IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF VETERINARIAN DR. BRIAN J. LAUZON
Veterinarian Dr. Brian Lauzon (M37939) appealed the decision of the Judges in Ruling Number SB 29012, issued against him on May 14, 2003, wherein he was fully suspended for six months (May 19 to November 19, 2003, inclusive) and fined the sum of $5000.00 for a violation of Rules 6.20(b), 6.10 and 8.12 of the Rules of Standardbred Racing for submitting a falsified Coggins document to Standardbred Canada with regard to the horse ERIEVALE PRINCESS, entered to race at Windsor Raceway in race 10 on April 9,2003.
The aforesaid Ruling was stayed by order of the Executive Director in Ruling Number 85/2003 on May 14, 2003.
This matter was originally scheduled for June 18, 2003 and was adjourned until September 24, 2003, at the request of Dr. Lauzon, and subsequently adjourned until January 30, 2004 at the request of Dr. Lauzon.
On January 30, 2004, Vice Chair Larry Todd, Commissioners Dr. Bernard Brenner, DVM, and Patricia Bullock of the Ontario Racing Commission convened to hear the appeal.
Dr. Lauzon appeared on his own behalf and Tim Snell appeared on behalf of the Administration.
Upon hearing the evidence of Faye Duford, Linda Henry, Valerie Skillings, Kader Prasad, Neil McCoag, Troy Moffatt and Dr. Lauzon, upon reading the exhibits and upon hearing the submissions of the parties, the Ontario Racing Commission decided unanimously that the appeal as to penalty be allowed as follows: the fine of $5000.00 set out in Judge’s Ruling SB 29012 was affirmed but the suspension for six months was quashed.
The reasons for decision are attached as pages 2 to 5 inclusive, of this Ruling.
Dr. Lauzon is hereby ordered to immediately pay $5000.00 by cheque to the Ontario Racing Commission.
DATED this 12th day of February 2004.
BY ORDER OF THE COMMISSION
Jean Major
Executive Director
REASONS FOR DECISION
Veterinarian Dr. Brian J. Lauzon, appeals the Ruling of the judges at Windsor Raceway with respect to an order issued against him (SB 29012) dated May 14, 2003 whereby he was suspended for six full months and fined $5,000.00 for a violation of Rules 6.20 and 8.12 of the Rules of Standardbred Racing.
The aforesaid Ruling of the judges was stayed by order of the Executive Director (Ruling 85-2003) on May 14, 2003.
This matter was heard on January 30, 2004 by a panel of the Commission consisting of Commissioner Bullock, Commissioner Brennan and Vice Chair Todd.
Tim Snell appeared as counsel for the Administration of the Ontario Racing Commission while Dr. Lauzon represented his own interests throughout the hearing.
The documentary background of the Administration’s case is set out in the form of a documents brief, which was made Exhibit 1 at the hearing by the agreement of all parties.
The Administration called as its witnesses, Fay Duford, Standardbred Canada’s field representative at Windsor Raceway, Linda Henry, Standardbred Canada’s head office field services representative, Valerie Skillings, Standardbred Canada’s manager of field services, Kader Prasad, the proprietor of Veterinarian’s Diagnostic Laboratory, Neil McCoag, and ORC investigator, Troy Moffatt. For the defence in this appeal, Dr. Lauzon gave his own evidence and there was no evidence called by the Administration in reply.
Dr. Lauzon, consistent with his Notice of Appeal, by the end of the hearing acknowledged the existence of a violation of the Rules of Standardbred Racing for which he was responsible in law. As the evidence evolved, Dr. Lauzon admitted that the document that was marked Exhibit 3 to this proceeding, being a Coggins Certificate, bearing lab #BL0303137, was a fraudulent “cut and paste” version of another Coggins Certificate.
