Robert Evans and Javier Castellano, 2010 CanLII 98985

RULING NUMBER COM TB 008/2010

COMMISSION HEARING TORONTO, ONTARIO – MAY 26, 2010

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

AND IN THE MATTER OF THE APPEAL AND REQUEST FOR HEARING BY

THOROUGHBRED LICENSEES, ROBERT EVANS AND JAVIER CASTELLANO

On September 23, 2009, the Stewards issued Ruling Number TB 6157/09 to Javier Castellano (“CASTELLANO”) which ordered a suspension of three (3 days) for coming in with his mount “MARSH SIDE” and interfering with inside horses during the stretch run of the 8th race on September 20, 2009. The Stewards further issued Ruling Number TB 6156/09 which ordered that the horse “MARSH SIDE”, owned by Robert S. Evans (EVANS”) is disqualified from 1st position and placed 4th for coming in and interfering with inside horses during the stretch run of the 8th race on September 20, 2009.

On September 23, 2009, CASTELLANO filed a Notice of Appeal of Ruling TB 6157/09. On September 23, 2009, EVANS filed a Notice of Appeal of Ruling TB 6156/09.

On May 26, 2010, a Panel of the Ontario Racing Commission (“ORC”) comprised of Chair Rod Seiling, Vice-Chair James Donnelly and Commissioner Brenda Walker convened for the purpose of hearing the appeals.

Maureen Harquail appeared as Counsel for the Administration of the ORC. Daniel McMahon appeared as Counsel for CASTELLANO, Peter Howard appeared as Counsel for EVANS. Harvey Swartz appeared as Counsel for Jonathon Shepherd.

After hearing the evidence of Steward Richard Grubb, Mark Casse, Jerry Bailey, Peter Goodale, Bernard Hettle, Robbie King and CASTELLANO, and upon reviewing the exhibits filed and upon hearing closing submissions, the Panel grants both appeals and orders the restoration of the original order of finish.

The Panel’s Reasons for Decision is attached to this Ruling.

DATED this 10th day of June 2010.

BY ORDER OF THE COMMISSION

John L. Blakney

Executive Director

REASONS FOR DECISION

Overview

1. Thoroughbred licensee, Robert Evans, appealed a decision of the Stewards, TB Ruling No. 6156/09 (Ex. 1, tab 13) wherein his horse, March Side, was disqualified from its first place finish and placed fourth in a race held at Woodbine on September 20, 2009, in the Grade I, Northern Dancer Turf Race. Jockey Javier Castellano, the rider of March Side in the race appealed a decision of the Stewards, TB Ruling No. 6157, (Ex. 1, tab 10) wherein he was suspended for three days for interfering with inside horses during the stretch run of the race. A de novo hearing was held to hear the appeals on May 26, 2010.

Background

2. Legal counsel for the Ontario Racing Commission (ORC), Maureen Harquail, and Peter Howard and Dan McMahon acting for Mr. Evans and for Mr. Castellano respectively agreed to join the appeals according to the ORC Rules and Procedures, No. 10.1.

3. Mr. Harvey Swartz requested standing on behalf of Mr. Jonathon Shepherd, the owner of the horse, Just As Well, and in the process gave notice that he intended to call trainer, Mark Casse as an expert witness. He submitted he provided notice as soon as he could, given that he had just been engaged by Mr. Shepherd.

4. In that regard, evidence was led that Mr. Shepherd’s decision to hire legal counsel may have resulted from a phone call from Steward Richard Grubb. Mr. Grubb testified that he made the call to Mr. Shepherd based on information he received that Mr. Shepherd may not have been aware of the hearing. Mr. Shepherd would have received notice of the hearing just as all parties as per ORC rules.

5. Ms. Harquail informed the Panel that she only became aware of the request the day before and such a request was not in compliance with the Commission’s rules which require under Rule 3.9, ten days’ notice with respect to expert witness testimony. Under Rule 3.10, the Panel does have the authority to allow the request. The appellants did not oppose granting Mr. Swartz standing but objected to allowing Mr. Casse to testify as an expert witness as it would deprive the appellants the opportunity to prepare for his testimony.

