IN THE MATTER OF THE ONTARIO RACING COMMISSION ACT, 2000,
AND IN THE MATTER OF AN ORDER OF IMMEDIATE SUSPENSION
AND NOTICE OF PROPOSED ORDER TO REVOKE
THE LICENCE OF JACQUES BRUYERE
Standardbred Owner/Driver/Trainer Jacques Bruyere (509521) requested a hearing into the Deputy Director’s Order of Immediate Suspension and Notice of Proposed Order to Revoke his license, dated September 22, 2003, as an owner, driver and trainer.
On April 8, 2004, Vice Chair Larry Todd, Commissioners Bernard Brennan, DVM, and Patricia Bullock of the Ontario Racing Commission convened to hold the hearing.
Donald C. Plaunt appeared on behalf of Mr. Bruyere and Tim Snell appeared on behalf of the Deputy Director.
Upon hearing the testimony of Troy Moffat, Patricia Webb, Dr. Bruce Duncan, DVM, upon reading the exhibits, and upon hearing the submissions of the parties, the Ontario Racing Commission ordered that the Order of Immediate Suspension and Notice of Proposed Order be set aside and the following particulars substituted:
Mr. Bruyere’s license is suspended for three years from the date of this Ruling. Until the expiry of this suspension, Mr. Bruyere is prohibited from participating directly or indirectly in racing.
The reasons for decision are attached to and form part of this ruling.
DATED this 15th day of April 2004.
BY ORDER OF THE COMMISSION
Don Bourgeois
Acting Executive Director
REASONS FOR DECISION
This matter was heard by a panel of the Commission comprised of Commissioners Brennan and Bullock, along with Vice Chair Todd on April 8, 2004. This hearing took the format of a request for a hearing as a consequence of a Notice of Proposed Order under s.22 of the Racing Commission Act, 2000, under the hand of the Deputy Director of the Ontario Racing Commission dated September 22, 2003.
The Deputy Director on the date aforesaid in addition to the Notice of Proposed Order to Revoke the licence of Mr. Bruyere as a trainer, driver and owner further ordered an immediate suspension of Mr. Bruyere’s licence pursuant to the provisions of s.23 of the Racing Commission Act.
The text of the Order of Immediate Suspension and Notice of Proposed Order to Revoke Mr. Bruyere’s licence along with Reasons and detailed Particulars from the Deputy Director is found at Tab 1 of Exhibit 1 in this proceeding.
At the hearing of this matter, Mr. Bruyere was represented by D.C. Plaunt and the Administration by Tim Snell.
It has to be noted that this same panel on January 29, 2004, heard and disposed of a Notice of Proposed Order by the Deputy Director similarly dated September 22, 2003 against licensee, Donald Gillis. In that proceeding, Mr. Bruyere gave evidence through an interpreter. At this hearing, counsel for Mr. Bruyere and the Administration tendered to us a transcript of the proceedings on January 29, 2004 involving licensee, Donald Gillis. It was agreed by counsel that Mr. Bruyere’s evidence in the January 29th hearing of Mr. Gillis was to be his evidence before us in this particular proceeding.
Accordingly, the entire transcript of the proceedings of licensee Donald Gillis as well as an excerpt from that involving just the evidence of Jacques Bruyere were together made Exhibit 2. Additionally, we received as exhibits, materials contained in Exhibit 3, being reference letters and confirmation regarding the status of Mr. Bruyere’s current income, both as to origin and quantum.
In support of the proposed Order, the Administration called investigator Troy Moffatt, Judge Patricia Webb, and Dr. Bruce Duncan. Mr. Plaunt on several occasions through the Administration’s case confirmed that it would be appropriate for Mr. Snell to substantially lead his witnesses through their examination-in-chief given that there was very little issue or controversy as to the facts underlying the Notice of Proposed Order to Revoke.
FACTS
The evidence before us indicates that Jacques Bruyere is a 57-year-old licensed owner/trainer and driver. The evidence further confirmed that Mr. Bruyere has been in the standardbred horse business since his teenage years. We do note that, until the incident at hand, Mr. Bruyere appears to have no prior record of any offences with the Ontario Racing Commission. This evidence was put to us in a joint submission agreed upon by counsel.
