RULING NUMBER COM TB 016/2009

COMMISSION HEARING TORONTO, ONTARIO – NOVEMBER 25, 2009

IN THE MATTER OF THE RACING COMMISSION ACT S.O. 2000, c.20;

IN THE MATTER OF THE APPEAL AND REQUEST FOR HEARING

OF EURICO DA SILVA

On April 12, 2009, Eurico Rosa da Silva (“DA SILVA”) rode the horse, Wild Tepu, in the 5th race at Woodbine and finished 3rd.

Following a Stewards’ inquiry, Wild Tepu was disqualified from 3rd to 4th for interference with the #2 horse, Fiesty Clyde, ridden by Emile Ramsammy.

On April 17, 2009, the Stewards issued Ruling Number TB 5773/09 wherein DA SILVA was suspended for “three racing days, April 24 through April 26, 2009 inclusive for coming in with his mount ‘Wild Tepu’ and interfering with ‘Fiesty Clyde’ during the stretch run of the fifth race on April 12, 2009”, in accordance with Rules 9.14.01, 9.14.02, 9.14.03, 11.07, 11.09.01, 11.09.03, 11.09.05, 11.12 and 11.14 of the Rules of Thoroughbred Racing.

On April 19, 2009, DA SILVA filed a Notice of Appeal.

On April 19, 2009, the Supervisor issued Ruling Number TB 5774/09 wherein DA SILVA was granted a stay of Ruling TB 5773/09 until his appeal is heard.

On August 26, 2009, the Thoroughbred Division Ontario Racing Industry Board of Appeal held a Hearing in respect to DA SILVA. The Board of Appeal denied the appeal.

On August 27, 2009, the Stewards issued Ruling Number TB 6035/09 in respect to the decision of the Board of Appeal.

On August 28, 2009, DA SILVA further appealed to a Panel of the Ontario Racing Commission (the “ORC”).

On August 28, 2009, the Manager of Thoroughbred Racing issued Ruling Number TB 6039/09 wherein DA SILVA was granted a stay of his penalty until his appeal is heard by a Panel of the ORC.

On November 25, 2009, a Panel of the ORC, comprised of Chair Rod Seiling, was convened to hear the appeal.

Jennifer Friedman appeared as counsel for the Administration. Shale Wagman represented DA SILVA.

Upon hearing the testimony of Senior Steward Richard Grubb, ORC Jockey Emile Ramsammy, and DA SILVA, reviewing the exhibits filed, including the film of the race, and upon hearing the closing submissions, the Panel denied the appeal as follows:

i) DA SILVA’s three-day suspension is upheld;

ii) DA SILVA is found to have proceeded with a frivolous appeal. He is fined $750.

The transcript with the Panel’s oral decision is attached to this Ruling.

DATED at Toronto this 27th day of November 2009.

BY ORDER OF THE COMMISSION

John L. Blakney

Executive Director

ONTARIO RACING COMMISSION

THOROUGHBRED HEARING

IN THE MATTER OF AN APPEAL AND REQUEST FOR HEARING OF EURICO DA SILVA,

Held Before:

Rod Seiling, Chairman

These are an excerpt of the proceedings in the above mentioned matter held before The Ontario Racing Commission, Re: EURICO DA SILVA, taken before Toronto Court Reporters, Suite 1410, 65 Queen Street West, Toronto, Ontario, at 10 Carlson Court, Suite 400, Toronto, Ontario, on the 25th day of November 2009.

Appearances:

Jennifer Friedman,

for the Ontario Racing Commission Administration

Shale Wagman, for the licensee

Hearing continued ...

MR. CHAIRMAN: All rise. Please be seated. After carefully reviewing the testimony, the evidence and the documents submitted the appeal is denied. Mr. Da Silva's three day suspension is upheld. He can ride in those races that he has already been named and the race card has been drawn. Just as an aside that also means that on the Sunday stakes, as I understand and Steward Grubb, you can correct me if I'm wrong, if he is named to ride in that stake race then he can take an additional day later on.

Mr. Da Silva admitted to the disqualification ruling by the stewards was appropriate and therefore the hearing was to deal with penalty only. Mr. Da Silva under the rules has a responsibility to be aware of other riders. His reasons offered are irrelevant. Jockeys are not required to shout or yell as to their position. The video replay supported the testimony of Steward Grubb and jockey Ramsammy to show Mr. Da Silva's interference with Mr. Ramsammy. The position was clearly established. The Rules of Racing are quite clear. The stewards may impose a suspension for violation of Thoroughbred Rule 11.07 and under Thoroughbred Rule 11.09.03. Steward Grubb testified the normal penalty for this rule violation is three days. Ms. Friedman provided precedent cases in Exhibit 1, tab A the Somsanith case and Exhibit 1, tab B the Cruise case, to support the case for a suspension of this length. Mr. Wagman didn't offer any precedent cases to support the appropriateness of no suspension.

The panel agrees with Ms. Friedman that it should consider levying a frivolous appeal fine under Section 11.8 of the Racing Commission Act. Mr. Wagman did not address this request in his final submissions. This hearing was the third hearing for Mr. Da Silva for an offence that he admitted to in his testimony. No new material evidence was submitted in his defence from his steward's hearing to the Industry Appeal Board hearing until today. Neither was any evidence submitted to demonstrate the stewards erred by posting the inquiry sign to this ruling. Licensees have a right to due process. This Commission defends that right and is vigilant to ensure access to due process for all licensees is not an issue. Licensees have an obligation not to abuse this right. The Commission is funded by the industry. Its responsibility as a Commission is to ensure that those rights are upheld but that we also use resources efficiently. Mr. Da Silva, in bringing forth an appeal for which he admits he is responsible and not offering any new material evidence as to mitigating factors or evidence to an err in judgment by the Commission officials, is found to have proceeded with a frivolous appeal. He is fined $750.00. Any questions? Thank you.

CERTIFIED CORRECT:____________________________

RAYMOND P. MACDONALD, B.A., CVR

Commissioner of Oaths