6. The Panel ruled that it would grant standing to Mr. Swartz and allow him to call Mr. Casse as an expert witness. It did so on the basis that it was important to have the hearing proceed as scheduled, that it was in the public interest to have a fair hearing, that by definition included Mr. Swartz, that the panel would allow the appellant’s extra time and scope in their questioning of Mr. Casse, and that if the hearing had to be adjourned for an extra day because of granting Mr. Swartz’s motion, the Panel may attach the incremental costs to Mr. Shepherd for that day.

7. Steward Grubb testified that from the Stewards’ viewing of the race and from the video replay, there was obvious interference on the horse Champs Elysees during the stretch run of the race. The horse that caused the interference by creating a “herding” effect was March Side as jockey Castellano moved him from the 8 path to the 2 path thereby forcing the horse, Quijano, ridden by jockey Andrasch Starke to move in towards Champs Elysees. TB Rule No. 11.07 reads, “When clear, a horse may be taken to any part of the track, but if a horse swerves or is ridden to either side so as to interfere with, or intimidate or impede any other horse, such horse may be disqualified.” There was no contact made with Champs Elysees, nor is such required for a violation of the rule. Mr. Grubb’s testimony is that the jockey on Champs Elysees, Garret Gomez, had to check his horse as a result of the interference.

8. Mr. Grubb admitted that the Stewards did not post the inquiry sign following the race but that jockey Gomez claimed foul against both Mr. Castellano and Mr. Starke as he was not sure which person caused the interference on his horse. He also admitted that the Stewards missed the call on jockey Starke for raising his arm over his shoulder while whipping his horse during the stretch run.

9. Mark Casse testified that he had two horses in the race and that he observed the race from his box in the grandstand via binoculars and post race on video replay. His testimony was similar to Steward Grubb’s that was the herding in movement by jockey Castellano from the outside lanes down into the other horses. He contended that the interference on Champs Elysees was obvious and that the horse, March Side, should be disqualified.

10. The appellants submitted that it was the vigorous whipping action by jockey Starke on his horse, Quijano that caused the interference as it moved from about the 5 path down towards Champs Elysees near the rail position. It was smart riding tactics, they claimed, for jockey Castellano to move into the unoccupied space vacated by Quijano. Mr. Castellano submitted that to not make such a move could allow another horse to gain an advantage. These viewpoints were supported by Hall of Fame jockey, Jerry Bailey, former jockey and now manager of the Jockeys’ Benefit Association, Robert King, and former Steward in the United States, Bernard Hettel. None observed a rule violation by Mr. Castellano during the stretch run of the race.

11. Mr. Bailey testified that Castellano did what I would have done, that he did not breach any rule and to do otherwise would “not be doing his job”. It was his opinion that he was entitled to take the unoccupied space as long as he was not impeding other horses.

12. Mr. Bailey submitted that it is well known that Champs Elysees has a reputation as a chicken because he does not like to run along the rail. The actions of jockey Starke could well be explained that he moved down to keep the horse in that position so that he could not run his race. He stated that Mr. Starke may have gone overboard in his attempt to intimidate Champs Elysees. Mr. Gomez’s checking of his horse may also have been the result of the horse’s disposition of not wanting to race along the rail, he submitted.

13. The appellants submitted split screen video formatted from the official video and pictures made from that same formatted video. Both clearly show that March Side, throughout the stretch run, never crowded Quijano thereby forcing the horse down towards the 2 path as there was always space between them and that March Side was never clear in front.

14. Mr. Hettel submitted that the Stewards disqualified the wrong horse. Champs Elysees was interfered with, but it was by Qiujano. It was his view that the use of the whip by jockey Starke caused Quijano to move in as he did and thus cause the interference.

15. Mr. King submitted that there should be no penalty for Mr. Castellano. The jockey who should have been penalized, he testified, was Mr. Starke, both for his violation of the whipping rule and for causing the interference. He reported that in his discussions with Mr. Gomez following the race, that he was upset as he felt that someone had put him “into the fence”. He also supported Mr. Bailey in as much as it was his view that in following Quijano down, Mr. Castellano went from the 8 path to the 4 path and then down to the 2 path. These two opinions were consistent with jockey Castellano who testified that he moved down “a little bit”.

16. Mr. Castellano submitted that the video supported his claim that he just moved down into the unoccupied space as he was entitled to do, that he never intimidated Quijano or his rider and that all along during the stretch there was ample space between the two horses. He did not agree that any of the pictures in Exhibit 5 showed that his horse was not running straight He submitted that “whip 6" picture showed that there was room for a third horse but that jockey Gomez anticipated and pulled up his horse.

