Gary Parkin (Re), 2008 CanLII 88989

RULING NUMBER COM TB 011/2008

COMMISSION HEARING TORONTO, ONTARIO – NOVEMBER 24 & 25, 2008

IN THE MATTER OF THE RACING COMMISSION ACT S.O. 2000, c.20;

AND IN THE MATTER IN THE APPEAL OF

THOROUGHBRED LICENSEE GARY PARKIN

Gary Parkin appealed the decision of the Director to issue a Notice of Proposed Order to refuse to issue a licence as a hotwalker.

On November 24 and 25, 2008, a Panel of the Commission consisting of Chair Rod Seiling, Vice-Chair James Donnelly and Commissioner Brenda Walker convened to hear the appeal.

Maureen Harquail appeared as Counsel for the Administration. Dan McMahon appeared as Counsel for Gary Parkin.

After hearing the evidence of Rick Grant, Oleh Kupraty, Kristopher Robinson, Dr. Victoria Banks, Dr. Bruce Duncan, Dr. Beverly McEwen, Gary Parkin, and Dr. Greg DeGannes, the Panel denies the appeal and orders the following:

i. Mr. Parkin’s suspension is stayed for a term of twelve months from the expiry of his licence on March 31, 2008;

ii. Mr. Parkin will be eligible to apply for a hotwalker’s licence on April 1, 2009;

iii. Mr. Parkin will be on probation for a period of four years and if found in violation of the Rules of Thoroughbred Racing by the Stewards or the ORC Administration, the stay will automatically be lifted;

iv. The fine of $5,000 is also stayed.

The Panel’s Reasons for Decision is attached hereto.

DATED this 5th day of December 2008.

BY ORDER OF THE COMMISSION

John L. Blakney

Executive Director

REASONS FOR DECISION

Overview

1Thoroughbred licensee Gary Parkin appealed the Notice of Proposed Order issued against him by the Deputy-Director on May 6, 2008 wherein the Director refused to issue him a license as a hotwalker and he was fined $5,000 and prohibited from applying for an Ontario Racing Commission license (ORC) for five years. The reasons listed were as follows:

i. The Director has reasonable grounds to believe that, while carrying out activities for which a license is required, will not act in accordance with the law, or integrity, honesty, or in the public interest, having regard to his past conduct;

ii. Gary Parkin carried on activities that are in contravention of the Act, the Rules of Thoroughbred Racing and the terms of the license.

Background

2A de novo hearing was held on November 24 and 25, 2008 to deal with the matter. Maureen Harquail represented the administration of the ORC and Dan McMahon represented Mr. Parkin as his legal counsel. Ms. Harquail asked that the panel uphold the decision of the Director as the appellant was in violation of TB Rule No. 15.06.01. Mr. McMahon argued that his client had done nothing wrong and that the cause of death of the horse ESPRESSO GAL was the result of her rearing up, flipping backwards and fracturing her skull wherein she was humanely euthanised.

3Undisputed evidence was presented that ESPRESSO GAL had been stabled at Fort Erie Racetrack for about two weeks since arriving from British Columbia, that jockey Kristopher Robinson had been exercising her every day for the appellant and that the horse exhibited a calm demeanour. At about 7:00 a.m. to 7:30 a.m. on August 11, 2007, the four year old thoroughbred mare, ESPRESSO GAL, was euthanised on the track at Fort Erie Racetrack by Dr. Vicky Banks after rearing up and flipping backwards near the three eights pole and fracturing her skull. Dr. Banks, as the only veterinary doctor at the track that morning, and after conferring with the appellant, euthanised the horse by administering 120 ml of euthansol intravenously to the horse. ESPRESSO GAL was owned and trained by Mr. Parkin who had bought the horse for $5,000 in British Columbia from a Mr. Loseth who had raced her at Hastings Park (Ex. 1, tab 15). Her racing record showed that her last 9 starts were on lasix, with the last three being in May and June of 2007. Mr. Parkin also bought the horse Where Eagles Meet for $1,000 and trucked both of them himself back to Ontario over about a two week period with his plan to get both ready to race.

