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

AND IN THE MATTER OF THE APPEAL OF

THOROUGHBRED JOCKEY PATRICK HUSBANDS

AND IN THE MATTER OF THE APPEAL

OF THOROUGHBRED TRAINER MARK CASSE

MAJORITY DECISION

1. Jockey, Patrick Husbands appealed TB Ruling 4860/07 wherein he was suspended 3 racing days for violation of Rules 9.14.1, 9.14.2 and 9.14.3. Thoroughbred Trainer, Mark Case appealed TB Ruling 4864/07 wherein the horse SEALY HILL was disqualified from the #1 position and placed 3^rd for going in and interfering with QUIET JUNGLE during the 6^th race at Woodbine Racetrack on July 1, 2007. While the appeals were separate, it was agreed by both the appellant represented by legal counsel Dan McMahon with assistance from Karen Murphy and the Administration represented by Patty Latimer to hear them together.

Background

2. During the running of the Bison City Stakes, a $250,000 race which was run at Woodbine Racetrack on July 1, 2007, the number 4 horse, SEALY HILL ridden by jockey Patrick Husbands came in on the number 3 horse, QUIET JUNGLE, ridden by jockey Todd Kabel at around the 3/8^ths pole at the top of the stretch run. In doing so, SEALY HILL moved from the 4 or 5 path down into the 2 path.

3. The Stewards posted the inquiry sign on their own volition suspecting a violation of the rules and also were contacted, post race, by the outrider, Gordon Glick, who is the person the jockeys contact if they want to claim foul, informing them that Mr. Kabel asked them to take a look at the race as it related to the running of the race at the top of the stretch. Conflicting evidence was presented related to Mr. Kabel’s communication to Mr. Glick as to whether this was a formal way to register a claim of foul.

4. Subsequently, jockey Husbands was found in violation of TB Rules 9.14.1, 9.14.2 and 9.14.3. As a result, he was suspended for 3 racing days, appealed that ruling (Ex. 1, tab 2) and was granted a stay (Ex. 1, tab 3) pending a hearing. SEALY HILL, who won the race, was disqualified as a result of the interference, TB Ruling # 4864/07 (Ex. 1, tab 4) and placed third behind STREET SOUNDS who finished second and QUIET JUNGLE who finished third in the race. The trainer of SEALY HILL, Mark Casse, appealed this decision (Ex.1, tab 5).

5. Steward William McMahon testified that as one of the three stewards in the stand that day, he viewed the race live via binoculars and that he observed SEALY HILL tuck in around the 3/8^ths pole at the top of the stretch. In doing so, this caused Todd Kabel who was riding QUIET JUNGLE to check his horse. This interference is a violation of TB Rule 11.09.1, which reads as follows:

”If a horse or jockey bothers another horse or jockey, the aggressor may be disqualified provided that the bothered horse or jockey or an additional horse or any jockey/s was/were not a major contributor to the incident.”

It was his view that jockey Husbands could have taken a better hold of his horse to prevent the interference even though he did change the stick to his left hand.

6. Mr. McMahon testified that in order to be clear and conform to the rules, a horse needed to be 1 and ½ lengths to 2 lengths ahead of another horse. This means that a horse had to have that distance clear before it could move into another horse’s path. Conflicting testimony was given by jockey Husbands, trainer Mark Casse and confirmed expert witness, Mr. Bernard Hettel, that ½ length was required for safe clearance. It was alluded that the winner of the 2007 Kentucky Derby made a similar move to win that race as did SEALY HILL in the Bison City Stakes.

7. A split screen video replay of the race was introduced for another perspective review of the race by the appellants, as Exhibit 4, over the objections of Ms. Latimer claiming no one was present to authenticate it. The Panel ruled to accept it and that it would give it the appropriate weight. There was agreement that having such a tool available would be helpful to the Stewards to assist them adjudicating a race as in Ontario, split replays are not available for the Stewards.

8. Following the race, the Stewards followed their normal procedure when a possible rule infraction of this type may have occurred. They conferred amongst themselves, reviewed the video replays from the various camera angles and talked to the respective jockeys before making their call that interference in violation of the rules had occurred. As a result, SEALY HILL was disqualified from finishing first and placed third.

