George Weaver v. Ontario Racing Commission, 2011 CanLII 98224

RULING NUMBER COM TB 009/2011

COMMISSION HEARING TORONTO, ONTARIO – AUGUST 9, 2011

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 GEORGE WEAVER

On June 26, 2011, the Highlander Stakes was run as the 5th race at Woodbine Racetrack. The order of finish was:

1. Signature Red
2. Fiddlers Patriot
3. Heros Reward
4. Riding the River.

George Weaver (“WEAVER”), trainer of the horse Fiddlers Patriot, submitted a Notice of Appeal claiming there were clear grounds to disqualify Signature Red and place the horse 3rd.

On August 9, 2011, a Panel of the Ontario Racing Commission (“ORC”) consisting of Vice Chair James Donnelly, Commissioner John Macdonald and Commissioner Brenda Walker, was convened to hear the appeal.

Angela Holland appeared as counsel for the Administration; Dan McMahon appeared as counsel for WEAVER. WEAVER attended the hearing in person and Peter Howard appeared as counsel for Norseman Racing Stables Inc. (owner of Signature Red).

Upon hearing the testimony of Senior Steward William McMahon, Luis Contreras, Jono Jones, Sheldon Russell and WEAVER, upon reviewing the exhibits filed and upon hearing the submissions of Ms. Holland, Mr. McMahon and Mr. Howard, the Panel denied the appeal.

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

DATED at Toronto this 31st day of August, 2011.

BY ORDER OF THE COMMISSION

John L. Blakney

Executive Director

REASONS FOR DECISION

1. This Hearing relates to an interference claim.

The Race

2. Highlander Stakes Race 5, Woodbine, Sunday, June 26th, 2011

The Finish

3. 1st SIGNATURE RED, Jockey Luis Contreras - purse $120,000

4. 2nd FIDDLERS PATRIOT, Jockey John Velazquez – purse $40,000

5. 3rd HEROS REWARD, Jockey Sheldon Russell – purse $20,000

The Claim of Foul

6. The original claim of foul was lodged by the trainer and jockey of HEROS REWARD against SIGNATURE RED for interference in the stretch by coming over, tightening up and thereby impeding HEROS REWARD'S space.

The Stewards’ Position

7. Stewards William McMahon, Gunner Lindberg and Brian Newton interviewed Jockeys Sheldon Russell, Luis Contreras and Jono Jones (ESSENCE HIT MAN) and reviewed the race tapes, head on, pan and lower pan. The Stewards disallowed the claim of foul.

8. After the foul was disallowed, Trainer George Weaver (“Weaver”) and the owners of FIDDLERS PATRIOT viewed the race video with the Stewards who explained their Ruling. The Stewards then explained the Appeal procedure and provided the FIDDLERS PATRIOT connection with a copy of the race video. No appeal of the Stewards’ Ruling was taken by the HEROS REWARD interests.

This Hearing

9. Upon the application of George Weaver on behalf of James F. Olson and the R.A. Hill Stable, owners of FIDDLERS PATRIOT, relating to the identical racing incident. No claim of interference with FIDDLERS PATRIOT was made.

The Claimed Relief

10. Disqualification of SIGNATURE RED to be placed 3rd behind HEROS REWARD which would move FIDDLERS PATRIOT up to finish first.

The Grounds Alleged in the Notice filed by Weaver

11. "We believe that the rider of SIGNATURE RED intentionally tightened up the spot that HEROS REWARD had established between ESSENCE HIT MAN and SIGNATURE RED. He repeatedly pulled the left rein in to put his horse's head inward when HEROS REWARD had already made a path between SIGNATURE RED and ESSENCE HIT MAN, knowing that HEROS REWARD was there. He hit his horse right handed which caused SIGNATURE RED to shift in and hit HEROS REWARD, taking HEROS REWARD chance to win the race away.”

The issue for determination

• Did SIGNATURE RED interfere with HEROS REWARD? If so, should the horse be set back behind HEROS REWARD?

Analysis

12. The evidence, submissions and video replays, centered on whether HEROS REWARD had established a path between ESSENCE HIT MAN and SIGNATURE RED before that lane was obstructed.

13. Sheldon Russell the Jockey on HEROS REWARD was adamant that his horse was committed to the path in issue. Steward Lindberg’s note of that interview is in part: Sheldon stated, “He went for the hole and the winner came over.” Steward Newton’s note, “Sheldon Russell said he was not really sure, the outside horse made it tight; felt he “was sort of in there”.” In testifying at this Hearing, he stated, “I thought I had my horse’s head up in there.”

