RULING NUMBER COM TB 019/2014
COMMISSION HEARING TORONTO, ONTARIO – DECEMBER 3, 2014
NOTICE OF DECISION
IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF THE APPEAL BY PAT PARENTE, THE LICENSEE
The Stewards disallowed a claim of foul and made no change to the order of finish in the Northern Dancer Stakes race at Woodbine on September 14, 2014. Pat Parente appealed against this decision.
Date of Hearing: December 3, 2014
ORC Panel: Elmer Buchanan, Chair Anthony Williams, Vice Chair Justin Fogarty, Commissioner
Counsel for the Appellant: Daniel J. McMahon Counsel for Rabbah Bloodstock LLC: Peter F.C. Howard Counsel for the Administration: Angela Holland
Decision: The appeal was dismissed
The Panel’s written Reasons for Decision are attached to this Notice.
DATED at Toronto this 5th day of January 2015.
______________________________ Steven Lehman Executive Director
REASONS FOR DECISION
OVERVIEW
The ninth edition of The Northern Dancer Stakes was held on Sunday afternoon, September 14, 2014, at Woodbine.
Nine thoroughbred racehorses competed for a purse of three hundred thousand dollars, over one and one-half miles, on turf.
The top three finished as follows:
(i) first place: Sheikhzayedroad program number: 8 jockey: Martin Lane trainer: David Simcock owner: Rabbah Bloodstock LLC Lessee, (“RB”);
(ii) second place: Dynamic Sky program number: 6 jockey: Joel Rosario trainer: Mark E. Casse owner: John C. Oxley;
(iii) third place: Reporting Star program number: 2 jockey: Justin Stein trainer Pat Parente owner: Copper Water Thoroughbred Company Ltd.
The Stewards posted the Inquiry sign after the race.
Stein lodged a complaint of foul (“COF”) against Sheikhzayedroad for interference in the stretch run.
On September 14, the Stewards denied the COF.
On September 19, Parente appealed against the Ruling.
On November 4, the Deputy Director issued a Notice of Hearing which was served upon the jockey, trainer and owner of each of the horses which finished in the top five.
December 3 was scheduled for the Hearing.
THE HEARING
On December 3, this matter was heard by a Panel of the ORC.
The Administration called two witnesses:
(i) Fenton Platts, Acting Senior Steward, ORC; (ii) Martin Lane, Jockey;
The Appellant called three witnesses:
(i) Russell Fernandes, Assistant Manager, Racing Operations, ORC; (ii) Justin Stein, Jockey; and (iii) Peter Goodale, Videographer
- Eight exhibits were entered into evidence:
Ex. 1, Factum, Administration; Ex. 2, Book of Documents, Administration; Ex. 3, Factum, RB; Ex. 4, Book of Documents, RB; Ex. 5, Amended Factum, RB; Ex. 6, Reference Materials from Original Factum, Appellant Ex. 7, Video of Race, Administration; and Ex. 8, Video of Race (split screen), Appellant.
- THE RULES OF ENGAGEMENT
(i) The Racing Commission Act
Objects
“5. The objects of the Commission are to govern, direct, control and regulate horse racing in Ontario in any or all of its forms.”
Powers
“7. The Commission has power, … (k) to hold hearings relating to the carrying out of its objects or powers.”
(ii) The Rules of Thoroughbred Racing
Urging
9.27.07 “… it is an offence for a jockey, or rider, or the person in control of the horse, to use the riding crop to hit or make contact with the horse as follows: a) …to raise their hand(s) above their shoulder; …”
Penalty
9.27.08 “Violation of … Rule 9.27.07 may result in any of the following penalties: a) Fine; b) Suspension; c) Placement; d) Disqualification; and/or e) Any other penalty as ordered.
Further particulars in respect to the penalties are provided in Policy Directive 4 - 2009, …”
Interference
11.07 “When clear, a horse may be taken to any part of the track, but if the horse swerves or is ridden to either side so as to interfere with, intimidate or impede any other horse, such horse may be disqualified.”
