RULING NUMBER COM TB 002/2008
COMMISSION HEARING TORONTO, ONTARIO – JANUARY 10, 2008 & MA
IN THE MATTER OF THE RACING COMMISSION ACT S.O. 2000, c.20;
AND IN THE MATTER IN THE APPEAL OF
THOROUGHBRED LICENSEE PATRICK HUSBANDS
Thoroughbred jockey Patrick Husbands appealed the decision of the Industry Appeal Board dated October 3, 2007, amended October 10, 2007, wherein the Industry Appeal Board:
(a) allowed his appeal from Stewards' Ruling Number TB 5015/2007, issued on August 24, 2007, suspending him for 3 days for violation of rule 11.09.03 of the Rules of Thoroughbred Racing, 2005 for coming in with his mount XALER and causing interference on MONEY PLAYER rounding the far turn during the running of the 3rd race at Woodbine Racetrack on August 19, 2007, and
(b) left undisturbed the Stewards' disqualification of XALER.
The Ontario Racing Commission Panel hearing the matter consisted of Vice-Chair Hon. James M. Donnelly and Commissioners Bernard Brennan, DVM, and Brenda Walker. The Panel convened on November 14, 2007, January 10, 2008 and May 14, 2008.
Katherine Hensel and Aaron Dantowitz appeared for the Administration, Daniel McMahon appeared for Mr. Husbands, and Frank Di Giulio, Jr. appeared on his own behalf.
On hearing the testimony of Steward William McMahon, Brent Stone, Jacques Lauzon, Patrick Husbands, and Richard Dos Ramos, and on reviewing the videotape of the race and the Exhibits filed, and on hearing the submissions of counsel for the Administration, counsel for Mr. Husbands, and Frank Di Giulio, Jr., the Panel allowed Mr. Husbands' appeal and ordered that the original order of finish be restored.
The Panel's written reasons for decision are attached.
DATED this 22nd day of May 2008.
BY ORDER OF THE COMMISSION
John L. Blakney
Executive Director
REASONS FOR DECISION
This hearing originally came forward on November 14, 2007. Katherine Hensel appeared for the Administration. Dan McMahon appeared as counsel for Patrick Husbands and for Robert Caporella, owner of the Horse XALER.
The relief claimed would deprive Frank Di Giulio, Jr., owner of the horse HELLO CITY of the winning purse. An adjournment was ordered to enable service on Mr. Di Giulio, Jr.
The return date was January 10, 2008. Counsel appeared as follows:
Aaron Dantowitz for the Administration
Dan McMahon for Husbands and Caporella
Mr. Di Giulio, Jr. appeared self-represented by choice and aware of his right to counsel.
- The evidence proceeded but was not concluded. The Administration sought and received an adjournment to call evidence by Jack Lauzon, jockey for MONEY PLAYER, the horse involved in the racing incident with Mr. Husbands’ horse, XALER. Woodbine being in off-season, Mr. Lauzon was said to be in Louisiana. The matter finally came back for continuation and disposition on this date.
The Racing Incident
- Third race, Woodbine, August 19, 2007. Jockey Patrick Husbands was on lead with his mount XALER. As the horses rounded the far turn, jockey Jack Lauzon on MONEY PLAYER, attempted to take the lead by passing on the inside.
The Stewards’ Decision
Jockey Husbands suspended three days for coming in – interference.
Xaler disqualified from first position, placed 7th behind MONEY PLAYER with which he had interfered.
HELLO CITY, which finished second, was moved up and became the winner.
- Patrick Husbands appealed to the Industry Appeal Board “from such ruling” alleging “I was not the cause of the interference, the rider of the #1 horse (MONEY PLAYER) was the author of his own misfortune.”
The Industry Appeal Board Decision
Reversed jockey Husbands’ three-day suspension.
Reported in written reasons – “The rider of the outside horse XALER (Husbands) did not in the view of the Panel, do anything to contribute to the episode.”
Made no express disposition relating to the Stewards’ disqualification of XALER from first position to seventh and did not deal with entitlement to the purse money.
