RULING NUMBER COM SB 024/2015

COMMISSION HEARING TORONTO, ONTARIO – OCTOBER 5, 2015

NOTICE OF DECISION

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

STACEY REINSMA

Stacey Reinsma, appealed against Ruling Number SB 46543 issued on September 23, 2015.

Date of Hearing: October 5, 2015

ORC Panel: Anthony Williams, Vice Chair

Representative for the Appellant: Self-represented

Agent for the Administration: Craig Walker

Decision:

The Panel denied the appeal.

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

DATED at Toronto this 22^nd^ day of October 2015.

______________________________

Jean Major

Executive Director

ONTARIO RACING COMMISSION

THOROUGHBRED HEARING

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

AND IN THE MATTER OF AN APPEAL AND REQUEST FOR HEARING OF STACEY REINSMA:

Held Before:

Anthony Williams Vice Chair

These are an excerpt of the proceedings in the above mentioned matter held before The Ontario Racing Commission, Re: STACEY REINSMA, taken before Toronto Court Reporters, Suite 1410, 65 Queen Street West, Toronto, Ontario, at 10 Carlson Court, Suite 400, Toronto, Ontario, on the 5th day of October, 2015.

Appearances:

Craig Walker,

Agent for the Ontario Racing Commission Administration

Hearing continued ...