Discretion
11.12 Stewards are vested with sole authority to determine the disqualification of a horse ….”
Appeal
13.17 “An appeal is a request to review any decisions or rulings of the Stewards …. An appeal may deal with placings, penalties, interpretation of the rules, or other questions dealing with the conduct of racing.”
13.17.02 “An appeal lodged in accordance with Rule 13.17 must be based upon specific grounds which would warrant modification or reversal of the decision…”
(iii) Policy Directive No. 4 – 2009
Penalty Guidelines Rule 9.27
Placing
“Placing of a horse may be considered by the Stewards where the misuse of the riding crop causes interference with another horse or, in the opinion of the Stewards, there has been a flagrant disregard of these rules.”
(iv) The Legal Principles
The burden of proof rests upon the proponent.
The standard of proof is on a balance of probabilities.
The evidence must be “clear cogent and compelling”.
It is the cumulative effect of all the evidence which must meet the standard of proof.
THE EVIDENCE
(i) Fenton Platts (“Platts”)
Testimony
Platts said that:
- he was a former jockey
- he was also a former trainer
- he has been a Steward for eight years
- he is now Acting Senior Steward
- he has officiated between eight and ten thousand races
- he reviewed the upper pan and front tower colour videotapes of the stretch run
- he described Sheikhzayedroad as “gawking to the inside as he moves laterally out”
- he agreed that “there were four jumps” “before the wire” “once (the horse) starts to move laterally”
Notes
- “Stein does check
- (Reporting Star) appeared to have reached optimum placing
- no change to outcome as his horse is beaten 3rd
- no change of order
- JCOF disallowed.”
(ii) Martin Lane (“Lane”)
Testimony
Lane said that:
- he has been a jockey in seven thousand races
- he has between four and five hundred winners
- he has raced in England, Europe, Dubai and North America
- his first race at Woodbine was on September 14
- his horse bumped the horse ridden by Stein three jumps before the wire
- “Mr. Stein had to take hold”
- he apologized to Stein after the race
- Stein said “Don’t worry about it, there’s nothing you could have done.”
Notes of Stewards
Lane said:
- his “horse appeared to shy away from cameras inside the track”
- “just before the line”
- “had the race won already”
- “didn’t affect position”
(iii) Justin Stein (“Stein”)
Testimony
Stein said that:
- he has been a jockey for ten years
- Sheikhzayedroad “banged” into Reporting Star in the stretch run
- it “happened before the finish line”
- the interference “was not intentional”
- “I was already checking my horse”
- “I was taking a hold …”
- if Stein had not checked his horse: “I would have clipped heels. I go down. My horse goes down. I do not finish the race. The horse does not get its share of the purse money.”
- Dynamic Sky was also “interfered with”.
Stein was also asked as to whether a horse which had caused interference: Q. “… was ever not disqualified in ten years?” A. “No.” He later agreed that there have been races involving interference and “no penalty”.
Q. “Would you have won without the interference?” A. “I would say no. I was outrun.”
Stein agreed that he had said words to the following effect: “I was going to be third, but I had to check really hard” … “A big race like that, it’s hard to take a number down (disqualify a horse). It wasn’t going to change the outcome but I definitely got bothered”.
- THE POSITIONS OF THE PARTIES
(i) The Appellant
Amended Factum
“Relief sought: that the Appeal be allowed and the #8 horse ridden by Martin Lane be disqualified (for interference) and his horse be placed in order of finish behind #2 horse ridden by Justin Stein.”
Opening
The #8 horse fouled the # 2 horse. The jockey aboard #8 horse gained an unfair advantage from inappropriate urging of his horse in violation of Rule 9.27.07.
Closing
“The Rules are not being applied uniformly”. The # 8 horse should be placed behind #2 horse.