- Brent Stone, Director of Thoroughbred Racing, noticed and enquired about that deficiency. Dr. Fritz, Chairman of the Industry Appeal Board Panel, was quoted by Mr. Stone as advising that the Panel heard representations on that issue, considered it and decided not to interfere with the Stewards’ placement. Dr. Fritz then endorsed a supplement on the Industry Appeal Board report as follows:
“The order of finish will remain as set out by the Stewards - amended Oct 10/07.”
Dr. Fritz initialed the supplement. No reasons were given in relation to the amendment.
The matter was brought before this Panel in relation to the second phase of the Stewards’ Ruling, that is, XALER was disqualified from first position and placed 7th.
The Industry Appeal Board decision is silent on purse entitlement. The Administration position is that inferentially, that silence bespeaks affirmation of the Stewards’ Ruling and so HELLO CITY’S owner is entitled to that winner’s share of the purse. Patrick Husbands’ position is that notwithstanding silence on the purse issue, the Industry Appeal Board found:
“The rider of the outside horse, XALER, did not, in the view of the Panel, do anything to contribute to the episode.”
Accordingly, it is contended on behalf of the owner of XALER, that Mr. Husbands having done nothing wrong, it follows automatically that XALER should be restored to first position and thereby his owner is entitled to the winner’s share of the $27,300.00 total purse.
William McMahon, one of the presiding Stewards, testified on January 10, 2008 that the Stewards’ conclusion was:
Lauzon had room when he started his advance.
He was ninety per cent through when XALER came in thereby causing interference.
His cross-examination related in part to the circumstances surrounding the playing of a videotape of the race during the course of the Stewards’ Hearing.
The racing incident occurred on Sunday. On the following Friday, the Stewards played the tapes in the presence of jockeys Husbands and Lauzon. Other jockeys were present, which in the context of open, public and transparent procedure, was unobjectionable.
However, during the course of the hearing, those other jockeys were permitted to discuss the issue and offer individual or collective opinions. The point of the cross-examination was to elicit from Steward McMahon that the verdict of that informal jury of peers was unanimous rejection of Mr. Lauzon’s riding conduct. Steward McMahon acknowledged that informal verdict.
That verdict is of interest in that it discloses a fundamental procedural flaw. That third party conclusion has no evidentiary value, is totally irrelevant and so must be disregarded. Those jockeys were spectators and no more. They had no status as judges, jurors or witnesses.
Henceforth it may be sound policy during hearings to impose the courtesy of silent non-participation upon spectators. Their status should only be elevated to that of witness if:
They are called as a witness by one of the parties (0r possibly on a rare occasion by the Panel).
They are sworn or affirmed which in turn is accepted as an indicator of truthfulness.
If opinion evidence is sought, upon being qualified as competent for that purpose.
And of vital importance, they are then subject to right of cross-examination by parties adverse in interest.
Steward McMahon’s cross-examination by counsel McMahon, sought confirmation that at the Stewards’ Hearing, Richard Dos Ramos testified as a representative of the Jockey’s Guild. That Mr. Dos Ramos expressed disapproval of Mr. Lauzon’s riding tactic of attempting to take the lead on the inside coming into the turn with the obvious attendant risks of “coming in” or a “change of lead” was conceded by Steward McMahon.
The informality of the administrative tribunal and the broad admissibility provision of S15 of the Statutory Powers Procedure Act enabled this evidence elicited in cross-examination to come forward in hearsay manner. The persuasive force of the assertion attributed to Mr. Dos Ramos is abated by the hearsay element and by lack of cross-examination at this stage. Those deficiencies were cured by having Mr. Dos Ramos testify on the adjourned date, May 14.
Jockey Lauzon originally made a claim of foul against jockey Husbands. At the Stewards’ Hearing, he recanted and cast blame upon himself for the incident. In consequence, he was suspended by the Stewards for three days for giving conflicting statements. Whether that transfer of culpability by Mr. Lauzon was influenced by collective peer rejection during the viewing of the videotape or by a change of heart induced by the content of the tape or by some unknown factor is an exercise in conjecture.
Steward McMahon was cross-examined about whether there was inconsistency in the two findings by the Industry Appeal Board:
On the one hand finding jockey Husbands blameless;
On the other hand, failing to restore his horse to the winning position.