The existence of a potentially fraudulent Coggins Certificate came to the fore initially on or about April 10, 2003 when Linda Henry at Standardbred Canada’s head office was entering a Coggins Certificate faxed from a laboratory for the horse, Erievale Princess. The computerized records for this horse indicated that a Coggins Certificate had been entered by a Standardbred Canada field representative the evening prior, April 9, 2003, at Windsor Raceway. Standardbred Canada found it strange that there were apparently two Coggins Certificates in existence for the same horse when there had not been any apparent change of trainer or ownership transmission. Standardbred Canada, quite rightly, initiated an investigation and certain queries of their field representative and Dr. Lauzon, the veterinarian who appeared on each of the two Coggins Certificates for Erievale Princess as the accredited veterinarian who had done the requisite serum sampling.
Standardbred Canada’s field representative, Ms. Duford, gave extensive and detailed evidence of the events in her office at Windsor Raceway involving Dr. Lauzon on the evening of April 9, 2003. She indicated that she had been presented with the original blue copy of Agriculture Canada’s Equine Infectious Anaemia (EIA) Serum Test Report and Certificate. Ms. Duford was very certain and unequivocal in respect of this evidence. She further testified that there was difficulty in reading the handwritten date of the laboratory report section of the form styled “Date Reported”. Ms. Duford indicated that after entering the necessary information from this original blue copy Coggins Certificate that same was returned to Dr. Lauzon.
Unfortunately, none of the documentary evidence proffered by the Administration or Dr. Lauzon reveals the existence of any Coggins Certificate, fabricated or otherwise, with a handwritten and difficult to decipher date of March 26, 2003 in the laboratory section of the certificate under the heading “Date Reported”.
It is for this reason that we are obliged to prefer the verbal and documentary evidence of Dr. Lauzon where same conflicts with the evidence of Ms. Duford. Ms. Duford did not recall any laboratory stamp in the certificate area styled “Name of Lab”. None of the documentation presented by either the Administration or the appellant revealed any certificates with the laboratory stamp being absent.
After Standardbred Canada contacted Dr. Lauzon to inquire why there were apparently two Coggins Certificates for the same horse, Dr. Lauzon on April 14, 2003 caused a copy of Exhibit 3 to be faxed to Standardbred Canada.
Kader Prasad, the owner and director of Veterinarian’s Diagnostic Laboratory, was called by the Administration to confirm that the Coggins test and sample purportedly delivered, tested and reported out in Exhibit 3 had never been through his lab for Erievale Princess. Dr. Lauzon, in cross-examination, did not attempt to even challenge this proposition.
Both investigator Moffatt and Judge McCoag giving evidence for the Administration indicated that they had never come across in the entire process an original blue copy of a Coggins Certificate bearing the indecipherable March 26, 2003 laboratory “Date Reported”. Rather, Judge McCoag and investigator Moffatt did indicate that their inquiries in this matter had led them to interview by telephone the veterinarian assistant of Dr. Lauzon, one Sarah Cinsurak. Both these employees of the Administration recited initial contacts with Ms. Cinsurak in which she acknowledged the following:
(a) she forgot to send out the March 24th blood sample taken on Erievale Princess;
(b) when Dr. Lauzon asked for a copy of the certificate for Erievale Princess on his way to the track on April 9, 2004, she “made up a forged document” through a cut and paste process followed by photocopying; and
(c) while vague in her answers, she did acknowledge “photocopying the bottom of another test certificate over the top of a certificate purporting to be that of Erievale Princess”.
We received in evidence as Exhibit 7 the notes of an interview by the Administration with Ms. Cinsurak on May 13, 2003 which records as follows:
“when Doc asked her for the paperwork for Erievale Princess, she had a forged document made up and gave it to Doc”.
The statement further indicates that she felt this fraudulent Coggins Certificate would not come to light because she was expecting a legitimate Coggins Certificate in the mail any day from Veterinarian’s Diagnostic Laboratory with regard to a serum sample from Erievale Princess which she knew on April 9, 2003 had in fact gone to the laboratory and would be reported back in the next several days.
Dr. Lauzon, after attempts to contact Standardbred Canada officials on April 14th and 15th himself attempted to call Senior Judge Fraleigh at Windsor Raceway. He was unable to reach Judge Fraleigh on April 15th but succeeded on April 16th.
