Brenda Goodlet v. Administration, 2009 CanLII 91231

RULING NUMBER COM TB 007/2009

COMMISSION HEARING TORONTO, ONTARIO – APRIL 29, 2009

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

On September 25, 2008, the Stewards at Woodbine issued Ruling Number TB 5598/08 wherein MIA D’COUGAR, ridden by Chantal Ann Sutherland, was disqualified from 1^st position and placed 5^th for interfering with PRIMA DANNA, ridden by David A. Clark, in accordance with Rules 11.09.01 and 11.14 of the Rules of Thoroughbred Racing.

Brenda Goodlet (“GOODLET”), owner of the horse MIA D’COUGAR, appealed Ruling Number TB 5598/08 to the Ontario Racing Industry Board of Appeal (“Appeal Board”).

On November 10, 2008, the Appeal Board convened for the appeal. The Appeal Board denied the appeal.

GOODLET further appealed to a Panel of the Ontario Racing Commission (“ORC”).

On November 14, 2008, Ruling Number TB 5693/08 was issued wherein GOODLET was granted a stay of the Ruling of the Appeal Board pending the outcome of the appeal before a Panel of the ORC.

On April 29, 2009, a Panel of the ORC, comprised of Vice Chair Hon. James M. Donnelly, Commissioner David Gorman and Commissioner Bernard F. Brennan, DVM, was convened to hear the appeal.

Jennifer Friedman appeared as counsel for the Administration. Daniel McMahon appeared as counsel for GOODLET.

Upon hearing the testimony of Senior Steward Richard Grubb, Jockey David A. Clark, Jockey Chantal Ann Sutherland and GOODLET, 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 22^nd day of May 2009.

Rob McKinney

Acting Executive Director

These are Reasons for the Decision rendered herein on April 29, 2009.
This is an Appeal by licensee Brenda Goodlet (Goodlet), owner of the filly MIA D'COUGAR ridden by jockey Chantal Sutherland which finished 1st in the 10th race at Woodbine on September 20th, 2008. Following a Stewards' Inquiry and Jockey's claim of foul MIA D'COUGAR was disqualified for interference and placed 5th immediately behind the horse with which the filly interfered. Thoroughbred Ruling TB5598/08 issued in those terms.
An Appeal by Goodlet to the Industry Appeal Board was dismissed November 10th, 2008. Goodlet appeals from that decision. A Stay was granted November 14th withholding purse distribution pending this Appeal.
Jennifer Friedman appeared for the Administration, Daniel McMahon for Goodlet.
Richard Grubb (Grubb), Senior Steward at Woodbine, had a long and successful career as a jockey followed by 20 years as a Steward officiating at an estimated 32,000 to 33,000 races. Grubb testified as follows: David Clark (Clark), jockey on PRIMA DANNA, checked his horse sharply in the stretch run. The Stewards reviewed the video to determine the cause and noted that just before the incident, YONGE'S HARBOUR, ridden by jockey Emma Wilson (Wilson), took a step to the outside towards the racing lane occupied by PRIMA DANNA. Wilson promptly straightened her mount. In Grubb's opinion that step to the outside was not a factor contributing to this incident. MIA D'COUGAR passed PRIMA DANNA on the outside and cut in occupying PRIMA DANNA’S racing lane. Clark was forced to check PRIMA DANNA to the inside to avoid clipping heels with MIA D'COUGAR.
In Grubb's opinion MIA D'COUGAR’S cutting in constituted obvious interference and equally obviously, PRIMA DANNA lost a place, finishing 5th, beaten by a head for 4th. The Stewards determined this conduct was in violation of Rule 11.09.01. Pursuant to Rule 11.14, MIA D'COUGAR was placed 5^th. No penalty was assessed against jockey Sutherland because in the Stewards' opinion, she made reasonable efforts to control her horse. It had been lugging in since straightening up for the stretch run. Sutherland had a good hold on the right line and whipped with her left hand attempting to keep the horse on the outside.
Clark's evidence was that MIA D'COUGAR came in and "bothers me pretty good down the lane". Clark went on to say that, "at the 1/8th pole MIA D'COUGAR came from the outside, just kind of dropped in front of me. I had to check and I made contact with and bothered Wilson's horse on the inside". Wilson shouted because she was afraid she would be compromised. According to Clark he was outrun by MIA D'COUGAR but still considered that he had a chance to finish second or third.
Wilson's evidence in written form in the Book of Documents filed was, "Sutherland came in, Clark screamed and I got bounced around a little".
Sutherland's evidence was that she felt she had cleared. There was no contact between her horse and Clark's horse. In her view there was no basis for Clark to check his mount. He was "grandstanding" and he was "trying to make it look good on a dead horse."
Goodlet viewed the race from the grandstand. In her view MIA D'COUGAR cleared before cutting in. The difference in the purse structure for her (between 1st and 5th) is about $36,000.00.
Mindful of the standard of proof on the balance of probability, the stakes are sufficiently high that the evidential burden on the Administration is to make out its case by cogent evidence, clear and compelling.