(ii) The Administration
Factum
(a) “The Ruling was both fair and reasonable in the circumstances”; (b) “The Stewards properly applied the Rules of Racing”; and (c) The Panel should “uphold the Ruling TB 8962/2014, dismiss the appeal and confirm the order of finish.”
Opening
The Stewards “exercised their discretion on a reasonable basis.”
Closing
There was “no clear and palpable error” made by the Stewards in their Ruling.
(iii) Rabbah Bloodstock LLC
Factum
“it is obvious that the decision was exercised both with appropriate care on an informed basis and correctly.”
Opening
The Rules were applied consistently. The interference occurred “a few jumps short of the wire.” The interference “did not affect the finish.”
Closing
The claim by the Appellant of an urging violation was a “distraction display” in which “the plover feigned a broken wing to draw the hunter from the nest.”
- THE ISSUES
(i) Did Sheikhzayedroad interfere with Reporting Star? (ii) If the answer is yes, did the interference alter the finish of the race? (iii) Must every act of inappropriate urging be the subject of sanction? (iv) Did the Stewards exercise their discretion in a reasonable manner? (v) Do the grounds of appeal warrant a modification or reversal of the decision?
- THE STEWARDS
(i) The Hearing
On September 14, the Stewards considered the following before making their decision: (a) their observations of the live race; (b) the videotape of the stretch run from the front tower and pan cameras; (c) their interview of Lane; (d) their interview of Rosario; and (e) their interview of Stein.
(ii) The Ruling
In The Matter of “Sheikhzayedroad”:
“Take Notice that following the running of the sixth race (6th) on September 14, 2014, The Northern Dancer Stakes, the Stewards posted the inquiry sign and the Jockey aboard #2 Reporting Star (3rd), Justin Stein, lodged a claim of foul against the #8 “Sheikhzayedroad” (1st) for alleged interference approaching the finish.
The Stewards, having utilized all camera angles at their disposal and speaking with the jockeys involved, disallowed the claim of foul and made no change to the order of finish.”
- THE PANEL
(i) The Hearing
On December 3, the Panel considered the following before making its decision: (a) the same information which had been presented to the Stewards on September 14; and in addition (b) the notes of Stewards McMahon, Platts and Stewart from the Hearing; (c) their Ruling of September 14; (d) the exhibits including the split screen video; (e) the sworn testimony of Jockeys Lane, Rosario and Stein; and (f) the submissions of counsel.
(ii) The Discussion
(a) The Danger The alert defensive reaction by Stein in checking his horse during the interference avoided potential danger at the finish.
(b) The Rule TB Rule 11.11 required that Stein lodge an objection with the Stewards after he was fouled. Stein complied with the Rule.
(c) Urging The Amended Factum dated November 26 expressed concern about an urging violation by the jockey of the winning horse. The raising by Lane of the riding crop, above his shoulder, before making contact with his horse, was neither the cause of, nor a contributing factor to the interference in the stretch run, nor was it a flagrant disregard of the Rules. The placing of a horse was a discretionary penalty available to the Stewards. The placing of the winning horse was not justified in this race.
(iii) The Panel’s Decision
The cumulative effect of the evidence persuaded the Panel, on a balance of probabilities, of the following: (a) Sheikhzayedroad interfered with Reporting Star during the stretch run; (b) this interference did not improve the placing of the winning horse; (c) this interference did not alter the order of finish; (d) the urging breach did not alter the order of finish, nor did it warrant any penalty; (e) the Appeal did not warrant reversal or modification of the Ruling of the Stewards
(iv) The Result
(a) the Ruling of the Stewards of September 14 was upheld (b) the Appeal was denied; (c) no other sanctions were imposed; (d) there was no order as to costs.
DATED this 5th day of January 2015.
Justin Fogarty
__________________________ ________________________ __________________________ Elmer Buchanan Anthony Williams Justin Fogarty Chair Vice Chair Commissioner