9. The next day the Stewards continued to follow normal procedures by convening a hearing that involved the parties to the incident. This included reviewing the official replays of the race and interviewing the jockeys. Following this process, the stewards issued TB Ruling 4860/07 (Ex.1, tab 1) suspending jockey Husbands for 3 racing days.

10. There was conflicting testimony as to whether the interference could have cost QUIET JUNGLE a chance to finish second in the race. While Mr McMahon did not have anything in his notes to indicate as such, one of the Stewards reportedly had that comment in his notes. Mr. Kabel acknowledged that he would not likely have won the race but lost his chance to finish second. QUIET JUNGLE appeared to be running the slowest of the three horses at this juncture of the race with both Mr. Hettel and Mr. Casse arguing that the horse was backing up. While there was agreement that is what seemed to be happening it was also agreed one cannot be sure a horse will never regain its speed at this point in a race and pass the horses ahead of it.

11. The video replays showed contact between SEALY HILL and QUIET JUNGLE leaving the gate. It was agreed by all that it had no bearing on the outcome of the race and merely showed the type of contact that occurs in thoroughbred racing without any punitive action by the Stewards.

12. Mr. Kabel testified that as a result of the interference, he was forced to check his horse hard, alter his course, and in the process his horse lost momentum. This cost him, in his view, any chance to finish second.

13. Under cross-examination, Mr. Kabel testified that there was no contact between his horse and SEALY HILL and that the two horses did not clip heels. He confirmed that it was his belief that SEALY HILL had a history of lugging in and that it was why he did not move down to the unoccupied 1 path as that would be foolish on his part to move to where SEALY HILL was headed. He confirmed that in his view, Mr. Husbands did all he could do to keep his horse from coming in.

14. Mr. Hettel, who was qualified as an expert witness by the Panel, testified that he was provided an official copy of the video replay of the race by Ms. Murphy and that he viewed it “blind”, that is without being informed of the pertinent details of the incident. He confirmed that those who see a race live are in a better position to make judgement calls when reviewing it on a video replay, and those who are participants in the race have even a better perspective.

15. After reviewing the race about 25 times on the video replay, it was his view that there was no interference and that the call of interference was not necessary by the Stewards. He testified that he has seen other perceived interference calls that did not happen. They are caused when a fast running horse passes a substantially slower running horse, as was the case with SEALY HILL and QUIET JUNGLE.

16. As to the check by Mr. Kabel as SEALY HILL was passing him, he stated it occurred because Mr. Kabel thought he was going to be interfered with and it may have been an overreaction by him. If the horses were as close as Mr. Kabel claimed they would have clipped heels when he altered course with his horse, Mr. Hettel said. He stated that QUIET JUNGLE did not lose any momentum from SEALY HILL’s actions and that pulling the horse out had more to do with Mr. Kabel’s attempt to get his horse running again.

17. Jockey Husbands testified that he was aware of the horse’s tendency to come in and he did all he could do to keep his horse running straight. His position was SEALY HILL lugged in which means coming in versus ducking in which means an abrupt change within a few strides of the horse. The video replay, he indicated on reviewing it, showed him cocking SEALY HILL’s head out, switching his stick to his left hand as soon as he could coming around the turn and pulling hard on the right rein. If there was insufficient room between his horse and Mr. Kabel’s, he stated, that Mr. Kabel could not have altered course with his horse and the video clearly shows him doing just that.

18. Trainer Mark Casse testified that he watched the race from his regular position in his box in the grandstand via binoculars and was surprised to see the inquiry sign posted as he did not see anything wrong with the running of the race. He stated jockey Husbands did everything right as it relates to riding in the race, that there was no contact between his horse and QUIET JUNGLE or they would have clipped heels and thus there was no danger to Mr. Kabel. His testimony contradicted that of his jockey as it related to SEALY HILL having a history lugging in. His position is that she was unpredictable as her record showed.