4Subsequent testimony indicated he bought the horses as he wanted to move back to Ontario to be closer to his family. Unstated but obvious, he hoped the proceeds from their races would help supplement his pension which was his main source of income.

5Mr. Parkin has held licenses with various racing commissions in North America including Ontario for some forty years. His only recorded rule violations were for not having a license and for using a leg rub that contained aspirin.

6As per ORC death registry policy at that time, all horses that died within 14 days of racing in the province of Ontario were automatically sent to the University of Guelph for an autopsy. This policy was initiated to assist the Commission in determining the cause of racehorse deaths and to assist the Commission in determining whether any violation of the rules of racing had contributed to the demise of the horse. The objectives of the policy are the same as the preservation of post race samples via freezing, that is the time frame of the rule violation may have passed but the ability of the Commission to catch offenders has not. Dr. Bruce Duncan, supervisor of Commission veterinarians, as part of his duties, called the University of Guelph Animal Health Lab to alert them that the horse was coming and to check the jugular vein for suspicious marks. Those remarks were recorded by the person who took the call (Ex. 1, Tab 19) but he did not speak directly to Dr. Beverly McEwen, the pathologist who conducted the autopsy. She testified that she would have done those tests irrespective of the message from Dr. Duncan as it was part of the policy for all ORC horse autopsies and that such comments are helpful in the work of the pathologist but do not bias their work.

7The autopsy report (Ex. 1, tab 4) indicated that the horse had thirty injection marks on its left jugular vein, eight on its right jugular vein and two on the left carotid artery. Dr. Duncan who testified as an expert witness, in his written evidence wrote, that after reading Dr. McEwen’s necropsy report “In my opinion the horse ESPRESSO GAL was subjected to cruel and inhumane treatment as indicated by the finding that there were some 38 lesions present in the jugular veins. According to the pathologist several of those puncture wounds were new (i.e. within 15 to 20 minutes prior to death).” Dr. Duncan has a great deal of practical veterinary experience having been widely sought after before joining the Commission for his expertise with race horses for many years.

8Following the results of the necropsy on ESPRESSO GAL being forwarded to the ORC, Commission investigator, Rick Grant, conducted an inquiry into the matter. It was at this time Mr. Parkin was informed of the numerous needle marks on the horse. A copy of his interview was included as part of Exhibit 1, tab 11 wherein Mr. Parkin denied injecting the horse with any injectable substance and added that the only vet work done on the horse was an injection by a Dr. Webe in B.C. to prevent the horse from getting shipping fever. He expressed an interest in wanting to know how old the needle marks were and what the horse died of.

9Mr Grant never personally interviewed Dr. Banks although he did talk to her on the phone. He told Mr. Parkin that Dr. Banks had advised him that she had put the horse down with one shot (Ex. 1, tab 11, p 3). Similar wording appeared in the particulars (# 6) in the Notice of Proposed Order issued to Mr. Parkin on May 6, 2008 (Ex. 1, tab 1).

10Dr. Banks testified that she actually gave two separate injections of sixty ml each of euthansol. Mr. Parkin testified that she actually injected the horse three times as she missed her mark with the first attempt. While it can be argued successfully that this equates to one dose, as Dr. DeGannes testified, that would be the minimum amount required to euthanise a horse. Any confusion related to terminology issues could have easily been dealt with if Mr. Grant had seen fit to interview Dr. Banks. The Panel notes, and as argued by Mr. McMahon, that a more thorough investigation would have included a meeting with the veterinarian who attended the horse on the track and administered the euthansol. No such meeting took place and Mr. Grant had fellow ORC investigator, Oleh Kupraty phone Dr. Banks to provide a written report to the Commission.

