Michael J. Doyle v. Administration of the ORC, 2010 CanLII 98991

RULING NUMBER COM TB 006/2010

COMMISSION HEARING TORONTO, ONTARIO – MAY 18, 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 MICHAEL J. DOYLE

On August 12, 2009, the Ontario Racing Commission (“ORC”), issued, inter alia:

1. A Notice to the Industry entitled “New Rules on Urging the Horse in Racing”, effective September 1, 2009;
2. Policy Directive No. 3-2009, “Penalty Guidelines for Inappropriate Urging of a Horse in Thoroughbred Racing”; and
3. Thoroughbred Directive Number 4-2009, an amendment to the Rules of Thoroughbred Racing which included Rule 9.27.02 in relation to riding crop requirements.

On September 2, 2009, Chantal A. Sutherland (“Sutherland”), a jockey (Licence No. 102124), rode the horse, SAN SOUSI in the second race at Woodbine Racetrack and finished first.

Michael J. Doyle (“Doyle”), was the trainer (Licence No. 121298) and owner (Eaton Hall Farm and M.J. Doyle Racing Stable Ltd.) of the horse, SANS SOUSI.

On September 4, 2009, the Track Stewards issued Ruling Number TB 6057/2009 which fined Sutherland $200 for failure to use an approved riding crop during the race.

As a consequence of this Ruling and pursuant to the Rules, SANS SOUSI was disqualified from first to ninth place. The horse, BOLD MANEUVER moved from second to first place.

On September 5, 2009, Doyle filed an Appeal against the disqualification of his horse, SANS SOUSI.

A Panel of the ORC, consisting of the Chair Rod Seiling, the Vice Chair James Donnelly and Commission Member Bernard Brennan, D.V.M., was convened to hear this matter.

Michael J. Doyle appeared in person at the hearing. Peter F.C. Howard appeared as counsel for Doyle. Gail Cox and John Menary appeared in person as owners of the horse, BOLD MANEUVER. Anthony Williams appeared as counsel for the Administration of the ORC.

After reading the exhibits which were filed, reviewing the evidence and considering the closing submissions, the Panel denied the appeal of Michael J. Doyle.

The decision of the Track Stewards which placed the horse, SANS SOUSI from first to ninth was upheld.

DATED at Toronto this 27^th day of May 2010.

BY ORDER OF THE COMMISSION

John L. Blakney

Executive Director

REASONS FOR DECISION

Overview

1. Thoroughbred licensee, Michael Doyle, appealed a decision of the Stewards, TB Ruling No. 6058/09 (Ex. 1, tab 13) wherein the horse, SANS SOUSI, which raced in the second race at Woodbine on September 2, 2009, and was ridden by jockey, Chantal Sutherland, was disqualified from its first place finish and placed last because Ms. Sutherland carried a prohibited riding crop during the race. September 2, 2009 was the first day of racing at Woodbine wherein TB Rule No 9.27.02 applied.

Background

2. TB Rule 9.27.02 was implemented following an exhaustive consultation process with the entire thoroughbred racing industry. The intent of the rule is to protect the health and welfare of the horse and to protect the safety of participants in the sport. The Ontario Racing Commission (ORC) undertook this initiative under its mandate of protecting the health and welfare of the horse and the safety of participants. It viewed any potential violation a serious breach and as such, established severe consequences for such violations to serve as a deterrent.

3. Legal counsel for the ORC, Anthony Williams and for the appellant, Peter Howard, via their respective Factums, Exhibits 2 and 3 respectively, clearly indicated that there was no disagreement between the parties as to the facts. John Menary, co-owner of the horse, BOLD MANEUVER, was granted standing and took a position of supporting the Administration.