Issue

19. The outcome of the hearing depends on two findings of fact:

a. did jockey Patrick Husbands move his horse to a part of the track that was not clear

b. did SEALY HILL interfere with, impede or bother QUIET JUNGLE

Decision

20. The decision was rendered on September 27, 2007, by separate ruling in response to a request from the appellants as the outcome could have an impact on Breeders’ Cup invitations. It read as follows:

21. Upon carefully reviewing the evidence, and upon hearing the submissions of Counsel for the Administration and Counsel for Mr. Husbands, the majority of the Panel grants the Appeal.

22. Upon carefully reviewing the evidence, and upon hearing the submissions of Counsel for the Administration and Counsel for Mr. Casse, the majority of the Panel grants the Appeal and directs that the order of finish of the race be restored to the original (pre-disqualification) order of finish of the race and the purse monies be distributed accordingly.

Reasons for Decision

23. The video replays, from all angles, clearly show SEALY HILL moving in from the 4 or 5 path to the 2 path at the top of the stretch around the 3/8^ths pole and Mr. Kabel checking his horse and altering course as Mr. Husbands and SEALY HILL passed him.

24. The video clearly shows that Mr. Kabel and his horse, QUIET JUNGLE, are moving the slowest during this portion of the race. Mr. Kabel admitted that he would not have won the race, that at best he could have finished second but with the speed of both SEALY HILL and STREET SOUNDS given this acknowledgement, his best finish place in reality was third where he finished.

25. Mr. Kabel had an option to move into the 1 path as he admitted but did not because he wrongfully assumed that SEALY HILL would move all the way down to the rail. His actions were based on a perception that the horse would act in a certain manner and not based on what actually occurred on the track that day.

26. Mr. Kabel or his horse was not in danger, there was no contact, there was no clipping of heels and he had room to alter the course of his horse, therefore there was sufficient clearance. SEALY HILL was simply running much faster than QUIET JUNGLE and therefore did not violate TB Rules 11.07 or 11. 09.1, that is, he did not interfere, impede or bother.

27. The issue of whether Mr. Kabel made an official claim of foul is not relevant to the issue. The Stewards under the Rules of Thoroughbred Racing clearly have the authority to post the inquiry sign on their own without having a claim of foul made from a participant. There was no contradictory testimony that the Stewards did not do just that.

DATED this 9^th day of October 2007.

____________________________

Rod Seiling

Chair

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

AND IN THE MATTER OF THE APPEAL OF

THOROUGHBRED JOCKEY PATRICK HUSBANDS

AND IN THE MATTER OF THE APPEAL

OF THOROUGHBRED TRAINER MARK CASSE

DISSENTING DECISION

1. Thoroughbred jockey Patrick Husbands appealed Stewards’ Ruling TB 4860/07 issued on July 2, 2007, wherein the horse SEALY HILL was disqualified from 1^st position and placed 3^rd for going in and interfering with QUIET JUNGLE during the stretch run of the 6^th race on July 1, 2007 at Woodbine Racetrack.

2. Thoroughbred Trainer Mark Casse appealed Stewards’ Ruling TB 4864/07 issued on July 2, 2007 wherein the horse SEALY HILL was disqualified from 1^st position and placed 3^rd for going in and interfering with QUIET JUNGLE during the stretch run of the 6^th race on July 1, 2007 at Woodbine Racetrack.

3. The Ontario Racing Commission Panel hearing the matter consisted of the Chair Rod Seiling and Commissioners Brenda Walker and Jane Garthson. The Panel convened on September 26, 2007. Patti Latimer appeared for the Administration and Dan McMahon appeared on behalf of Patrick Husbands and Mark Casse. The Panel confirmed with the parties that both appeals would be heard at the same time given that the matters in question arose at the same time and in the same race.

4. Upon carefully reviewing the evidence, upon hearing the submissions of Counsel for the Administration and Counsel for Mr. Husbands I, Brenda Walker, respectfully disagree with the majority decision.

Decision

5. Upon carefully reviewing the evidence, upon hearing the submissions of the Counsel for the Administration and Counsel for Mr. Casse, I respectfully disagree with the majority decision.

Issue

6. The outcome of this appeal depends on two findings of facts:

a. did the number 4 horse SEALY HILL move to a part of the track when it was not clear, and

b. did the number 4 horse SEALY HILL interfere with, impede or bother the number 3 horse QUIET JUNGLE.

