Alec Fehr v. Ontario Racing Commission, 2013 CanLII 61198

RULING NUMBER COM TB 014/2013

COMMISSION HEARING TORONTO, ONTARIO – SEPTEMBER 19, 2013

NOTICE OF DECISION

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

AND IN THE MATTER OF THE APPEAL OF ALEC FEHR

Alec Fehr appealed against Ruling Number TB 8181/13.

Date of Hearing: September 19, 2013

ORC Panel Members: Chair Rod Seiling

Counsel for Appellant: Daniel McMahon

Agent for the Administration: Gunnar Lindberg

The Panel allowed the appeal.

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

DATED at Toronto, Ontario, this 24^th^ day of September 2013.

Steven Lehman

Executive Director

REASONS FOR DECISION

Overview

1Licensee Alex Fehr appealed TB Ruling No. 8181/13 dated August 5, 2013 wherein the horse, Ultimate Destiny, was declared a non-starter in the 8^th^ race at Woodbine on August 3, 2013 on the basis that it received an unfair advantage at the start of the race.

2An oral decision, restoring the order of finish in the race, was rendered thereby granting the appeal with written reasons to follow.

3These are those reasons.

Background

4Ultimate Destiny was entered into the 8^th^ race, the Seagram Cup Stakes, with a purse of $150,000 by owner, trainer Alex Fehr. The race was held at Woodbine on August 3, 2013 with the horse drawing the number 5, post position. Ultimate Destiny finished 2^nd^ in the race.

5Prior to the start of the race, the right gate for the number 5 stall opened prematurely. Starter, Ian Ross, was at a loss to explain what might have caused the gate malfunction. The left gate did not open thereby ensuring that there would not be room for a horse to get through.

6Undisputed testimony confirmed via the Equibase chart was led that Ultimate Destiny “got away” 5^th^ (Ex. 1).

7The Stewards posted the inquiry sign and following their normal post-race procedures declared the horse a non-starter on the basis that the horse received an unfair advantage.

8Steward, William McMahon, submitted that the decision was made by the Stewards because the gates opened early and that the horse had the opportunity to leave early.

Issue

9Did the horse, Ultimate Destiny, gain an unfair advantage by leaving early from the #5 position in the 8^th^ race at Woodbine on August 3, 2013? Should a horse be penalized just because there was an opportunity to gain an unfair advantage notwithstanding the evidence is clear that it did not take that advantage?

Reasons for Decision

10Ultimate Destiny, based on the evidence, did not gain an unfair advantage regarding the start of the 8^th^ race at Woodbine on August 3, 2913. Only the right hand gate opened prematurely. The left gate remained in its closed position. Therefore, the horse could not leave early. The Equibase chart lines confirm that fact, the horse “got away” 5^th^.

11Opportunity cannot and should not be the basis for the declaration of a rule violation by Commission officials. To be judged guilty of a Rule of Racing one must have committed that rule violation. It is reasonable on a basis of probabilities that is the only conclusion one can make in such a situation.

12Reference was made to the Fifty Proof matter (TB Ruling No. 6626/10) wherein that horse was ruled that it did not gain an unfair advantage with the premature opening of its gate at the start of the race. Precedents can and are important. However, they must be judged against the facts at issue before the Panel hearing the matter. In this case, that matter is relevant only in so much as to point out that a gate can open early and as long as the horse does not leave early there was no “unfair advantage”. That was not the case in this matter.

13The Panel recommends that the Commission should review its policy on the premature opening of the starting gate. This includes what seems to be an automatic disqualification to whether the horse’s number stands depending on its place of finish.