Ontario Racing Commission
RULING NUMBER COM TB 011/2009
COMMISSION HEARING TORONTO, ONTARIO – OCTOBER 7, 2009
IN THE MATTER OF THE RACING COMMISSION ACT S.O. 2000, c.20;
AND IN THE MATTER IN THE APPEAL AND REQUEST FOR HEARING OF WILLIAM MCGIRR
On August 15, 2009, TWILIGHT AFFAIR completed a workout as the horse was a thirty-day horse that required a workout to be eligible to race.
On August 16, 2009, the Stewards at Fort Erie held a Hearing further to a complaint regarding the workout morning on August 15, 2009.
On August 17, 2009, further to the Hearing, the Stewards issued Ruling Number TB 6016/09 to TWILIGHT AFFAIR wherein the horse was placed on the Stewards’ list and rendered ineligible to enter or race in Ontario pending the outcome of the ORC investigation in connection with the August 15, 2009 workout (which included being scratched from the 2nd race at Fort Erie on August 17, 2009).
On August 31, 2009, the Stewards held a Hearing.
On August 31, 2009, the Stewards issued Ruling Number TB 6052/09 wherein TWILIGHT AFFAIR was removed from the Stewards’ List.
On September 6, 2009, the Stewards issued Ruling Number TB 6067/09 wherein William McGirr (“McGirr”) was suspended for thirty days (September 9 - October 8, 2009 inclusive) in accordance with Rules 15.09.01 and 16.13 of the Rules of Thoroughbred Racing.
On September 7, 2009, McGirr filed a Notice of Appeal.
On September 10, 2009, the Executive Director of the ORC issued Ruling Number T.B. ADMIN 21/2009 wherein he stayed McGirr’s penalty until October 7, 2009.
On October 7, 2009, a Panel of the Ontario Racing Commission, comprised of Vice Chair Hon. James M. Donnelly, Commissioner Bernard Brennan, DVM, and Commissioner Brenda Walker, was convened to hear the Appeal.
Jennifer Friedman appeared as counsel for the Administration. Dan McMahon represented McGirr.
Upon hearing the testimony of Richard Grubb, Brian Newton, Rick Grant, Marianne Mullin, Wayne Adams, Michael Newell, William Armata, Steve Lym, Daniel Smith, Jason Romaniuk, Allison Reid, Dave Regan, Tom Goslin, Nick Gonzales, Bud Williams, Drew Cady and McGirr, reviewing the exhibits filed, and upon considering the written submissions, the Panel ruled as follows:
i) The appeal is allowed, the suspension is rescinded.
ii) It is noted in passing that the official time for the workout, being subject to substantial challenge, the Stewards were correct in scratching TWILIGHT AFFAIR as ineligible to race on August 17th.
The Panel’s Reasons for Decision is attached to this Ruling.
DATED at Toronto this 30th day of October 2009.
BY ORDER OF THE COMMISSION
John L. Blakney
Executive Director
REASONS FOR DECISION
This Appeal proceeded October 7, 2009. The Decision was reserved and is now delivered with Reasons.
This is an Appeal by Official Clocker William McGirr (McGirr) from TB Ruling 6067/2009 suspending him for 30 days pursuant to TB Rules 15.09.01 and 16.13. The Stewards held that:
"It was determined by the Stewards that Mr. McGirr did in fact alter a 30-day workout time for the horse TWILIGHT AFFAIR making it eligible to race on August 17, 2009."
On September 7, 2009, McGirr filed a Notice of Appeal.
On September 10th, 2009 the Executive Director stayed McGirr's penalty until October 7th, 2009. The Panel further extended the Stay pending release of this Decision.
The evidence supports the following findings of fact. The horse TWILIGHT AFFAIR was entered to race in the second race at Fort Erie on August 17th, 2009. Under the rules of racing, TWILIGHT AFFAIR required a workout to remain eligible (a 30-day horse). On August 15th, 2009, Wayne Adams, the Assistant Trainer of TWILIGHT AFFAIR, arranged for an official workout for 3/8ths of a mile for which the maximum time allowed is 40.4 seconds (Rule 6.30.03). William McGirr was on duty as Official Clocker.
TWILIGHT AFFAIR worked the three furlongs.
McGirr called the GAP person, Marianne Mullin, and advised the horse did not make the time.
Mullin entered the notation N/T (no time) for TWILIGHT AFFAIR on her unofficial list of the workout horses and so advised assistant trainer Adams who reported to trainer William Armata, who then contacted McGirr.
McGirr told Armata that he was the only Clocker on duty. Three horses were working out simultaneously and he was clocking all of them. McGirr stated that he started his stopwatch prematurely for TWILIGHT AFFAIR'S workout, possibly two or three lengths before the horse hit the 3/8th pole. He clocked the workout in 41 seconds and one fifth, two fifths of a second slower than the maximum allowable time. In consequence of his error, he had made the appropriate correction to 40.4 before speaking to Armata.
McGirr reported the correction Mullin. She struck out the notation "no time" and replaced it with 40.4 seconds. This was processed and duly recorded as the official time. Thereby the horse was eligible to race two days later.
The clocking discrepancy was reported to a presiding Steward. In consequence the horse was scratched from the August 17th race and placed on the Steward's list pending investigation.
These proceedings were precipitated by a licensee loitering around the GAP where he had no right to be. That licensee overheard the report of “no time” from Mullin to Adams. That person had no entitlement to the workout information at that stage. His eavesdropping and subsequent actions are irrelevant to determination of the propriety of McGirr’s conduct.
Clocking issues rarely find their way to Hearings by Commission Panels. This incident provided rare insight into the Clocker’s procedures. Timing could be precise (as in standardbred qualifiers with electronic