AMENDED RULING NUMBER COM QH 005(a)/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 GARY MCNICHOL
On October 4, 2009, following the running of the 7th race at Ajax Downs Racetrack, a claim of foul was lodged by Jockey John McInerney (“McInerney”) Licence No. 111902, rider of #4 “Inky Blue Pearl”, owned by Marlene and Gary McNichol (“McNichol”) and trained by Alan Todd (“Todd”) against #3 “The Diamond Side” ridden by Jockey Dean Deverell (“Deverell”), Licence No. 110201, for alleged interference through the stretch.
After a review of the film patrol, pan and front tower view replays and speaking with Deverell, the Stewards concluded that #3 “The Diamond Side” did move across the path of #4 “Inky Blue Pearl” but was clear enough to do so at such time and disallowed the claim of foul.
On October 12, 2009, Owner McNichol filed a Notice of Appeal with the Ontario Racing Commission (ORC) in accordance with Rules 13.17 and 13.17.02.
On May 12, 2010, a Panel of the ORC, comprised of Commissioner John Macdonald, convened to hear the appeal of Owner McNichol. With the consent of McNichol and Licensee John McCracken, and given that each of the appeals arose from the 7th race at Ajax Downs Racetrack on October 4, 2009, the appeals were heard jointly.
Fenton Platts appeared on behalf of the Administration of the ORC. McNichol attended the Hearing and was self-represented.
After reviewing the evidence, hearing testimony of Jockeys Deverell, McInerney and Smith, and upon consideration of closing submissions, the Panel denied the appeal.
The order of finish for the 7th race on October 4, 2009, will remain with regards to #3 “The Diamond Side” and #4 “Inky Blue Pearl”. Any purse held in regards to this appeal will be released by the Association of Ajax Downs.
A Transcript of the Panel’s Reason 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 JOHN MCCRACKEN and GARY MCNICHOL
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: Fenton Platts for the Ontario Racing Commission Administration
Hearing Continued:
THE CHAIRMAN: Ladies and gentlemen, the first matter of Mr. McCracken's horse, the difficulty as I saw it was when they left the gate the question is whether the 2 horse had enough room to move out even though it would appear from the video that 1 and 3 pinched in, the unfortunate horse appears to have left -- not been impeded in the laneway it went up so it did have the opportunity to move up at that stage. The evidence of the Steward was -- and the witness was that he didn't break fast so that there was no interference there and I accept that. So in that case I will deny the appeal. Now the more difficult one is the 3 and the 4. In their close quarters there I don't really see how some of the other horses interfered so it comes down to the question of the opinion of those involved and those who were at the race are a lot more qualified than most of us to be able to determine whether there was safety to cut cross. There's no question that the horse drifted and went across. The question was whether they interfered, he interfered with Mr. McNichol's horse. The two jockeys have slightly deviating positions as to whether there was enough room or not enough room. Initially you can certainly see that it looks like -- I couldn't actually see any actual bumping but it was certainly close quarters and so I'd have to rely on the evidence of the Steward here who said in his opinion that he thought there was enough room to move across. It's very close, in my mind, and I have to give them the benefit of the doubt on that, so if we could have seen a slightly different view, we didn't see any horses heels being clipped or anything. There certainly wasn't a lot of room and we had discussions here about one length or two lengths being ideal. In a short race where the horses are all quite young to start with, drifting is not unusual. And keep in mind that as much as it would appear, it was way too close as far as the opportunity to move, I'm going to deny that appeal as well on the basis that on the evidence, it seemed to me that there was enough room for the horse to move.
MR. PLATTS: Thank you, Mr. Macdonald.
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.