RULING NUMBER COM TB 022/2013

COMMISSION HEARING TORONTO, ONTARIO – OCTOBER 17, 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 CURRY KOBZA, DAVID COTEY and

SKYE CHERNETZ

Curry Kobza, David Cotey and Skye Chernetz appealed against Ruling Number TB 8222/13.

Date of Hearing: October 17, 2013

ORC Panel Member: Commissioner John W. Macdonald

Counsel for the Appellant: Frank Roth

Agent for the Administration: Neil McCoag

Counsel for John Ross (interested party) Dan McMahon

The Panel denied the appeal.

A transcript with the Panel’s oral Reasons for Decision is attached to this Notice.

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

Steven Lehman

Executive Director

ONTARIO RACING COMMISSION

THOROUGHBRED HEARING

IN THE MATTER OF THE RACING COMMISSION ACT, 2000, S.O. C.20 AND THE RULES OF THOROUGHBRED RACING:

AND IN THE MATTER OF AN APPEAL AND REQUEST FOR HEARING OF CURRY KOBZA, DAVID COTEY and SKYE CHERNETZ:

Held Before:

John Macdonald Commissioner

These are an excerpt of the proceedings in the above mentioned matter held before The Ontario Racing Commission, Re: CURRY KOBZA, DAVID COTEY and SKYE CHERNETZ, taken before Toronto Court Reporters, Suite 1410, 65 Queen Street West, Toronto, Ontario, at 10 Carlson Court, Suite 400, Toronto, Ontario, on the 16th day of October, 2013.

Appearances:

Neil McCoag, agent for the Ontario Racing Commission Administration

Frank Roth, counsel for the licensees Kobza, Cotey, Chernetz

Dan McMahon counsel for the interested party John Ross

Hearing continued ...

MR. CHAIRMAN: First of all, I should remind all those here, especially counsel, that this was a trial de novo. I listened as carefully as I could to the testimony and watched the videos a number of times and secondly, I want to thank counsel for their help and yes, to me it was clear, cogent evidence that it was there. I'm not sure, and I think Mr. Roth mentioned it, about the geometry when you get into the stretch and both horses, while they are in tandem as he mentioned, going down the track they are going at an angle and it would seem to me, although, I'm not a mathematician either, that if you are on the outside there is going to be a slight difference and that's because you are both going but you are both going on an angle and that's the difficulty I see here. The comment that the stewards didn't see a problem so they could initially put up the inquiry sign, which is not unusual. My understanding is that is usually done when there is something flagrant that they can see has happened on the track. In this case it would appear that Mr. Boulanger put the foul claim in before the stewards had a chance to really make their own determination but that hastened the decision as to what they could do. The thing that I found somewhat compelling is that we have a slight difference of opinion. Ms. Chernetz didn't feel there was any contact but the evidence was pretty clear that there was a lot of what has been described as brushing. It wasn't really like a bumping that you see in some races where it is more or less a flagrant foul. It was their opinion and it was pointed out by Mr. McMahon the steward that there was no steering with the reins to be able to guide the RUNNING BRIDGE horse to keep a more straight line rather than what has been described in the evidence as drifting out and obviously she wasn't going to jerk on the reins hard enough to cause the horse to come to a stop. Any slight motion to the left would have solved that problem, as was my understanding of the testimony. The question then was because they both had their heads down, as jockeys are doing, who was intimidating who and which horse did what, we are talking two year old fillies and there wasn't any evidence as to how they would react to either the reins being pulled or to having something different in the intimidation factor. We are not talking about aged horses where they are racing against younger horses. We are talking about two year old fillies. There was no evidence as to whether made a difference or not but frankly, I don't really know. The question of momentum was one that was considered but if it is only slight that would certainly made a difference in a race that was well run and was a matter of inches. Here we have evidence of Mr. Ross and Mr. Cotey as to what the difference might be. The thing that I found probably the most compelling is that there was no question about the drifting out. The evidence showed that whether it was from the three path to the six or the seven or whatever it was and we know from the evidence that the hitting with the left hand because she had no other choice because of how close they were that the horse that is alleged to have interfered it turned out, I think, did and kept going to the left and pushed the LEXIE LOU horse farther out to the right. In summary, I am going to decide that the appeal should be denied and that as Mr. McMahon pointed out that Rule 11.07 is the determinative rule here. That's when clear a horse may be taken to any part of the track. That's fine. This wasn't clear. If the horse swerves or is ridden to either side so as to intimidate or impede. It wasn't impede to the extent that there was bumping and somebody was knocked off stride but there was enough impediment to keep the second place horse from being able to go in a total straight line. It was on an angle and therefore I am going to deny the appeal, keep the placing as was decided by the Judges and the suspension of the three days, as I recall, will be upheld.

MR. MCMAHON: Thank you, sir.

CERTIFIED CORRECT:_________________________________

RAYMOND P. MACDONALD, B.A., CVR

Commissioner of Oaths