14. The series of photographs filed indicate slight if any deviation in course by SIGNATURE RED. They depict that at or about the bumping, SIGNATURE RED’S head was turned in slightly. Those photographs clearly show ESSENCE HIT MAN bearing out from the rail substantially and thereby closing the hole.

15. The video tapes offer no conclusive proof that the hole had been filled. They are more consistent with the conclusion that HEROS REWARD is just about to move into the hole when the bump occurred.

16. Jockey Luis Contreras on SIGNATURE RED testified that he thought his horse ran straight. It was turned in by the bump from the rear by HEROS REWARD. He heard no yell which might indicate danger. As a result of the bump, his horse lost some of its action but hung on to win. In his view there was room for a horse to go through until ESSENCE HIT MAN filled the hole by bearing out.

17. Jockey Jono Jones on ESSENCE HIT MAN described his horse tiring in the stretch and drifting out. He heard no yell. No claim of foul was made against him. Despite repeated suggestions in cross-examination, in his view, HEROS REWARD was “going in there” he was not “in there”. In his view, HEROS REWARD had not established a path when the hole closed.

18. Sheldon Russell on HEROS REWARD testified that in the stretch he committed his horse to the gap and in a split second it got smaller. He described bumping SIGNATURE RED from behind, being deflected into ESSENCE HIT MAN and back into SIGNATURE RED. In his opinion, the outside horse, SIGNATURE RED, had come in, closing his space and causing his horse to lose momentum. He was unable to regroup in time to have a chance to be second or possibly win. In his view, he had been fouled.

19. George Weaver, trainer of SIGNATURE RED, a long-time horseman with a background of experience in high profile stables testified as to his opinion of the proceedings. In his view, Contreras deliberately closed the hole moving his horse inside by right hand whipping and left hand rein action.

20. Steward William McMahon testified that a tiring ESSENCE HIT MAN bore out from the rail. HEROS REWARD which was overtaking ESSENCE HIT MAN on the outside moved away from ESSENCE HIT MAN which was in effect closing the hole to which HEROS REWARD was committed. In so moving toward the outside, HEROS REWARD made contact with the rear quarters of SIGNATURE RED. At that time SIGNATURE RED had moved in slightly. By reason of the contact, SIGNATURE RED was turned in more.

21. The Panel finds that ESSENCE HIT MAN which had been on top making the pace, tired in the stretch (and finished seventh). As the horse tired, it bore out from the rail. There had been a lane between ESSENCE HIT MAN and SIGNIFICANT RED. HEROS REWARD was committed to go down that lane but had not yet established that path. The lane closed, HEROS REWARD did not get through. As a result, HEROS REWARD lost momentum, was taken back and when clear, was taken to the outside to finish third.

22. The Weaver/Russell analysis is not consistent with the video and photographic evidence. Any deviation from a straight course by SIGNATURE RED was slight. The drifting out by HEROS REWARD was gradual but relentless. Based on that evidence coupled with the testimony of Contreras and Jones, the balance of probabilities is against the Weaver analysis. The proximate and effective cause of the lane closing was the drifting action of ESSENCE HIT MAN. That there was a slight bearing in by SIGNATURE RED did not constitute interference. What advantage would there be for the FIDDLERS PATRIOT interest to claim foul against ESSENCE HIT MAN which finished seventh?

23. On the basis of the entire evidence the Panel has concluded the interference claim against SIGNATURE RED must be dismissed. There is no finding of a foul. The order of finish as posted by the Stewards is confirmed.

Policy

24. The policy issue was raised as to whether or not parties not directly involved in the racing incident should have a right to appeal.

Firstly

25. There is no current prohibition.

Secondly

26. Those parties not directly involved in the incident may shelter under the umbrella provided by Section 11(7) RCA 2000.

“A person who considers oneself aggrieved by a decision of a person to whom the Commission has delegated a power ….. is entitled to a hearing by the Commission.’

Thirdly

27. That policy issue was not thoroughly addressed during this Hearing. Nevertheless no persuasive position in favour of the suggested policy change was advanced.

Fourthly

28. Policy issues relating to revision of the statute are for government. Policy issues related to revision of the Rules are for the Commission. This Panel deals with application of the Rule in issue. It does not deal with policy at any level.

Fifthly

29. The policy issue would involve the public interest aspect and the private interest rights of those whom may benefit or otherwise in consequence of the appeal result.

30. That does raise a related and interesting issue. Would the public interest be better served if as in other sports the ruling on the field is final? These are matters best left for another forum and another day. It is noted that the Appeal issue was the subject of comment in the Brenda Goodlet and Simon Husbands Decisions by Panels of the Commission.

DATED this 31st day of August 2011.

James M. Donnelly

Vice Chair