4. That is, there was an acknowledged breach of TB Rule No. 9.27.02 during the race. This rule, following a fifteen-day implementation period, came into full force on September 1, 2009. Prior to full implementation, the ORC held industry meetings, issued various communications including a Notice to Industry dated August 12, 2009 (Ex. 1, tab 2). Policy Directive No. 3 - 2009 (Ex 2, tab 2) dated August 12, 2009, dealt with the penalty guidelines for a violation of TB 9.27.02 while Thoroughbred Directive Number 4-2009 dated August 12, 2009, added a new section outlining the specifics for the new riding crop. Following subsection (f) of the rule it reads, “Use of a riding crop in a race where the type of riding crop has not been approved by the Stewards or does not meet the requirements of the rule, will lead to automatic disqualification.”

5. Jockey Sutherland admitted her breach of the rule, and was fined $200, TB Ruling No. 6057/09 (Ex. 1, tab 14). Ms. Sutherland did not appeal the penalty. While Ms. Sutherland could not remember if she read the actual rules regarding the new riding crop, she did recall attending a seminar on it and was familiar with the basic tenets of the rule.

6. Ms. Sutherland testified that she first became aware she had inadvertently “grabbed” the wrong crop during the post parade some six to ten minutes before the start of the race when fellow jockey, Emma Jane Wilson, told her she did not have the new approved crop. She proceeded immediately to outrider, Darin Fortune, who instructed her to go to the gate and get a new crop. She did not ask Mr. Fortune to contact the Stewards but assumed he would. At the gate, she told them of her problem. One of the gate crew was instructed to get her a new approved crop but came back saying they did not have anymore and she was provided with another unapproved crop. She testified that she was told to ride with the old unapproved crop by the racing personnel at the starting gate but never spoke directly to the official starter, Drew Brown. She considered riding without a crop but was concerned she would be penalized. She never asked for time to have someone bring her an approved riding crop nor did she ask anyone at the gate to contact the Stewards as to her situation.

7. Senior Steward, William McMahon, testified that the Stewards were not informed of the rule breach until after the race, despite the fact that two outriders and the starter have radios for immediate contact with them. Extra precautions were put in place that day to ensure compliance with the new rule. Steward Gunnar Lindberg made arrangements for an announcement in the jockeys’ rooms that day, related to the requirements of jockeys to use the new riding crop. The Clerk of the Scales and the Paddock Judge were asked to be on alert for compliance, and the track ran trailers on the television monitors.

8. Mr. Howard argued that the owners had done nothing wrong and therefore should not have to absorb a penalty of $40,800, the amount of the purse winnings lost by the placement. They were not responsible for their jockey’s actions, he claimed, and therefore the disproportionate penalty was unfair to the appellant. It was his position that there was no evidence that the outcome would have been any different had Ms. Sutherland complied with the new rule. He contended that it was in the best interests of racing to allow the appeal and urged the Panel to utilise TB Rule No. 24.03.

9. Mr. Howard submitted that the Stewards are estopped from disqualifying the horse. The basis for his argument was that under common law doctrine, estoppel applies where (a) a promisor, either by words or conduct, makes a promise or assurance, (b) the promise or assurance was made to affect a legal relationship, or (c) the promissee relied on the representation to their detriment. In support of this position, he provided the precedent case of Mount Sinai Hospital Centre v Quebec, 2001 SCC at para 45-47. Mr Williams countered that the case was not similar to this matter as the case related to a pattern of conduct over a seven-year period.

10. Mr. Howard also referred the Panel to Aurchem Exploration Ltd. v. Canada [1992] F.C.J. No. 427 (F.C.T.D.). He submitted that the Stewards were not bound by the strict compliance of Rule 9.27.02, and in fact are precluded from such.

11. Under the Rules of Racing in Chapter 2, a list of racing officials includes starter and assistant starter. No evidence was led to indicate either position had the powers entrusted to the Stewards under the Rules of Thoroughbred Racing. Mr. Howard referred the Panel to Chapter 11 of the Rules wherein those racing officials’ respective powers are outlined. Their authority is limited to certain situations once the horses are on the track and do not refer to any ability to ride without approved equipment.