Issue

17. Was the horse, Champs Elysees, interfered, impeded or intimidated during the stretch run of the 8th race at Woodbine on September 20, 2009? If TB Rule No. 11.07 was violated, who caused the violation? Did the Stewards correctly apply TB Rule No. 11.09.03 against jockey Castellano?

Decision

18. After carefully reviewing the testimony and evidence and reviewing the documents submitted, the Panel grants both appeals. The original order of finish is restored.

Reasons for Decision

19. There were a number of important sources of credible, independent and authoritative information not available to the Stewards immediately post race on September 20, 2009 but were presented as evidence in the de novo hearing. As per the Landry hearing, [1995] O.R.C.D. No. 34 at para 7.... “We begin by reminding all the parties that our function is to hear appeals by way of hearing de novo which means that we are deciding the matter on the basis of the evidence that we hear today, oral, video, and written. This is not a process by which we determine whether or not what our Judges and Stewards do is correct or incorrect. They must make a call based upon what they see at the racetrack and what they hear at the stewards’ hearing”.

20. The onus was on the Administration to prove that both March Side and jockey Castellano violated the rules by interfering with other horses during the stretch run. Neither the testimony of Steward Grubb nor Mr. Casse in combination with the official video of the race could reasonably demonstrate that either appellant breeched the rules during the stretch run.

21. New evidence, supported by the testimony of Bailey, King and Hettel, clearly proves that neither jockey Castellano nor March Side during the stretch running of the race did interfere, intimidate or impede any horse. There was always space between March Side and Quijano as both horses moved in, March Side from the 8 to the 4 path and then on to the 2 path, Quijano from about the 5 path and inward. There was no “herding” action on his part. He occupied the space as he can do under the rules as it became open to him as Quijano moved toward the rail and Champs Elysees. March Side, as per the pictures in Exhibit 5 show, was never in the lead. He may have had a head or so on Quijano. On that basis, it would have been impossible for him to swerve into Quijano’s path. Based on these facts it is reasonable to conclude that neither March Side nor Mr. Castellano violated any rules during the stretch run of the race.

22. Neither Steward Grubb nor Mr. Casse had the benefit of the split formatted screen video (Ex. 6) nor the still pictures. Both had to formulate their opinion and judgment without the benefit of having the pan and head shot juxtaposed. This vantage provides a unique and revealing aspect of the race that clearly supports the position of the appellants.

23. The Administration’s case is further weakened by:

• Stewards failing to post the inquiry sign
• failing to detect Starke’s whipping violation which may or may not have affected his horse moving in on Champs Elysees
• powerful, credible and independent testimony supporting the appellants by Bailey and King buttressed by Hettel
• Bailey’s hypothetical synopsis of Starke’s riding strategy

24. Based on the evidence before the Panel, it is inconclusive that Champs Elysees was interfered with during the stretch run. Jockeys have in the past stood up during the race when their respective tactical plan has been thwarted by another rider to try and “get a call”. Mr. Castellano’s uncontested testimony suggested there was enough room for three horses and that jockey Gomez did not have to check his horse. Was he anticipating, as Mr. Castellano suggested, or was this a case of the horse’s unwillingness to race along the rail as Mr. Bailey testified the horse had a well deserved reputation? Exhibit 5, whip (pictures at 4, 5 & 6) picture supports Mr. Castellano’s testimony and that of Mr. Bailey. There is room between the rail and shadow rail for a horse to run unimpeded. The Panel did not have the benefit of hearing testimony from either jockeys, Starke or Gomez in this regard, therefore it is left with the evidence before it.

25. The argument that jockey Starke’s violation of the urging rule caused the interference on Champs Elysees is irrelevant. There is no doubt that Mr. Starke violated the rule during the stretch run. That rule violation does not equate automatically to the cause for his horse, Quijano, to move down at the rate he did. As a European horse, it is reasonable to expect that the horse was not startled by a style of urging that is legal in Europe.

26. As to the admitted testimony that Steward Grubb contacted owner Shepherd prior to the hearing, the Panel finds no fault with his actions. However, it strongly suggests that in the future, should any Commission Steward/Judge deem it necessary to contact a party to a hearing, such communication should occur via the legal department of the Commission.

DATED this 10th day of June 2010.

Rod Seiling

Chair