Judge Fraleigh did not give evidence for the Administration and we therefore are obliged to conclude, based on the evidence of Dr. Lauzon, that he in essence self-reported to the Administration’s Senior Judge in Windsor. This is entirely consistent with Dr. Lauzon’s approach to the Canadian Food Inspection Agency on April 22nd and 23rd, 2003. After this notice, the Canadian Food Inspection Agency likewise conducted their own investigation, the details and particulars of which are set out in Exhibit 13. Their investigation concludes that Dr. Lauzon’s veterinarian assistant was relying on the fact that there was a valid Coggins Certificate in process and that “he would never know” she had created a fabrication to deliver to him on April 9th, 2003.
A letter from the Canadian Food Inspection Agency dated October 2, 2003 directed to the appellant indicates that it could “find no compelling reason to proceed further in the investigation nor take any action against you associated with the events related to the alleged falsification of information on an EIA certificate.” In short, the Canadian Food Inspection Agency and the body charged with supervision of Coggins testing for swamp fever in this country concluded that Dr. Lauzon was not directly responsible for the creation and proliferation of Exhibit 3. The federal agency, however, did note that “as an employer and professional, you are responsible and liable for the improper action or inaction of any person who acts on your direction or instruction.” We are of a similar view.
Dr. Lauzon in argument stressed that he did not tell Sarah Cinsurak to go out and falsify a Coggins test. However, he did acknowledge that he “feels like a fool” as a consequence of the events above.
With regard to the offence charged in this proceeding, i.e. a violation of Rule 6.20(b) of the Rules of Standardbred Racing, we find that the Administration has established the offence. The creation and distribution of false Coggins Certificates is clearly misconduct prejudicial to both the best interests of horses and horseracing, as well as a violation of the rules and protocols of the Canadian Food Inspection Agency charged with the protection of the horse population from swamp fever throughout the country.
Accordingly, we are unanimously of the view that a violation has taken place for which Dr. Lauzon is responsible. We do, however, find as a fact that Dr. Lauzon had no direct hand or participation in the creation of the falsified and/or fraudulent Coggins Certificate, being Exhibit 3 herein. However, we do conclude on the facts that Dr. Lauzon must bear ultimate responsibility for the malfeasance or improper actions of his employee, Sarah Cinsurak.
Accordingly, with respect to the issue of liability, the appeal is dismissed.
The panel had the benefit of Judge McCoag’s recitation of the thinking of the judges with respect to the issue of penalty. Additionally, we were provided by Judge McCoag with a computerized printout of the history of suspensions and fines levied by the Ontario Racing Commission against veterinarians over the last fifteen years. We fully appreciate, as urged by Mr. Snell, that these prior rulings and penalties are in no way binding upon us. However, these rulings and decisions do lend some assistance when assessing whether the veterinarian has direct responsibility for the offence or only indirect responsibility through omission or commission on the part of licensed or unlicensed employees of the veterinarian.
Mr. Snell urged upon us the fact that the “story” of Ms. Cinsurak “doesn’t make sense” and that there must be more “going on than meets the eye at first blush”. We might well have concurred had we had the opportunity to hear Ms. Cinsurak give viva voce evidence. However, she was not called by either the Administration or Dr. Lauzon. For this reason, we have some significant difficulty in accepting the urgings of Mr. Snell to the effect that Dr. Lauzon must have some direct responsibility or participation in the falsified certificate. We cannot make this finding on the evidence before us. As noted above, Dr. Lauzon’s only responsibility for this offence is as a professional who is responsible for the omissions or commissions of his employees.
In all the circumstances and for the reasons above, we have concluded unanimously that the appeal as to penalty must be allowed. The judge’s $5,000.00 penalty is affirmed but the suspension for six months shall be quashed.
In the event that Dr. Lauzon and the Administration cannot agree on the timing for the payment of the $5,000.00 fine, as above, we may be addressed on this issue.
DATED at Toronto, this 12th day of February, 2004.
Larry Todd
Vice Chair