AND IN THE MATTER OF THE APPEAL OF DAVID COTEY

Thoroughbred Trainer David Cotey (“Cotey”) appealed the decision of the Ontario Racing Commission Industry Appeal Board to disallow the claim of foul lodged by Jockey Constant Montpellier following the 8^th race on September 14, 2008, at Woodbine Racetrack. The claim of foul by Jockey Montpellier alleged that his mount FOOLISH VOW had been interfered with by YOU’RE FUNNY during the stretch run.

On December 3, 2008, a Panel of the Ontario Racing Commission consisting of Chair Rod Seiling, Commissioner Brenda Walker and Commissioner David Gorman convened to hear the appeal.

Maureen Harquail appeared as Counsel for the Administration. Daniel McMahon appeared as Counsel for Cotey.

Upon hearing the evidence of Richard Grubb, Russell Fernandes, Fenton Platts, Constant Montpellier, Jonathan Jones and Peter Goodale and upon reviewing the exhibits filed, and upon hearing the submissions of Counsel for the Administration and Counsel for Cotey, the Panel allows the appeal in part and orders:

i. Stewards Grubb, Fernandes and Platt to conduct a hearing with the new evidence now available;

ii. Stewards Grubb, Fernandes and Platt will determine whether the contact between FOOLISH VOW and YOU’RE FUNNY had any material impact on the outcome of the race.

The Reasons for Decision form part of the transcript which is attached hereto.

DATED this 4^th day of December 2008.

BY ORDER OF THE COMMISSION

John L. Blakney

Executive Director

ONTARIO RACING COMMISSION

THOROUGHBRED HEARING

IN THE MATTER OF THE APPEAL AND REQUEST FOR HEARING OF DAVID COTEY

Held Before:

Rod Seiling, Chairman

D. Gorman, Commissioner

B. Walker, Commissioner

These are an excerpt of the proceedings in the above mentioned matter held before The Ontario Racing Commission, Re: DAVID COTEY, taken before Toronto Court Reporters, Suite 1410, 65 Queen Street West, Toronto, Ontario, at 10 Carlson Court, Suite 400, Mississauga, Ontario, on the 3rd day of December, 2008.

Appearances:

Maureen Harquail,

for the Ontario Racing Commission Administration

Dan McMahon,

for licensee Cotey

Hearing continued ...

MR. FERNANDES: All rise. This hearing before the Ontario Racing Commission is back in session.

MR. CHAIRMAN: Please be seated. After listening to the testimony and reviewing the evidence and submissions made the panel is of the opinion that the two horses FOOLISH VOW and YOU'RE FUNNY did make contact before the finish line in the 8th race at Woodbine Racetrack September 14th, 2008. The testimony of the three stewards was that because they were unable to determine whether the contact occurred prior to or after the finish line they had to deny the appeal of jockey Montpellier.

Based on the unchallenged testimony of Mr. Goodale that clearly shows that contact occurred before the finish line in the race the panel orders the Administration of the Commission to have the three stewards Mr. Grubb, Mr. Fernandes and Mr. Platts to conduct a hearing with the new evidence now available to them. It will be up to them to determine whether the contact had any material impact on the outcome of the race. Questions?

MS. HARQUAIL: No, sir.

MR. MCMAHON: No, I don't. I may have some later but not right now. I don't know how it will be brought about but I'm sure ‑‑

MR. CHAIRMAN: I think the Administration will be able to schedule a hearing. Horse racing is still being conducted, they are available, people are still around. There is time, people can make themselves available. We have all the evidence here and the CD is available so now they will be able to see for themselves and speak for themselves.

MR. FERNANDES: All rise.

CERTIFIED CORRECT:_________________________________

RAYMOND P. MACDONALD, B.A., CVR

Commissioner of Oaths

David Cotey v. Ontario Racing Commission, 2008 CanLII 89002

Case Summary

AND IN THE MATTER OF THE APPEAL OF DAVID COTEY