MR. CHAIRMAN: Thank you. Please be seated. This is the ruling. The background: on September 21^st^, 2015 the Ontario Sire Stakes Gold Event leg number 4 was held at the Grand River Raceway at Elora, Ontario. Six two year old fillies competed over a distance of one mile at a pacing gait for a purse of $105,000.00 FREE SHOW the number 2 horse was the race winner. GOODWILL HANOVER the number 4 horse was 2^nd^, HEAVENLY HILL the number 1 horse was 3^rd^, LADY MARINA the number 5 horse was 4^th^. HEAVENLY HILL was driven by James MacDonald, trained by David Menary and owned by Tom Hill. LADY MARINA was driven by Jack Moiseyev trained by Stacey Reinsma and owned by Stacey Reinsma. The Judges posted an inquiry after the race. The Judges reviewed all camera angles for the 2^nd^ race. The Judges determined that two rules of racing were in play, ORC rule 18.08.02 which relates to going inside the pylons when not forced and ORC rule 22.05.02.2(iii) using the open stretch, must have complete clearance of the pylons. The Judges delivered a ruling once notified of the proposed appeal as follows and I quote: “HEAVENLY HILL did not gain an unfair advantage and therefore did not violate the above rules” referring to 18.08.02 and 22.05.02.2(iii). This ruling is found in the disclosure book Exhibit 1 at page 4. Notice of Appeal was filed on behalf of Stacey Reinsma on September 22^nd^. This appeal is against the finding by the Judges that HEAVENLY HILL did not violate the passing lane rule in the home stretch or the pylon rule. If a violation of either rule is found the appellant Stacey Reinsma seeks a placing of HEAVENLY HILL behind LADY MARINA. A Notice of Hearing was issued by the Commission which set today Monday, October 5, 2015, 2:00 in the afternoon for the hearing of the appeal. The hearing: Craig Walker appeared as representative for the Ontario Racing Commission. Mr. Walker called two witnesses, David Stewart Associate Race Official and James MacDonald the driver of HEAVENLY HILL. Kenneth Middleton appeared as the representative for Stacey Reinsma. Five exhibits were entered into evidence, Exhibit 1 Book of Documents, Exhibit 2 a nine page package which includes two Standardbred rule excerpts, one from 2001 and one from 2005 and excerpts in seven rulings. Exhibit 3 was the DVD of the race, Exhibit 4 a VHS cassette and Exhibit 5 a USB stick which we are advised means universal serial bus. The track: Grand River Raceway is a half mile track. The raceway with the approval of the Commission has been extended, the width of the home stretch has been extended, inward in relation to the rest of the track and in a situation of this nature where the homestretch is expanded section 22.05.02.2(i), (ii) and (iii) apply and in this particular case part (iii) horse using the open stretch must first have complete clearance of the pylons. The video: the video of the second race was transferred to DVD from a VHS format for presentation at this hearing. Technical difficulties led to the playing of Exhibit number 5 the USB. The video displays in full colour without sound all shots of the race. The stretch drive appears to have lasted approximately nine seconds. The stretch drive is shown from four camera angles as follows: upper pan, front tower, back tower and lower pan. The front tower would appear to present the best view of the final turn and the start of the home stretch. The rules of engagement: the rules of engagement which apply to this hearing are as follows. This is a trial de novo or new trial where the ruling of the Judges remains outstanding subject however to being reversed by the Commission upon evidence called afresh or by entirely new evidence. Burden of proof is on the appellant. Standard of proof is on a balance of probabilities and the evidence must be clear, cogent and compelling. The essential elements of the rules are as follows: ORC rule 18.08.02 would appear to have a single essential element. If a horse while on stride or part of the horse’s sulky that leaves the racecourse by going inside the pylons which constitutes the inside limits of the course when not forced to do so as a result of the actions of another driver and/or horse shall be in violation of this rule. It would appear from the evidence that there was a violation of the first portion of this rule that HEAVENLY HILL or the left wheel of her sulky left the racecourse by going inside the single pylon. If that single essential element is made out, which in this proceeding it appears to have been, one must move to rule 18.08.02(c)which reads as follows: “If in the opinion of the Judges a horse while in stride or part of the horse’s sulky goes inside a pylon(s) and that action gave a horse an unfair advantage over other horses in the race or the action helped improve its position in the race the horse may be placed at the discretion of the Judges.” ORC rule 22.05.02.2(iii) has a single essential element and I quote (iii): “Horses using the open stretch must first have complete clearance of the pylons.” In this case as well it would appear that HEAVENLY HILL did not have complete clearance of the pylons, either having struck the red pylon or having gone inside the pylon. If there is an apparent violation of 22.05.02.2(iii) the Judges and Commission panel on appeal must then consider rule 22.09 which states, or at least the relevant portions, “in the case of violation of any rules the offending horse may be placed back one or more positions in that dash.” ORC rule 22.09 is a penalty of a discretionary nature. What are the issues in this case. There would appear to be three. Did HEAVENLY HILL violate ORC rule 18.08.02, did HEAVENLY HILL violate ORC rule 22.05.02.2(iii) and finally if the answer to either question one or question two or both is yes is a placing of HEAVENLY HILL behind LADY MARINA in the order of finish appropriate in view of all of the circumstances. Decision: did HEAVENLY HILL violate ORC rule 18.08.02 by going inside the pylons. It would appear that the answer to that question is yes. Question two, did HEAVENLY HILL violate Standardbred rule 22.05.02.2(iii) horses using the open stretch must first have complete clearance of the pylons. It would appear that the answer to question two is yes. Question 3, is a placing of HEAVENLY HILL behind LADY MARINA in the order of finish appropriate in all of the circumstances. The Judges determined with relation to 18.08.02(c) that the sulky of HEAVENLY HILL which went inside a pylon did not give the horse HEAVENLY HILL an unfair advantage over other horses, in particular LADY MARINA, in the race and the action by HEAVENLY HILL by going inside a pylon in the opinion of the Judges did not help improve its position in the race. The Judges in their discretion decided that no placing was appropriate. In relation to rule 22.09, use of discretion for the violation of 22.05.02.2(iii) it is apparent that HEAVENLY HILL violated the third prong of the passing lane rule. HEAVENLY HILL qualifies as the offending horse under 22.09. The placing of a horse for a violation of any rule, including the oft quoted rule 22, is not mandatory. The placing of a horse is a matter of discretion. Not all breaches of the rules will result in a placing. The Judges in relation to 18.08.02 based their ruling upon the fact of no advantage, as referred to in the notes of David Stewart and based upon the finding of no unfair advantage in relation to the ruling of the three Judges. Use of discretion necessarily involves a consideration of all of the circumstances in the race. These circumstances may include but are not limited to, the following; the position of the offending horse relative to the other horses in the stretch drive, the severity of the breach, what portion of the horse, sulky or both intruded into prohibited territory, the duration of the breach, the distance travelled in breach, the frequency of the violation, safety considerations, advantage to an offending horse, disadvantage to a non-offending horse or horses and a fair chance to contest the race. 18.08.02 is a breach by HEAVENLY HILL of the any pylon rule. Breach of 22.05.02.2(iii) was a breach of the red pylon rule highlighted by Mr. Middleton in his effective submissions. I am persuaded on a balance of probabilities that the Judges properly exercised their discretion in relation to their finding in relation to rule 18.08.02 and their consideration of subsection (c) that a placing of HEAVENLY HILL was not appropriate. The two conditions which are set out for the Judges’ consideration are did the offending horse gain unfair advantage over other horses and did offending horse by its action improve its position in the race. Both questions were answered no. It is my opinion that portion of the Judges’ ruling is upheld. A further question is did the breach of section 22.05.02.2(iii) should that breach attract a placing under rule 22.09, the discretionary provision which applies in the case of interference, collision or violation of any rule. It is understandable that the Judges would consider as part of their decision in relation to the use of 22.09 the guidance set out in subsection (c) of 18.08.02 as to whether there was an unfair advantage gained by the offending horse or whether the offending horse helped improve its position. Further evidence was provided by David Stewart that not only was there no unfair advantage and no improvement of position there was no early jump on the passing lane and that LADY MARINA entered the stretch drive in 3^rd^, or pardon me, HEAVENLY HILL entered the stretch drive in 3^rd^, HEAVENLY HILL reached the finish line in 3^rd^, the trailing horse in an outside lane LADY MARINA started the stretch drive one length behind HEAVENLY HILL and ended the stretch drive one length behind HEAVENLY HILL. Again there is no guidance set out in relation to how to apply within the rule book 22.05.02.2 or in directives or in precedents. Judges must determine each case in such manner as they think is within the best interests of racing. I am persuaded on a balance of probabilities that the exercise of the Judges’ discretion not to place HEAVENLY HILL behind LADY MARINA in this particular case, this particularly challenging case, was indeed appropriate in view of all of the circumstances. The result is that the appeal is denied and I thank all of you for your participation on this difficult matter.

CERTIFIED CORRECT:_________________________________

RAYMOND P. MACDONALD, B.A., CVR

Commissioner of Oaths