Carolyn Costigan v. Administration of the ORC, 2012 CanLII 92354

RULING NUMBER COM TB 012/2012

COMMISSION HEARING TORONTO, ONTARIO – OCTOBER 2, 2012

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

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

THOROUGHBRED LICENSEE CAROLYN COSTIGAN

On September 15, 2012, the horse, Nancy O (IRE), participated in the 6th race of the Natalma Stakes, and finished 3rd. At all material times, Carolyn Costigan (“COSTIGAN”) trained the horse, Nancy O (IRE).

On September 16, 2012, COSTIGAN attended at the Stewards’ office and appealed the 6th race on September 15, 2012 on the grounds that the #7 horse, Spring Venture, interfered with Nancy O (IRE).

Following a review of the film, the Stewards issued Ruling Number TB 7787/12 wherein they held that “the incidental contact at the start did not warrant a placing.”

On September 16, 2012, COSTIGAN filed a Notice of Appeal.

On October 2, 2012, a Panel of the Ontario Racing Commission (“ORC”) consisting of Chair Rod Seiling, Commissioner John Macdonald, and Commissioner Anne Walker was convened to hear this matter.

COSTIGAN represented herself. Harvey Swartz was granted standing as legal counsel on behalf of the owners of the horse, Spring Venture. Jennifer Friedman appeared as counsel for the Administration of the ORC.

Upon hearing the testimony of William McMahon, Patrick Husbands, and Mark Casse, reviewing the exhibits filed, including the video of the race, and upon considering the submissions of COSTIGAN and counsel, the Panel denied the appeal with written reasons to follow.

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

DATED at Toronto this 5th day of October, 2012.

BY ORDER OF THE COMMISSION ____________________________

Steve Lehman

Acting Executive Director

REASONS FOR DECISION

Overview

1Licensee, Carolyn Costigan, as trainer of the horse, Nancy O (IRE), filed an appeal on September 16, 2012, regarding a decision of the Stewards (TB 7787/12) issued that same day emanating from the 6th race at Woodbine Racetrack on September 15, 2012, wherein the contact at the start of the race was ruled a non-violation of the Rules of Racing. An oral decision was delivered denying the appeal with written reasons to follow. These are those reasons.

Background

2Jennifer Friedman represented the Ontario Racing Commission (ORC) as legal counsel, Harvey Swartz was granted standing as legal counsel representing Gary Barber and Stoneway Farms, the ownership interests of the horse, Spring Venture, while Ms. Costigan represented herself.

3A video review of the start of the race clearly showed there was contact between Nancy O (IRE) (#6) and Spring Venture (#7). The contact occurred as a result of Spring Venture moving in at the start. Ms. Costigan submitted that the contact impeded her horse and that the Stewards should have made a placing call.

4That movement in was the result of Nancy O (IRE) getting a slower start according to Steward William McMahon, Jockey Patrick Husbands and Trainer Mark Casse, with the latter two associated with Spring Venture. Horses have a tendency, especially younger horses such as in the race in question, to move towards unoccupied space.

5Mr. McMahon, confirmed that there was contact between the two horses but that the contact was incidental and therefore did not warrant any placing change.

6No claim of foul was registered by the jockeys involved, Patrick Husbands riding Spring Venture and David Moran aboard Nancy O (IRE). Mr. Husbands was of the opinion the contact did not warrant registering a claim of foul with the Stewards. That opinion was shared by Mark Casse, the trainer of Spring Venture.

7Mr. Swartz was of the opinion that the appeal filed by the appellant was frivolous and that the ORC should treat it as such under S 11. 8 of the Racing Commission Act.

8Ms. Costigan did not file an objection following the race, her jockey did not lodge a claim of foul following the race nor did she call Mr. Moran as a witness. The day following the race, the Stewards conducted a video review of the race for Ms. Costigan and Mr. Moran wherein they confirmed their opinion that the contact was incidental and did not merit a placing. On questioning by Ms. Costigan, Steward McMahon responded that even if a claim of foul had been entered prior to the race going “official”, it would not have caused the Stewards to change their minds.

9Steward McMahon, Jockey Husbands and Trainer Casse testified that Mr. Moran did not have to check his horse and that he continued to ride his mount throughout the race.

10Ms. Costigan attempted to enter into evidence a CD of the race which she claimed showed the pan and head shots synchronized. She submitted that this video would prove her horse did not leave the gate late but was bumped by Spring Venture with the bump sufficient to impede her horse and therefore result in a placing.

11Mr. Swartz objected on the basis that he had just been provided a copy and he had not had time to review as required by the rules and that Ms. Costigan had not brought with her the person who could testify and be cross-examined as to its accuracy. The Panel did allow the CD to be entered based on the rules of evidence and that its accuracy could not be certified.

Issue

12Was the contact between the horses, Nancy O (IRE) and Spring Venture, sufficient to warrant an interference ruling on Spring Venture?

Reasons for Decision

13Interference matters are by their very nature, subjective. It is also well accepted that thoroughbred race horses on leaving the gate may come into contact with one another at the start of the race, particularly 2-year-olds. In determining the outcome of this contact, the need to rely on the Stewards who viewed the race live, the video of the race, the jockeys who rode in the race and the connections to the horses in the race is obvious. What is not as obvious is the extra reliance panels should and do place on the testimony of the Stewards who viewed the race live. As per the testimony of Steward McMahon, viewing the race live was helpful in this matter.

14The Panel accepts the view of the Stewards that the contact was incidental and did not warrant a placing change. That view was supported by Jockey Husbands and Trainer Casse. There was no evidence that Jockey Moran had to check his horse at the point where the contact occurred giving more proof to the view that the contact was incidental and did not warrant a placing. The video also shows Nancy O (IRE) coming out behind Spring Venture and thus creating room for Spring Venture to move in while at the same time there was pressure from the inside horses on Nancy O (IRE).

15Ms. Costigan did not offer any new evidence nor was she able to demonstrate that the Stewards misinterpreted the Rules. The Panel notes she did not give evidence herself. Furthermore, the panel drew a negative inference from the fact that she did not call her own jockey as a witness leading to the reasonable conclusion that he was not interfered with as suggested by Ms. Costigan. The video shows Mr. Moran rode his horse the whole race and did not check her up at any point.

16Regarding the request for a frivolous appeal ruling against the appellant by Mr. Swartz, the Panel does not share his opinion. The Panel also notes that Mr. Swartz was not in compliance with the Commission's rules regarding the filing of a factum by legal counsel with his factum arriving the day before the Hearing.