John Pentland v. Administration, 2007 CanLII 86979

REASONS FOR DECISION

Standardbred owner/trainer, John Pentland appealed Judges Ruling Number SB 36498 issued May 25, 2007 whereby pursuant to Rule 22.09, the Judges placed the horse JANS LUCK 6^th from 1^st position in the 8^th race on May 25, 2007 at Western Fair Raceway.
The race was a Gold Series Elimination for three-year-old filly pacers with a starting fee of $750 and a purse of $58,625.
The appeal was expedited and proceeded Tuesday, May 29 because the draw for the Gold Series Final for $130,000 on Friday, June 1^st was held in abeyance pending eligibility determination following the result of the appeal.
Aaron Dantowitz was counsel for the Administration. John Pentland who advised that he had taken legal advice and by choice was proceeding self-represented was assisted by his wife Natalie
Upon request by counsel for the Administration and with Mr. Pentland’s concurrence, an order issued excluding witnesses. The appeal proceeded as a de novo hearing.
Presiding Judge Paul Cass, with 28 years experience as a Commission Judge, described his observation from the Judges’ position atop the grandstand. As the horses came off the top turn approaching the starting gate as it straightened up for the run up to the starting line, the #1 horse JANS LUCK, driven by Mike Saftic, veered to its right into the path of the #2 horse, MICHELLENAS ANGEL, driven by Mark MacDonald. The Judges immediately instructed the timer to post the inquiry sign.
Following the race, the Judges viewed video replays taken from different vantage points. They also conferred with starter, Ken Sastaunik who confirmed that from his position on the mobile starting gate he had viewed the incident. He explained that in his judgement there had been no interference. The incident did not affect the result of the race so he did not direct a re-call and continued with his starting protocol.
The Judges also interviewed drivers MacDonald and Saftic. In answer to inquiry, MacDonald stated that the starting gate “came back and interfered a little bit”. Mr. Saftic reported that Mr. McDonald told him there had been no interference with the start.
The Judges concluded that contact between the race bikes caused interference by impeding MICHELLEANAS ANGEL and depriving it of a fair start. In consequence, JANS LUCK which won the race was disqualified and placed 6^th behind MICHELLEANAS ANGEL which finished 5^TH (Rule 22.09). The Judges directed a refund on MICHELLEANAS ANGEL. No driver penalty was imposed as the incident was deemed by the Judges to have been the fault of the horse.
On the appeal, Judge Cass testified that he observed the wheel of JANS LUCK’S race bike go into the legs of MICHELLEANAS ANGEL and that Mr. MacDonald then had to “grab” his horse.
Gary Keays, a Commission Judge with 9 years experience in Ontario and 5 years in Manitoba, gave evidence reporting on telephone interviews with the two drivers.
Compelling reasons firstly on principle and secondly on the evidence require that the disqualification ruling cannot stand.
On Principle - In re-examination by Administration Counsel, Judge Cass testified that, “we (the Judges) always discount what the drivers say and go exclusively by what we saw.”
Such a preconceived dismissal of the testimony of drivers as a class constitutes a denial of procedural fairness and natural justice. The adjudicator must come to the hearing with an open unbiased mind.
Every witness is entitled to have his/her evidence assessed for credibility and reliability according to its merit in the context of the entire evidence. Factors for consideration may include such as:

Internal consistency of the witness’ testimony.
External consistency (with other evidence which is accepted).
Any personal interest in the proceeding (impartiality).
Opportunity to observe, ability to recall and to adequately recount.
Experience or expertise in relation to the issue.
The demonstrated character or reputation of the witness.
The witness’ presentation before the judges or Panel - responsiveness to questions, evasion, argumentative, candour, verbal fencing, advocating a certain result and the like.

The blanket rejection of testimony as described by Judge Cass was based on his perception that members of the drivers’ colony work together daily with a “give and take” attitude similar to a code of silence.
If such a perception is supported by the evidence, then this would validly be one of the many credibility factors for consideration and perhaps a powerful factor. The error is in the preconceived blanket dismissal of all drivers’ testimony. This exclusionary mindset is reminiscent of the posting on 19^th century Boston construction sites of the letters N.I.N.A. That caveat was based on a perception of the Irish as drunken brawlers. The acronym in extended from translates to “No Irish Need Apply”.
Before turning to the evidentiary reasons why the disqualification cannot stand it may be well to sound two cautionary notes.

Judges who initiate the inquiry (as opposed to responding to a protest by some interested party) must maintain impartiality. They must not become involved in defending or proving their initial perception.

Panel members on appeal - The peril is the temptation to become self-proclaimed instant experts in a highly specialized field. Their experience is in the assessment of evidence, oral documentary and demonstrative including video replays. Their proper function is restricted to that assessment.

The Evidence -The evidentiary basis for reversing the disqualification is found in the congruence of evidence of the two drivers and the starter. All are experienced. All were in immediate proximity to the event. Their evidence is mutually supportive, compelling and dispositive. On a fair assessment of all the evidence and mindful of the standard by proof on a balance of probabilities, the conclusion is unassailable. There was ample opportunity in terms of time, distance and the brief contact for MICHELLEANAS ANGEL to go to the starting gate in the normal manner following the incident. That independent of the incident, the filly was bad-gaited is conclusively supported by –

(1) the evidence of starter Ken Sastaunik who cannot be said to be a member of the drivers’ colony

(2) the evidence of Mark McDonald in relation to the filly’s gait scoring before the race, accelerating to come up to the gate and during the race

(3) the evidence of Mike Saftic

(4) the evidence of breaks in her last two race starts

(5) her placement following this race “Judges’ List Breaks”

Judge Cass’ evidence on two important assertions not only lacked independent support but was directly contradicted as follows:

The evidence of MacDonald and Saftic was contra the race bike wheel having gone into the filly’s legs. Nor is this seen on the video.
MacDonald denied having to “grab” his horse because of the contact. Nor can such a grab be identified on the video.

Determination of the