Background

7. Evidence was heard from witnesses: Steward Wm. McMahon, jockey Todd Kabel, expert witness Bernard Hettel, jockey Patrick Husbands and Trainer Mark Casse.

The evidence was as follows:

8. Wm. McMahon testified that upon viewing the stretch run of the 6^th race, the inquiry sign was put up. Todd Kabel asked them to look at the stretch run. McMahon, Associate Stewards Russell Fernandes and Fenton Platts reviewed the tapes. Around the 3/16 and 1/8 poles, Todd Kabel, riding QUIET JUNGLE, had to check his horse and stand up in the stirrups when Patrick Husbands riding SEALY HILL on the outside in the 4 lane crossed over in front of QUIET JUNGLE who was in front running a length off the rail. They in turn placed the winner SEALY HILL from 1^st to 3^rd and placed QUIET JUNGLE from 3^rd to 2^nd.

9. Todd Kabel, an accomplished rider, confirmed that at the conclusion of the 6^th race he asked Patrick what he was doing and told him that he had to claim foul. He then told the Stewards to “take a look at the stretch run”. Mr. Kabel testified that he was bothered by the horse SEALY HILL and had to stand up in the stirrups, (check) draw his horse up and take her to the outside of SEALY HILL and that his horse QUIET JUNGLE lost momentum and was definitely affected. He did admit that there was no direct contact with Patrick Husbands’ horse and that Patrick had tried to straighten his horse SEALY HILL up.

10. Bernard Hettel, an expert witness for the defence, who is employed by Gulf Stream Park and has previous experience as a Steward, was sent a copy of the tapes and the stewards’ notes. He was asked to view the tapes. Mr. Hettel’s opinion was that it was an unnecessary call. He also said that the rules say you “may” not “shall” disqualify a horse or do a placing. He testified that real time video replays are better than slow motion as it distorts and that the jockeys have a better feel for the situation, also that an observer has a different perspective and more weight should be given to the participants. Mr. Hettel said that in his opinion, Todd Kabel overreacted, and if Mr. Husbands’ horse was that close they would have clipped heels.

11. Patrick Husbands, also an accomplished rider, gave testimony that his horse SEALY HILL was lugging in and he tried to keep her straight. SEALY HILL was going pretty fast when crossing over and he had switched his whip from his right hand to left to aid in keeping her straight. Patrick believes his horse was clear and that if Todd told the Stewards to take a look then Todd wasn’t sure if there was interference.

12. Trainer Mark Casse believes that nothing happened and was shocked to hear that there was an inquiry on his horse.

13. In the closing Mr. McMahon wanted us to believe that this was about the integrity of racing, that the best jockey, best horse won, that Kabel’s horse was going nowhere and the Stewards shouldn’t decide the outcome of a race, the horses should, and race within the rules.

Reasons for Decision

14. I agree with Mr. McMahon’s statement that the horses should race within the rules. Rules are written for us to follow and not to be overlooked just because the best horse won. I also agree with Bernard Hettel’s statement that the live viewing of the race gives you the best feel for the situation and that more weight should be given to the participants, namely the jockeys and the Stewards.

15. Upon our numerous viewing of the tapes from different camera shots (4) and listening to the evidence of the jockeys and Stewards and statements made by Mr. McMahon and Mr. Hettel, I agree with the Stewards’ decision that Rules 11.07 and 11.09.01 were broken. It was clear on the tapes that Todd Kabel stood up in the stirrups and checked his horse to avoid Patrick Husbands’ horse SEALY HILL. Rule 11.09.01 doesn’t say there has to be contact in order to be disqualified, only if a horse bothers another horse or Rule 11.07 when clear, a horse may be taken to any part of the track but if the horse swerves or is ridden to either side as to interfere with, intimidate or impede any other horse, such horse may be disqualified. It clearly shows on the tapes the horse SEALY HILL crossing over very quickly from the 4 lane to the rail. Safety and the welfare of the horse and the rider are also important. It should also be noted that in the rules whether a horse is the favorite or considered the best in the race has nothing to do with the decision to place a horse. It should be decided on whether or not the rule or rules were broken.

Dated this 9^th day of October 2007.

(original signed by)

___________________________

Brenda Walker

Commissioner