RULING NUMBER COM SB 029/2008
COMMISSION HEARING TORONTO, ONTARIO – OCTOBER 22, 2008
IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF THE APPEAL OF
STANDARDBRED LICENSEE MICHAEL VANDERKEMP
Standardbred driver Michael Vanderkemp appealed the Judges decision that the horse CHANGING GEARS (driven by Randy Waples) did not interfere with the horse SOUTHWIND SWALLOW (driven by Michael Vanderkemp) in the 4th race at Woodbine Racetrack on October 20, 2008.
On October 23, 2008, a Panel of the Ontario Racing Commission consisting of Commissioner David Gorman convened to hear the appeal.
Maureen Harquail appeared as Counsel for the Administration. Gerald Sternberg and Sidney Silverman appeared as Counsel for Michael Vanderkemp.
Upon hearing the evidence of Judge Tom Miller, Randy Waples and Michael Vanderkemp and upon reviewing the exhibits filed and upon reviewing the film and upon hearing the submissions of Counsel for the Administration and Counsel for Michael Vanderkemp, the Panel dismissed the appeal.
The Panel’s decision is attached to this Ruling.
DATED in Toronto this 27th day of October 2008.
BY ORDER OF THE COMMISSION
John L. Blakney
Executive Director
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2 ONTARIO RACING COMMISSION
STANDARDBRED HEARING
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IN THE MATTER OF THE Racing Commission Act,
4 2000, S.O. 2000, c 20
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-and-
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IN THE MATTER OF: Standardbred Licensee:
7 MICHAEL VANDERKEMP
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----------DECISION----------
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12 BEFORE: Dave Gorman Commissioner
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Hearing Conducted in the Hearing Room
16 of the Ontario Racing Commission, 10 Carlson Court,
Toronto, Ontario, M9W 6L2, on the 22nd day of
17 October, 2008.
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APPEARANCES:
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Maureen Harquail Counsel for the
22 Administration
23 Gerald Sternberg Counsel for the Appellant
Sidney Silverman
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Mike Wilson Assistant Supervisor,
25 Standardbred Racing
TORONTO COURT REPORTERS - TORONTO - ONTARIO
1 ----- UPON RESUMING:
2 COMMISSIONER GORMAN: Please be seated.
3 Here's my Decision; the Decision of this Panel.
4 Standardbred Licensee Mike Vanderkemp
5 is appealing a Ruling of the Judges at Woodbine
6 from the 4th race on October the 20th, 2008 by
7 which the order of finish was allowed to stand
8 following a Judges' Enquiry.
9 Today's Hearing was held on an
10 emergency basis due to the fact that the
11 participants in this Hearing are involved in the
12 Ontario Sires Stakes races which are currently
13 underway and for which the Gold Final for 3
14 year-old pacing fillies will be raced on Monday
15 October 27, 2008 at Woodbine.
16 This Decision will impact upon the
17 eligibility of two horses to enter the final.
18 Pending this decision, the draw for that race is
19 being held up.
20 The aggrieved horse is Southwind
21 Swallow, driven by Michael Vanderkemp in the 4th
22 race at Woodbine, October 20, 2008. The race
23 was an OSS Gold elimination. The filly
24 finished 6th and therefore does not qualify for
25 the final. Mr. Vanderkemp's appeal is that his
TORONTO COURT REPORTERS - TORONTO - ONTARIO
1 filly was interfered with in the home stretch.
2 The filly allegedly interfering with
3 Southwind Swallow; a filly by the name of
4 Changing Gears and driven by Randy Waples,
5 finished 4th and therefore does qualify for the
6 final.
7 Counsel for the Administration; Ms
8 Maureen Harquail, submits that driver Waples did
9 not interfere with driver Vanderkemp. Her
10 witnesses; Presiding Judge Miller and driver
11 Randy Waples, contend that Mr. Vanderkemp
12 attempted to drive through a space where not
13 enough space existed.
14 Counsel for Mr. Vanderkemp; Mr. Gerald
15 Sternberg, submits that there was enough room,
16 that Mr. Waples moved in towards the rail and
17 closed the hole causing a brief incident in
18 mid-stretch which deprived his client of a
19 better placing and thus a spot in the Gold final
20 on Monday.
