RULING NUMBER COM SB 001/2014
COMMISSION HEARING TORONTO, ONTARIO – JANAURY 22, 2014
NOTICE OF DECISION
IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF THE APPEAL OF ALAN RICHARDSON
Alan Richardson appealed against Ruling Number SB 45919.
Date of Hearing: January 22, 2014
ORC Panel Members: Anthony Williams, Vice Chair
Counsel for the Appellant: Robert Burgess, Q.C.
Agent for the Administration: David Stewart
The Panel denied the appeal but stayed the 3-day driving suspension.
A transcript with the Panel’s oral Reasons for Decision is attached to this Notice.
DATED at Toronto this 30th day of January 2014.
Steven Lehman
Executive Director
ONTARIO RACING COMMISSION
STANDARDBRED HEARING
IN THE MATTER OF THE RACING COMMISSION ACT, 2000, S.O. C.20 AND THE RULES OF STANDARDBRED RACING:
AND IN THE MATTER OF AN APPEAL AND REQUEST FOR HEARING OF ALAN RICHARDSON:
Held Before:
Anthony Williams Vice Chairman
These are an excerpt of the proceedings in the above mentioned matter held before The Ontario Racing Commission, Re: ALAN RICHARDSON, taken before Toronto Court Reporters, Suite 1410, 65 Queen Street West, Toronto, Ontario, at 10 Carlson Court, Suite 400, Toronto, Ontario, on the 22nd day of January, 2014.
Appearances:
Dave Stewart agent for the Ontario Racing Commission Administration
Robert Burgess, Q.C. for the appellant Alan Richardson
Hearing continued ...
MR. CHAIRMAN: Gentlemen, I am now prepared to give reasons for decision. I would first wish to say thank you to David Stewart on behalf of the Administration and Robert Burgess, counsel on behalf of the appellant for what I will describe as compact, however, thorough introduction of evidence and helpful submissions on areas that I was struggling with. This is an appeal from a Standardbred official ruling SB 45919 which imposed upon Alan Richardson a three day driving suspension and set the horse back for which he was driver from 1st to 5th. The date of the race was Friday, November 22nd, 2013 by chance exactly two months ago today. It was race three, a trot at Woodbine Raceway, one mile for a $15,000 purse. It was the second leg of the Autumn Series. The two horses which are the subject of this appeal are ROCK OF CASHEL starting as number 2 horse owned by Alan Richardson and Jeffery Ruch, driver and trained by Alan Richardson and the horse number 6 OZZY OZZY driven by Jody Jamieson. Fourteen notices of this hearing were sent to those persons who were considered to be affected by the appeal and potential ruling. I have had the benefit of hearing three witnesses, Jeff Minler, standardbred track judge, Jodie Jamieson, driver/owner and authorized agent and Jeffery Ruch, owner/breeder/bloodstock agent. All three gentlemen are experienced in their fields with impressive histories. All were viewed as credible by me as hearing officer. We have the benefit of videos from four vantage points, the upper pan, the front tower, the apex and the back tower.
The evidence of Jeffery Minler, in part, indicated that Jodie Jamieson had apparently not noticed the geese. The evidence of Jeffery Minler was also that Alan Richardson, at least originally, had not noted or at least made reference to the geese. I do accept the position of Mr. Burgess when he stated in his submissions it is what the horse saw not what the driver saw. Minler advised us that traditionally when a horse is spooked there will generally be an abrupt move or a head pop in contrast to what he described as the slow steady drift off line in this particular case. Jodie Jamieson also spoke of the reaction that he has experienced in relation to horses when they encounter something unanticipated. He spoke of quick movement, a jerk sideways and other actions that would lead him to believe that the horse was scared. These types of observations were not made by either Mr. Minler or Mr. Jamieson when they had the opportunity to view the videos. Mr. Jeffery Ruch on an analysis of one of the tapes spoke of the horse turning its head sideways. In relation to this particular proceeding it would appear to be common ground amongst the parties and certainly my opinion that we are in a hearing de novo or new trial. The original decision of the track judges are set aside and this will be a fresh hearing. It would appear that the rules that are engaged are Rules 22.05.01(a) and 22.09. Both advocates have kindly presented helpful information in relation to how those sections should be interpreted. In relation to admissibility of evidence there appears to be some difference of opinion as to what impact, if any, the three races out of six over a five year period where the horse ROCK OF CASHEL drifted to the outside might impact in relation to the findings that are to be made today. Although there is some evidentiary foundation through Jeffery Minler in relation to that particular topic it is my opinion that there is insufficient evidence to qualify as what is traditionally known as similar act or similar fact evidence and because the circumstances are rather incomplete I do not take those other drifts in adverse to the position of the appellant. There is even less foundation for the submission, at least in the evidence; the submission is quite proper, of bird, geese, dog or skunk impacting upon this particular proceeding. To fully understand what happened in this particular occurrence one would almost have to become a horse whisperer. The events occurred at a brisk pace. These magnificent creatures, the horses as opposed to the drivers, were moving at about 30 miles per hour. The position of the appellant is that what unfolded was an act of nature for which the driver bore no fault or responsibility. I lean towards the position that there may well have been a blend of driver fault in the sense that Alan Richardson may not have kept what is referred to in relation to driving matters of motor vehicles a proper lookout. However, two rather large geese were positioned on the track and as the horses approached at a brisk pace flew up and over the horses. There definitely was concurrent with that activity the drift to the right. So on a, not on a position of balance of probabilities to attribute fault to Alan Richardson in relation to this unanticipated occurrence but I do find that Rule 22.05.01(a) is an absolute liability offence and that the horse OZZY OZZY was compelled to change its path and pace and thus resulted in the horse losing its anticipated first place position. In view of the other consequences that will already befall Alan Richardson in relation to the loss of what might otherwise have been a share of the purse funds under the usual calculation it is my decision that I will seek to stay the three day driving penalty that was imposed upon Alan Richardson, in good faith by the panel of experienced track judges. The more troubling component is the application of Rule 22.09 and I thank both representatives for their further assistance as to interpretation of this particular rule. We know that ROCK OF CASHEL won the race. ROCK OF CASHEL was placed 5th as a result of the absolute liability violation of 22.05.01(a). There were unfortunate consequences for Jody Jamieson and the horse OZZY OZZY as a result of this particular infringement which led to the exclusion of the horse from the Autumn Series the next week. This rule would appear to have what may be described by some observers as unintended consequences that there would appear to be a rather harsh impact upon the ownership of the horse ROCK OF CASHEL in relation to the application of Rule 22.09 but following considerable concern about the application of this rule I am going to affirm the placing decision by the judges, the track judges that ROCK OF CASHEL will remain in the 5th place position as a result of the exercise or impact of that particular rule but again it would appear to have unintended consequences for the ownership group and that would be the decision. I anticipate neither party is seeking costs in relation to this proceeding and costs certainly would not appear appropriate from my preliminary view.
MR. STEWART: No, sir.
MR. CHAIRMAN: Anything further from either gentlemen?
MR. BURGESS: No.
MR. STEWART: No.
MR. CHAIRMAN: Thanks very much.
MR. BURGESS: Thank you very much.
MR. STEWART: Thank you.
MR. BURGESS: A very difficult case.
CERTIFIED CORRECT _________________________________
RAYMOND P. MACDONALD, B.A., CVR
Commissioner of Oaths