Issue

12. Did the Stewards correctly interpret and apply TB Rule No. 9.27.02? Should the Stewards decision be estopped based on the precedent cases cited by the appellant?

Decision

13. After carefully listening to the testimony and reviewing the evidence and the documents filed, the Panel denies the appeal.

Reasons for Decision

14. There is no dispute that Jockey Sutherland rode SANS SOUSI in the second race at Woodbine on September 2, 2009, with an unapproved riding crop, thereby violating TB Rule No. 9.27.02. The rule is specific; such a violation will lead to the said horse being disqualified. The rule cannot be subverted by on track racing officials in the employ of the track operator.

15. It is in the best interests of racing that the Stewards decision be upheld. Participants and fans expect and deserve that every race be run according to the rules. The only difference in this case from some other rule violation by a jockey such as carrying the wrong weight is that this violation occurred on the first day of the rule’s implementation. Nevertheless, it does not mitigate the need for the strict enforcement of the rule just as the Commission enforces all its rules. To allow the appeal to succeed would seriously jeopardise the future prospects of an industry where it is expected and deemed essential that all participants obey all the rules pertaining to a race.

16. It is irrelevant to whether Ms. Sutherland had or did not have an advantage using an unapproved riding crop. She violated Rule 9.27.02 and that rule calls for a disqualification. Fairness must be distinguished from favour. Fairness embraces all parties having an interest; the appellant, the other participants in the race and the public interest in racing. Fairness is premised upon uniform application of the rules of racing. When a rule is arbitrarily or inconsistently applied to favour one participant to the detriment of others, there can be no fairness. To fail to apply the disqualification provision in the rule would provide a substantial benefit for the appellant at the expense of an equal detriment to the racing interest of the horse that finished second to SANS SOUSI. The fairness submission must fail.

17. The onus for the rule breach is clearly on Sutherland. Her actions post the violation support this fact. She accepted her penalty and paid her fine. She did not appeal the Stewards’ ruling. She had options. She could have asked for time to have someone bring her an approved riding crop, she could have asked one of the on track racing officials to call the Stewards or she could have ridden without one. She chose to ride with what she knew to be an unapproved crop.

18. There were a series of unfortunate lapses preceding race 2 at Woodbine on September 2, 2009. It started with Jockey Sutherland grabbing the wrong crop. It was followed by the failure of racing officials in the paddock to see she had the wrong crop and also by the horse’s trainer, Mr. Doyle to see the same. Once on the track, the racing officials, once Sutherland informed them of the problem, should have contacted the Stewards. They did not and, there should have been a spare approved riding crop available at the starting gate. Nevertheless, Ms. Sutherland still should have opted to follow one of the aforementioned options that would have negated the preceding lapses and ensured that she complied with the Rule.

19. Contrary to Mr. Howard’s submission, owners have a responsibility. It is for that very reason the Commission has instituted owner responsibility provisions. Owners are responsible for the people they hire to care for and ride their horses. Implicit in the rule is that their instructions to their representatives must be, “Obey the rules”. Mr. Doyle bore that responsibility as he was both the owner and trainer of the horse. As such, he had a responsibility to ensure the jockey he named to ride his horse did not violate the rules of racing by using an unapproved riding crop. Given that TB Rule No. 9.27.02 was new for Woodbine that very day, September 2, 2009, it is reasonable to expect that he would check to ensure his jockey was carrying the legal riding crop just as others were taking precautionary measures to try to prevent such a mishap. It is unreasonable to expect he was not aware of the new rule enforcement that day given the evidence of the many initiatives undertaken to remind all the participants.

20. The racing officials that allegedly told jockey Sutherland to ride the race with the unapproved riding crop are not Ontario Racing Commission officials. They are racing officials employed and paid by Woodbine Entertainment Group, the track owner and operator. They are licensed by the Commission just as grooms, trainers, announcers, etc. are licensed. Only the Stewards have the delegated authority from the Commission to act. Therefore the estoppel submission fails.

DATED this 27^th day of May 2010.

Rod Seiling

Chair