Mr. Bruyere was the trainer of record and trainer in fact of a four-year-old pacing mare, Run For It, in July of 2003. This horse had raced on July 6, 2003 at Flamboro Downs and was drawn in again to race on July 13th at the same track.
The evidence indicates that on July 11, 2003, Mr. Bruyere, as the trainer and party with care, custody and control of Run For It, caused or assisted in the insertion of a nasal gastric tube through the nose of Run For It. We find as a fact that Mr. Bruyere intended that this nasal gastric tube go through the nose and oesophagus to the stomach of his standardbred racehorse.
Unfortunately, the post-mortem evidence would indicate that Mr. Bruyere caused and/or assisted in the passage of a nasal gastric tube down the trachea and into the lungs of Run For It. After the insertion of the tube into the lungs, as aforesaid, a significant quantity of fluids were infused into the lungs of Run For It, causing the horse almost immediate and significant distress.
This distress led to Mr. Bruyere calling a veterinarian who advised him to transport the horse immediately to the Ontario Veterinary College of the University of Guelph. Mr. Bruyere, to his credit, followed this direction from Dr. Hennessey and transported Run For It forthwith to the Ontario Veterinary College. Unfortunately, attempts to save Run For It failed and she was euthanized at the Ontario Veterinary College late on the afternoon of July 11, 2003.
The post-mortem investigation indicated the presence in her lungs of some 5 to 6 litres of water mixed with electrolytes, vitamin C and bicarbonate. In short, Mr. Bruyere, while attempting a stomach drench, essentially drowned his racehorse. Mr. Plaunt did acknowledge on behalf of Mr. Bruyere on two occasions that Run For It had obviously died “in agony”.
ANALYSIS
Mr. Bruyere, through his counsel in submissions, accepted that those grounds for the Proposed Order that sounded in a violation of Rule 6.27, i.e. knowingly misleading investigators and/or judges, were valid and proven. Mr. Plaunt urged upon us the fact that Mr. Bruyere had already been suspended under the Deputy Director’s Order for immediate suspension for almost eight months already.
The second substantial underpinning for the Notice of Proposed Order related to the death of Run For It and whether the causation of this was “an act of cruelty or neglect to a horse” within the context of Rule 6.22 of the Rules of Standardbred Racing. Mr. Plaunt urged us to conclude that there cannot be cruelty within the context of Rule 6.22 without intention on the part of Mr. Bruyere. He argued that obviously Mr. Bruyere did not intentionally drown a standardbred racehorse in his care.
In this respect, it has to be noted that one of the four essential legs of the Mission Statement of the Ontario Racing Commission is to ensure that our regulation of the horse racing industry in Ontario “protects the health and enhances the safety of the horse…”
Furthermore, this Commission in prior decisions has expressed its unwavering objective of taking steps to protect the racehorse participants in the industry. This Commission has, likewise, stated that a racehorse deserves kind, compassionate and caring treatment in that the horse has to rely upon the care, consideration and respect of its handlers. As Chair Sadinsky had noted in Re: Hastie [2000] O.R.C.D. NO. 37 (S/B 192(a)/2000), the obligation to attend to the welfare of the racehorse participants in the industry is “a trust that is fundamental”. We unequivocally accept this proposition and reconfirm its applicability in respect of our deliberations in the matter at hand.
The following evidence given by Mr. Bruyere himself must be considered in our decision:
(a) Mr. Bruyere indicates that he was attempting to treat Run For It for tying up. However, we note that the treatment was taking place only two days before Run For It was entered in a race a Flamboro Downs. Additionally, Mr. Bruyere caused Run For It to be tubed in 2002 for perhaps half of Run For It’s ten to twelve races under his trainership.
(b) These multiple nasal gastric tubings were not conducted by a veterinarian. In fact, the evidence was specific that it was “just people who worked” in the barn that assisted and/or effected the nasal gastric tubing with or for Mr. Bruyere.