11Dr. Banks did file a report (Ex. 1, tab 18) in a letter dated February 1, 2008. That report confirmed she administered 120 ml. of euthansol intravenously. She testified that she was tardy in filing the report because in her opinion, there was no issue re the horse’s death. To her, the horse reared up and flipped over backwards hitting her head causing the fractured skull, as other thoroughbred horses have been known to do. Her testimony on this matter as it related to the thoroughbred horses rearing up and flipping backwards and fracturing their skulls and causing irreparable damage to themselves was unchallenged and supported by Dr. DeGannes testimony as well as Dr. McEwen who added that it would be out of character for a calm horse to do this.

12Jockey Kristopher Robinson testified that he had been riding ESPRESSO GAL for Mr. Parkin for two weeks each morning and that she was a calm horse. On August 11, 2007, when he arrived at Mr. Parkin’s shed row, he provided Mr. Parkin time to “tack up” the horse and went around to the other side of the barn to finalize arrangements to ride another horse for a trainer who was stabled there. Mr. Parkin brought him the horse and he said he could tell she was much different as she was on the muscle, and he had difficulty with her on the track backing her up (going the opposite way) to the 3/8 pole where she was to begin her workout. When he attempted to turn her to commence the workout at this location, this is when she reared and flipped backwards.

13Mr. Robinson was very scared by these events as it is very dangerous to the rider. He testified that he lost a week of riding due to the injury he received. Upon the arrival of track personnel to the scene he left thinking the horse was dead. That was not the case as per Dr. Banks and Mr. Parkin’s testimony. The horse could not get up as its lower extremities were paralysed despite attempts by it to do so and the horse was thrashing around with its head.

14Mr. Parkin testified that it is natural for a thoroughbred horse to get excited when it knows it is going to work out. This fact was collaborated by testimony from another trainer and long time friend of the appellant, Nick Gonzalez, and Dr. DeGannes who is a thoroughbred trainer and long time veterinarian practising at Woodbine Racetrack. ESPRESSO GAL would know this, according to Mr. Parkin, as when he “tacked up” the horse, he added a tongue-tie and blinkers to the equipment. These two items were not utilized before when jockey Robinson rode the horse.

15Mr. Parkin also testified that he made a mistake in allowing jockey Robinson to back up the horse to the 3/8 pole as this would have been a new experience for the horse. According to him horses are not allowed to do this at Hastings Park in Vancouver where the horse had done all its racing.

16Dr. McEwen, the pathologist who conducted the necropsy on ESPRESSO GAL at the Animal Health Lab at the University of Guelph, testified as an expert witness. In addition to being a veterinary doctor she has a PHD with her research directed to inflammation in horses and those from injury. Included in her research was the length of time re migration of the body’s healing process from injection sites. She confirmed that while the actual cause of death was the injection of euthansol by Dr. Banks, the necropsy that she conducted on ESPRESSO GAL confirmed she had suffered a fractured skull that caused a massive brain haemorrhage.

17She testified that notwithstanding the message (Ex. 1, tab 19) that Dr. Duncan called the lab alerting staff that the horse was coming that day and to check the neck for injection sites and that it may need drug testing it had no impact on her work. She testified that examining a horse’s neck was part of the protocol for all horses coming to their facility under the ORC’s Death Registry Program. She reviewed a number of necropsy reports conducted by her lab immediately around the time of ESPRESSO GAL’s necropsy and confirmed that they referenced that type of examination.

18On examining the left jugular vein of ESPRESSO GAL she found at least thirty puncture sites that are consistent with injections, that some were very red indicating they were recent in nature of occurrence. Upon microscope examination she found extensive haemorrhaging and that wall of the vessel was cleaved, the likely cause being from injections. Another eight were observed in the right jugular vein as well as two puncture wounds in the horse’s left carotid artery (Ex 1, tab 4). To her this was not normal for race horses but she did admit that it was possible, and that the number was high in terms of the thousands of necropsies she has conducted.

19Mr. McMahon argued that thoroughbred race horses are subject to numerous injections in the normal legal course of their training and racing regimen. His assertion was supported by testimony from Dr. DeGannes and trainer Gonzalez. He asserted that investigator Grant should have contacted both the former owner and vet in B.C. to find out the history of the horse including its medical history in terms of the number of injections it would have received. The horse’s race lines (Ex. 1, tab 15) showed the horse was on the lasix program which would have necessitated a minimum of nine injections for its races that year.