His response was that a finding of no fault by the jockey does not automatically call for restoration of his mount’s placing. The underlying rationale is that interference, not fault, governs the placing. Breach of the rules by the jockey triggers the suspension issue - Rule 11.09.01, Rule 11.09.02, Rule 11.09.03, Rule 11.07.
Turning to this Panel’s responsibility. Section 7, Racing Commission Act 2000 provides authority:
“To hold hearings relating to the carrying out of its objects or powers.”
Those hearings are commonly referenced as “appeals” from prior decisions made by Stewards or Judges, Industry Appeal Boards or the Executive Director. Persons considering themselves to be aggrieved by a decision under such delegated authority have a right to a hearing by the Commission - Section 11(7).
The section references a “hearing” not an “appeal”. In consequence, such hearings proceed “de novo” in the sense that the Commission hears evidence and submissions and decides on that basis. The matters do not come to the Commission on the basis of the record created by the lower tribunal. The Commission does not decide the correctness or otherwise of the decision based on that earlier record.
The purpose underlying the de novo procedure is to ensure procedural fairness and natural justice.
Since the hearing proceeds de novo, both suspension and purse entitlement remain to be decided on the evidence before this Panel. The validity of that conclusion is supported by the fact that the two issues may be inter-related. In that event, this Panel ought not to be bound by a finding on one issue by a lower tribunal based on a different record.
Mr. Di Giulio, Jr. expressed concern over his horse being:
Deprived of opportunity to race in a class - non-winners of two races.
Then the winner’s share of the purse being taken from him, that being the race that bumped him up a class.
Such a result would be unfortunate but the matter stands to be decided on the rules and on the racing conduct not on the equities of the “down stream” or after the fact consequences.
Jack Lauzon, on MONEY PLAYER, repeatedly described his attempt to move up on the inside as the horses came into the turn as “not a good situation”. He admitted after the race that he had made a big mistake. Richard Dos Ramos, a jockey with 28 years’ experience, testified that there is an unwritten rule not to move up on the inside at a turn because the leading horse will be switching from a left to right lead with a tendency to bear or drop in.
Patrick Husbands, on XALER, testified that he had his horse well in hand with ample reserve and had no need to “drop in on Jacko.” He described his horse being bumped from behind but did not fully realize what had happened until after the race.
Mr. Lauzon’s vacillations on the fault issue render reliance on his testimony perilous. Immediately following the race, he attributed fault to Mr. Husbands as evidenced by his claim of foul. At the Stewards’ hearing, he attributed fault to himself as evidenced by his suspension for inconsistent statements. On this hearing, he apportioned liability between himself and Mr. Husbands with the greater culpability attributed to Mr. Husbands. In some non-specific way, he felt that Mr. Husbands could have done more to avoid the incident.
On Mr. Husbands’ testimony, the contact between the two horses resembled what is known in the negligence motor vehicle trade as a “rear end collision” with the shoulder of Mr. Lauzon’s mount making first contact with the hind quarter of Mr. Husbands’ mount.
Mr. Lauzon had been closing steadily. There was room on a racing lane between Mr. Husbands’ mount and the rail as Mr. Lauzon started his attempt to pass on the straightaway of the backstretch. However, the far turn loomed immediately ahead. The foreseeable and probable result was that the lane would disappear or close as the lead horse went into the turn and so it did. Mr. Lauzon’s aggressive and dangerous decision to pass on the inside going into the turn ended with predictable result, the bumping of the two horses which resulted in Mr. Lauzon losing his stirrups, bouncing about and almost going down.
The evidence clearly demonstrates, and the Panel finds, that the horses were into the turn when the bumping occurred and MONEY PLAYER had yet to establish an inside racing path. At that stage the foreseeable became reality as with the change of leads, XALER did drop in.
The Panel finds, as did the Industry Appeal Board, that there was no breach of racing rules by Mr. Husbands (specifically Rule 11.09.03 as contended by the Administration).
The Administration conceded in the course of argument that absent violation by Mr. Husbands, the original placing should be restored. It is so ordered.
Counsel for Mr. Husbands made a request for costs. The Administration responded by querying jurisdiction. That determination may stand over for another day since there is no factual basis requiring censure in the form of costs against the Administration.
Dated this 22nd day of May 2008.
James M. Donnelly
Vice Chair