Findings:

The Panel finds that as is clearly demonstrated by the head on or tower video view, MIA D'COUGAR came directly and fully into Clark's racing lane. The Panel further finds that MIA D'COUGAR did not clear in the sense of providing racing room. On this issue, there is conflicting evidence. On the one hand an impression by Sutherland that she had cleared, supported by Goodlet’s view from the grandstand. Against that is the video evidence that Clark checked his horse in substantial manner. He pulled his mount’s head sharply to the left away from Sutherland's horse and almost stood in his stirrups. His horse lost momentum. It bumped Wilson's horse. Spontaneous shouts were emitted by Wilson and Clark. That evidence added to Clark's testimony constitutes proof by cogent evidence, clear and compelling that Sutherland had not cleared.
The virtue of no contact between Sutherland's mount and Clark's mount is not an indicator of Sutherland’s exoneration. It is an attribute of Clark's prompt and effective defensive postures.
In result, the suggestion that Clark was “grandstanding” falls on barren ground. This “cutting in” did amount to interference in contravention of Rule 11.09.01. The placement was correct pursuant to Rule 11.14. The Rules are discretionary and were correctly applied.
The Appeal is dismissed.

Jockey Penalty

The issue of jockey penalty was not before the Panel because the Stewards were of the opinion that Sutherland's efforts to control the horse, although not perfect, were reasonable. In effect, the Stewards attributed the incident to the horse's activity.

Frivolous Appeal

It was suggested by the Administration that costs potentially to a $1,500 maximum be awarded against Goodlet on the basis that the Appeal was frivolous -- the fourth in a series of such requests by the Administration, Charalambous, Hendry, Bowles and Goodlet.
Recent commentary on frivolous Appeals was made in both the Ernie Hendry and Kent Bowles Reasons. Access to Commission Panels by licensees with grievances, real or honestly believed, should be protected. Such Appeals will rarely be frivolous (in the sense of having no chance of success). Censure through a finding of frivolous Appeal and imposition of costs should be focused on discouraging what might be termed “recreational or nuisance litigation” with no chance of success.

Interference Violations

In passing, it is the view of this Panel that interference calls are calls of first instance. They are judgment calls by those well equipped to do so. An appeal from such decisions will involve review of opinions by officials trained, experienced and charged with those daily responsibilities. Absent some new and significant element not before the Judges or Stewards at first instance, the probability is that such opinions will be accorded substantial weight.

DATED this 22^nd day of May 2009.

James M. Donnelly

Vice Chair

Attachment

Thoroughbred Rules

Rule 11.09.01

If a horse or jockey bothers another horse or jockey, the aggressor may be disqualified provided that the bothered horse or jockey or an additional horse or any jockey/s was/were not a major contributor to the incident.

Rule 11.14

In determining the extent of disqualification of a horse in any race, the Stewards may place the disqualified horse behind such horse as in their judgment the disqualified horse interfered with, or they may place it last.