21 Mr. Sternberg referenced Rule
22 22.05.01(a) and (b) of the Rules of Standardbred
23 Racing and called as his witness driver Michael
24 Vanderkemp. That rule requires that, among
25 other things, a driver not change course in such
TORONTO COURT REPORTERS - TORONTO - ONTARIO
1 a manner as to compel a horse to shorten its
2 stride or cause another driver to change course
3 and it goes on at some length.
4 A case such as this is somewhat
5 difficult because ultimately it turns on
6 judgment and not on cold hard facts. We have
7 the benefit of approximately 90 minutes of
8 watching tapes, hearing explanations and
9 guessing at various differences in distance
10 between hard so see sulky wheels and pylons
11 which do not align in a perfectly straight
12 line. Judges at the race track are not
13 afforded this luxury of time.
14 In this case, the credibility of the
15 witnesses is not an issue. In particular,
16 drivers Waples and Vanderkemp clearly and
17 sincerely believe in their respective positions
18 and the Panel takes no issue with either one.
19 The Panel finds, though, that there is
20 no clear and convincing evidence that a foul was
21 committed. In order for the appeal to be
22 upheld there would have to be a flagrant case of
23 interference and not just a case of different
24 judgments about what did or did not happen.
25 Therefore, the original Decision of
TORONTO COURT REPORTERS - TORONTO - ONTARIO
1 the Judges, to leave intact the order of finish,
2 is upheld and the appeal is dismissed. Written
3 reasons will follow in due course.
4 I thank you all for your time.
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TORONTO COURT REPORTERS - TORONTO - ONTARIO
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5 I hereby certify the foregoing to be
6 a true and accurate transcript as taken
7 by me to the best of my skill and
8 ability.
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11 _____________________________
12 Christine Gilmour, B.A.,C.S.R.
13 Toronto Court Reporters
14 1410 - 65 Queen Street West, Box 69
15 Toronto, Ontario M5H 2M5
16 (416) 364-2065
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TORONTO COURT REPORTERS - TORONTO - ONTARIO
RULING NUMBER COM SB 029/2008
COMMISSION HEARING TORONTO, ONTARIO – OCTOBER 22, 2008
REASONS FOR DECISION
A Panel of three judges, including Presiding Judge, Tom Miller, a veteran judge with 12 years’ experience, put up the “inquiry” sign shortly after the conclusion of the race in question. The purpose was to review a brief incident in mid-stretch.
Upon review of the videotape, the judges determined that the horses involved in the incident were SOUTHWIND SWALLOW, driven by Michael Vanderkemp and CHANGING GEARS, driven by Randy Waples.
Upon further review, the judges unanimously agreed that no infraction had been committed and that the order of finish was allowed to stand.
Aiding the judges in their determination was the fact that the “all clear” had been received from the starter, meaning that none of the drivers in the race had lodged an objection. According to Rule 22.06 of the Rules of Standardbred Racing 2008 (Ontario Racing Commission), should a driver wish to lodge an objection, he/she “shall make this known to the nearest patrol judge …” which is usually the starter. Drivers are, or should be, aware of this procedure.
For the incident in question, all witnesses agreed that there had never been any contact between the two horses, or their sulkies. Nor did SOUTHWIND SWALLOW ever draw even or pull ahead of CHANGING GEARS.
In racing, as in most sports, the officials and participants are called upon frequently to make decisions based on their best judgment.
In this case, driver Waples’ judgment was to keep closed the small hole between him and the pylons. Driver Vanderkemp’s judgment was to try to get through that hole. Each was doing his best to ensure a top five finish and thus a spot in the Ontario Sires Stakes Gold Final to be held a few days later. The battle for the third through sixth positions was close – less than a half-length separated those four horses.
The three judges are also frequently called upon to make a decision based on their best judgment, where the actual facts are difficult, if not impossible to discern.
In this case, there was much discussion about the width of a sulky (it varies by several inches) and how far from the pylons the wheels were at various stages of the stretch run (varies quite a bit, depending upon who was making the judgment). In the end, it was impossible to determine the actual distance.
In the absence of any truly convincing evidence to the contrary, there is no reason at all for this Panel to amend the decision of the judges. Their decision is allowed to stand.
DATED this 27th day of October 2008.
David Gorman
Commissioner