearing de novo and heard evidence from Steward Russ Fernandes, jockeys Martin Ramirez, Jim McAleney, and Todd Kabel, trainers Bell and Rombis, as well as trainer Alex McPherson and jockey’s agent Doug Gibbons. The videotape of the race was reviewed with the assistance of the witnesses.
The outcome of this appeal depends on two findings of fact:
a) did the number 7 horse Horse Hill move to a part of the track when it was not clear, and
b) did the number 7 horse interfere with, impede or bother the number 5 horse Cash Case.
The evidence of Steward Fernandes was that Horse Hill did come out, as he is entitled to do so long as the way is clear. He said that Cash Case was also moving slightly in. He said that the Stewards were unable to conclude who caused the bumping but that horses do bump in the course of thoroughbred races without any claim of foul and without any finding of interference or change in the order of finish. He acknowledged that Cash Case might have suffered as a result of the contact. He testified that it appears on the video that Cash Case was at one time in the lead and that after the bump the horse did not regain the lead. The Stewards concluded that Horse Hill did not impede or interfere with or bother Cash Case within the meaning of the Thoroughbred Rules of Racing.
Jockey Ramirez testified that as a result of Horse Hill coming out, he had to go out and eventually Horse Hill hit Cash Case, costing him a half length. Given that Cash Case was only beaten by a nose, the half length lost was significant. He admitted that horses do bump in the course of a race without any claim of foul and without any interference being called.
Jockey McAleney testified that in the stretch run he was trying to “hook up” with Cash Case and that that is a perfectly appropriate technique for racing. He said that Horse Hill is a horse that likes to be aggressive and that he brought the horse out away from the lane it was in so that it could hear the other horse coming. He did not believe that the outcome would have been any different if the horses had not bumped. He said that rather than stopping Cash Case, his tactic of hooking up had resulted in Cash Case running better than he would have otherwise. His testimony was supported by Mr. Bell.
Todd Kabel who rode in the race on another horse had no specific recollection of the race. Based on his review of the film, he testified that neither rider stopped riding after the bump.
Ms. Rombis testified that her horse was interfered with, that it was herded out and bumped, and that, given the very close finish by the two horses, who were at the finish line head to head, the bump did change the outcome of the race. She provided evidence of the industry media interpretation of the race, which clearly referred to the bump but took the position that Cash Case had not missed a stride. Ms. Rombis disagreed with that assessment and pointed to veterinarian care required after the race for Cash Case because of the bump. Her position was that Cash Case was in the process of passing Horse Hill until the bump and that the bump was severe enough that it constituted interference and cost her horse first place.
Trainer Alex McPherson testified that he watched the race that day on the monitors at the track. He said that when he watched the race as it was run with the head on shot, he did not think that the bump was much or that there had been interference. He said that during the period of time that the inquiry sign was up, when the track broadcast the pan shot and other views of the race he became convinced that in fact there had been interference. He said it was incredible that the Stewards made the ruling they did, finding no interference. He said that what made the difference for him was that when viewed on the pan shot it is clear that Cash Case is taking the lead from Horse Hill, until he was bumped. He vehemently disagreed with the proposition that Cash Case had not lost any momentum as a result of the bump.
Douglas Gibbons who has been a jockey, an assistant clerk of the scale, a jockey’s guild representative and a member of the industry appeals board for one year, testified that the bump caused Cash Case to lose enough momentum to lose the race. He was watching the race from Fort Erie on the TV monitor that broadcasts the Woodbine races there. He agreed that hooking up was a valid race tactic but the bump constituted interference.
It is clear from the evidence that this is a situation where there will be many different points of view on the questions before us within the racing industry. In our view jockey McAleney deliberately brought his horse out from the third lane to “hook up” with Cash Case that was clearly challenging him for the lead. In the course of Horse Hill coming out, for whatever reason, the two horses bumped. We find that the way was not clear for McAleney to move as far out as he did and that he interfered with Cash Case, in violation of the Rules of Racing. We find that Cash Case was, until that bump, either in the lead or even with Horse Hill, and that the outcome of the race, given how it finished, was impacted by the interference.
We answer yes to both questions noted above. We therefore dismiss the appeal by David Bell and Melnyk Racing Stables, Inc. and confirm the order of finish in the decision of the Industry Appeal Board with Cash Case finishing first and Horse Hill finishing second.
DATED this 30th day of August 2006.
Lynda Tanaka
_________________________
Chair