Ontario

Racing

Commission

TB

RULING NUMBER COM TB 002/2010

COMMISSION HEARING TORONTO, ONTARIO – MAY 12, 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 LICENSEE JOSEPHINE CARROLL ON BEHALF OF

OWNER VINERY STABLE LLC.

On October 17, 2009, the Stewards issued Thoroughbred Official Ruling TB 6223/09 wherein the horse D’Wild Storm was disqualified from first position and placed second for the following reason:

The rider of D’Wild Storm inadvertently struck the second-place horse on or about the head during the stretch run of the eighth race on October 11, 2009, at Woodbine Racetrack.

The decision to disqualify was the result of a protest lodged by Trainer Paul Nielsen (“Neilsen”) of the second-place horse, Bigger Breeze, in accordance with Rules 11.09.01, 11.09.02, 11.10, 11.12, 11.14, 13.02, 13.04.01(d), 13.12 and 13.14 of the Rules of Thoroughbred Racing.

On October 22, 2009, Trainer Josephine Carroll (“Carroll”), on behalf of Owner, Vinery Stable LLC., filed a Notice of Appeal, pursuant to Rule 13.17(b) of the Rules of Thoroughbred Racing.

On May 12, 2010, a Panel of the ORC, comprised of Commissioner John Macdonald, convened for the purpose of hearing this matter.

Steward Gunnar Lindberg appeared on behalf of the Administration of the ORC. Carroll attended the Hearing and was represented by Counsel Dan McMahon and Nielsen attended the Hearing and was represented by Counsel Harvey Schwartz.

After reviewing the evidence, hearing the testimony of witnesses Steward Richard Grubb, Jockey Patrick Husbands and Jockey Geraldo Olguin, and upon considering the closing submissions, the Panel denied the appeal.

A transcript of the Panel’s Reasons for Decision is attached to this Ruling.

DATED at Toronto this 14th day of May 2010.

BY ORDER OF THE COMMISSION

John L. Blakney

Executive Director

ONTARIO RACING COMMISSION

IN THE MATTER OF THE APPEAL AND REQUEST FOR HEARING OF

JOSIE CARROLL

Held Before

John Macdonald, Chairman

This is an excerpt of the proceedings in the above mentioned matter held before The Ontario Racing Commission, taken before Toronto Court Reporters, Suite 1400, 65 Queen Street West, Toronto, Ontario, at 10 Carlson Court, Suite 400, Mississauga, Ontario, on the 12th day of May, 2010.

Appearances:

Gunnar Lindberg, for the Ontario Racing Commission

Administration

Dan McMahon, for Josie Carroll and

Vinery Stables LLC

H. Swartz, for Paul Nielsen and

Hopefield Farms

Hearing Continued:

THE CHAIRMAN: Firstly I'd like to thank all counsel for helping me through this. And obviously hindsight is much easier and the videos are a help to me. The witnesses were very candid and forthright in acknowledgment. Mr. Olguin didn't know that his horse had been hit, it wasn't flagrant and it would appear from what I could see, that it was inadvertent with both riders trying to urge on their horses as much as they could and it was only after the alertness of the trainer that the matter was brought to the rider's attention. He did try to put in a protest at that time and it was acknowledged that it was too late. A protest was then made and Mr. McMahon points out that the Stewards had not noticed this, the jockeys had not noticed this but unfortunately the facts were there and it does show, in my view as the panel, that the horse was hit, no matter how inadvertent, but it did happen. It wasn't serious and I believe the fine accordingly was not a serious fine. The argument Mr. McMahon had about pith and substance to make sense of the Rules, you do have the opportunity to lodge the protest and under Rule 13.14 as Mr. Swartz pointed out, the horse was disqualified as a result of the protest. Well, the protest obviously was not something you can wait for weeks and it was done fairly quickly thereafter. And that follows on, as Mr. Lindberg pointed out, on 11.10, the Stewards have the right to take action as they see fit. While it was a close call, I will deny the appeal and the placing will stay as is. Thank you. Any further questions, gentlemen?

MR. LINDBERG: No, sir.

MR. McMAHON: No, thank you, sir.

I hereby certify the foregoing to be a true

and accurate transcript as taken by me

to the best of my skill and ability.

Maureen D. Hopkinson, CVR-CM,

Commissioner of Oaths.

My certificate expires:

June 4, 2013.