Ontario
Racing
Commission
TB
RULING NUMBER COM TB 005/2009
COMMISSION HEARING TORONTO, ONTARIO – APRIL 16, 2009
IN THE MATTER OF THE RACING COMMISSION ACT S.O. 2000, c.20;
AND IN THE MATTER OF AN APPEAL AND REQUEST FOR
HEARING OF JOHN CHARALAMBOUS
On April 8, 2009, the Stewards at Woodbine received a protest from John Charalambous (“Charalambous”) in respect to the manner in which the Claim Blank for the horse, Fight the Storm, was completed.
On April 11, 2009, the Stewards issued Ruling Number TB 5769/09 wherein the protest of Charalambous was denied in accordance with Rules 13.01.02, 13.02, 13.04.01 and 13.15 of the Rules of Thoroughbred Racing.
On April 12, 2009, Charalambous appealed Ruling Number TB 5769/09 to a Panel of the Ontario Racing Commission (“ORC”).
On April 16, 2009, a Panel of the ORC, comprised of Vice Chair Hon. James M. Donnelly, Commissioner David Gorman and Commissioner George Kelly, was convened to hear the appeal.
Jennifer Friedman appeared as counsel for the Administration. Charalambous attended the Hearing with James Lindover, owner of the horse, Fight the Storm, acting as his representative.
Upon hearing the testimony of Senior Steward Richard Grubb, Associate Steward Gunnar Lindberg, and ORC Licensed Owner/Trainer/Exercise Person Scott Fairlie, reviewing the exhibits filed, and upon hearing the closing submissions, the Panel denied the appeal.
The Panel’s Reasons for Decision is attached to this Ruling.
DATED at Toronto this 23rd day of April 2009.
BY ORDER OF THE COMMISSION
John L. Blakney
Executive Director
REASONS OR DECISION
James Lindover (“Lindover”) and John Charalambous, (“Charalambous”) are owner and trainer respectively of the horse, FIGHT THE STORM.
This appeal is in the name of Charalambous. Its carriage during the Hearing was by Lindover thereby allaying concern over Charalambous’ status to bring the proceeding.
Scott Fairlie (“Fairlie”) claimed the horse from the second race at Woodbine on April 4, 2009 for $20,000. Lindover and Charalambous protested the validity of the completed Claim Blank. The Stewards disallowed the protest and validated and processed the claim. This is the appeal from the Stewards’ decision.
The Issue
- The issue is a narrow one. Did the completed claim form comply with TB Rule 12.11 which provides:
“The following information must be correctly filled in on the Claim Blank
#5 the number of the race from which the horse is to be claimed”
The Evidence
- Fairlie claimed three horses on April 4, 2009 from the first two races at Woodbine, MASTER MANIPULATOR and FLASHY N CLASSY from Race #1 and FIGHT THE STORM from Race #2. His error was that he completed each of the claim forms indicating that the horse was being claimed from the first race. Fairlie noticed his error and corrected the FIGHT THE STORM claim form by superimposing in bold form over the 1st the numeral 2. He did not delete the letters “st” from “1st”.
The Stewards
- The Stewards compared the numerals on each of Fairlie’s claim forms and concluded:
the numeral designating the race from which FIGHT THE STORM was to be claimed was obviously 2.
the “st” was mere surplusage. It would be unnecessary to be inserted had the race been race #1. Its inclusion was of no consequence. Otherwise the claim complied with Rule 12.11. The protest was disallowed.
The Appeal
Fairlie’s evidence about correcting his error and then submitting the corrected claim to be processed was unchallenged. Accordingly there is clear, credible evidence of his intent to give proper notice that the claim was from Race 2. That intent is conveyed by the prominent numeral “2” in the appropriate space.
What then is the effect of failure to delete the letters “st”?
It is contended that the suffix “st” points toward the numeral as being “1” rather than “2”. That submission has no persuasive force when, as is the case, the number is clearly and obviously “2”.
Discussion
The disposition of this appeal is determined by referencing the purpose of the Rule and giving it a purposive interpretation. Clearly the Rule is designed to protect the integrity of the claiming process (re Huarte 1995 ORC D No. 18) Stewards must have accurate information on all matters listed in Rule 12.11. Thereby there will be no basis for error in the ensuing transfer of horse and funds.
The desired standard is clarity not perfection. The claim form is a daily work tool in the horse racing industry. It should be interpreted as such. The claiming process is not to be frustrated by imposing on horsemen standards of draftsmanship appropriate to creation of the Canadian Charter of Rights & Freedoms.
The objective is not to convert the horse racing community into a colony of quibbling pettifoggers. A uniform code of conduct of universal application is to be sought. Compliance with the Rule must be functional and so the information required by Rule 12.11 and echoed in the claim form must be correct on matters of substance. The purpose of that functional standard is to provide information to trigger a reliable claiming process.
Is ”the number of the race from which the horse is to be claimed” correctly filled in on the Claim Blank as required by Rule 12.11 of the Rules of Thoroughbred Racing?:
The intent was to claim from the second race.
The numeral depicted in the appropriate blank space on the form is “2”.
It is of no consequence that the designation does not carry the suffix “nd” so as to read “2nd”.
that suffix adds nothing to the information required to be disclosed.
- This sequence amply supports the finding of fact that the number of the race is correctly entered on the claiming blank.
Historical Standard
This approach distinguishing technical matters of form and matters of substance and imposing the correctness standard to the matters of substance dates back to 1995 (Huarte) and 1996(King). That rationale was correct then. So it remains.
In the Robert King decision, May 23, 2001, the Vice Chair of the ORC quoted with approval, passages from TB Ruling #4 1996 re Widenmaier as follows:
“If the form of the Claim Blank is filled out to cast any doubt upon any matter of substance then the Stewards ought to void the claim.”
and
“On the other hand, if there is a mistake on the claim form that does not go to substance or it is only technical in nature, that should not in our view void the claim.”
and
“We realize that with this ruling we are asking our Stewards to exercise some discretion with regard to these claims. We do to that for a purpose. Stewards are in a perfectly good position to determine whether an error goes to substance or whether an error is technical.
- That longstanding approach to the application of Rule 12.11 is endorsed by this Panel. In light of that consistent historical interpretation, this appeal verges on frivolous status.
Disposition
The plain meaning on the face of the claim form is to claim a horse from the second race. There is neither prejudice nor unfairness to the Appellants. It would be quite wrong to void this claim on an inconsequential claimed technicality. A purposive interpretation of the Rule requires this as the proper result.
The Appeal must fail.
An Order will issue accordingly.
DATED this 23rd day of April 2009.
James M. Donnelly
Vice Chair