(c) Lastly, in the subject tubing event and in all prior tubings of Run For It, Mr. Bruyere “was always there” and exercising his supervisory role as the trainer of Run For It.
It has to be noted that no horse deserved the fate of Run For It. The clinical notes at the University of Guelph indicate as follows:
“On presentation, the filly was in obvious respiratory distress. She was sweating profusely, was hanging her head to the ground, and was struggling to breathe.”
“Chest radiographs were taken. They revealed complete obliteration of the ventral three-quarters of the lung fields on both the right and left lungs.”
“Due to the continuing deterioration of Run For It, and the extremely poor prognosis for survival, euthanasia for humane grounds was elected by the owner.”
Both Mr. Snell in responding to our queries in submissions and Mr. Moffatt in his evidence indicated to us that there is no specific rule in the Rules of Standardbred Racing dealing with nasal gastric tubing of standardbred racehorses.
In this respect, the evidence of Dr. Bruce Duncan was of substantial assistance to the panel. Mr. Plaunt was kind enough to acknowledge the significant length and breadth of Dr. Duncan’s credentials and qualifications in the horse racing industry. Dr. Duncan was very specific that nasal gastric tubing, even if properly implemented, can cause damage to the nose, oesophagus and stomach of the horse if the tubing is conducted on an extended or regular basis.
We accept the opinion of Dr. Duncan that the introduction of a nasal gastric tube and the subsequent infusion of fluids through this tube is part of the practice of veterinary medicine which should not be done often or regularly, such as in a regular pre-race regime.
We further note Dr. Duncan’s unchallenged evidence that a horse with 6 litres of fluid in its lungs would suffer great pain and distress given that the oxygen levels in its blood would be too low to sustain life.
With respect to Mr. Bruyere’s treatment of Run For It, we to take cognizance of Dr. Duncan’s further and troubling evidence as follows:
(a) a significant amount of nasal gastric tubing is done in the racehorse industry by others than a veterinarian.
(b) nasal gastric tubing is done in the racing industry “on a regular basis”; and
(c) the majority or preponderance of all nasal gastric tubing is done by non-professionals in the horse racing industry in Ontario at the present time.
Dr. Duncan confirmed that he was unaware of any regulation or rule of the Ontario Racing Commission or others that would specifically prohibit and/or control nasal gastric tubing and/or who would be permitted to effect such tubing.
We are therefore left to conclude that Mr. Bruyere is far from alone in the horse racing industry in the regular and/or routine use of nasal gastric tubing of the equine participants in the industry. One might wonder why the Administration would not consider steps to prohibit and/or control an obvious and prevalent practice in the industry that, as presently practised, is clearly not in the best interest and welfare of the horse.
DISPOSITION
The Racing Commission Act 2000, in s.22(6) permits this panel “to confirm or set aside the proposed order” of the Director. s.22(7) further allows the panel “to substitute its opinion for that of the Director.” This we propose to do.
Mr. Bruyere sought and obtained prompt and proper care for Run For It after his misfeasance. Dr. Duncan additionally confirmed that there was nothing else Mr. Bruyere could have done after the infusion of the drench into Run For It’s lungs. The fact that Mr. Bruyere appears to have been only one of many non-veterinarian participants employing this procedure cannot excuse the act and its result.
We repeat that no horse deserves the fate suffered by Run For It. Racehorses are trained to accept certain interventions on a regular basis as part of their care and maintenance. Mr. Bruyere betrayed that trust. The horse racing industry should know that this breach of trust cannot and will not be accepted by this Commission.
For these reasons, we propose to set aside the proposed Order of the Deputy Director and in lieu thereof, substitute a full and complete suspension of Mr. Bruyere from any participation in any capacity in horse racing for a period of three years. This will be in addition to the eight months of immediate suspension already implemented.
Cruelty to a horse can and will be established by an objective standard and without any proof of intention to so inflict cruelty. Had it not been for the mitigating circumstances referenced above, the term of Mr. Bruyere’s suspension would have been more significant.
Dated at Toronto, this 15th day of April, 2004.
____________________________________
Larry Todd
Vice Chair