20With respect to the puncture sites in the left carotid artery Dr. McEwen referenced Exhibit 1, tab 5, photographs of ESPRESSO GAL’s left jugular and carotid artery. She marked two puncture sites in photo # 2 of the horse’s left jugular vein #s 1 and 2 which she testified were the recent puncture sites. She then marked two puncture sites on photo # 4, 3 and 4 indicating two puncture sites on the horse’s left carotid artery. She testified that the two puncture sites on the carotid artery did not match up to those from the jugular vein therefore they could not have been caused by Dr. Bank’s administration of the euthansol.

21Mr. McMahon argued that the two puncture sites had to be the result of Dr. Banks administering the euthansol injections. He claimed that it was widely accepted that any injection into a horse’s carotid artery would automatically put a horse down. Dr. DeGannes and Mr. Gonzalez testified that they agreed with this position based on their experience. Dr. McEwen testified that the literature did not support this assertion. Dr. Duncan also was in agreement with her. Their difference of opinions are explained in that with the former they are referencing the injection of some substance while the latter opinions refer to just puncturing the vessel. Dr. DeGannes stated he did not think it was possible for a puncture to occur without some of the substance getting into the artery but the Panel notes it has personal knowledge of a drug being injected into a horse’s carotid artery and not die.

22It was Dr. McEwen’s professional opinion that the horse had to have been injected at least fifteen minutes to two hours prior to its death. The basis for this conclusion was the presence of neutrophils in sufficient quantities that would not normally be present for a very recent injection. She based her conclusion on her research that showed the neutrophils (white blood cells) arrive to fight infection or injury. If the horse took one and one-half to three minutes to die as Dr. Banks testified then it would not be possible for the recent injections she observed to have been the result from the euthansol injections. She testified that these neutrophils take a minimum of fifteen minutes to arrive at the trauma/infection sight and stop moving after death. This statement was contradicted by Dr. DeGannes but he did offer that he is not an expert in this area.

23Supporting Dr. McEwen’s analysis was the fact that she found iron in the tissue that she stated indicated haemorrhaging. According to her, it takes iron forty-eight hours to occur at the site thus the injury was not fresh. She added that she also found iron outside if the horse’s cells, that it is very rare but that she was not sure why it would be there.

24Dr. McEwen said she examined the heart and found it normal, that it did not have a heart attack as was suggested by appellant’s counsel, as a possible cause of the incident.

25Dr. McEwen confirmed that her facility sent blood samples out for testing to both the Equine Toxicology & Research Lab at West Chester University and to Racing Forensics to be tested for certain drugs. Both labs reported negative results (Ex.1, tab 20). Mr. McMahon argued that it was incumbent for the ORC to continue to test for other drugs if it suspected the appellant of some misdeed and that it had the opportunity s per Dr. Uboh’s letter his lab retained the blood for one month to allow for further testing. Dr. Duncan testified that costs dictated that it was not an efficient use of funds to do more testing. It was also revealed that Mr. Parkin was not informed that his horse was being drug tested post mortem nor was he provided with the results. The Panel questions the rationale.

26The timing of events on the morning of August 11, 2007 became an issue central to the science. According to Dr. McEwen, Mr. McMahon’s theory of the puncture wounds from Dr. Banks euthanising ESPRESSO GAL could only be plausible if it took the horse a half hour to die. Dr. Banks was specific, one and one-half minutes to three minutes. The length of time estimates from the witnesses vary as it relates how long it took for Mr. Parkin to “tack up” the horse, lead it to jockey Robinson on the other side of the barn, walk the horse to the track with the jockey on the horse and back up the horse to the 3/8 pole. As per Ms. Harquail and her adding of the times for tacking up, walking to the track and backing up on it and including that for Dr. Banks to arrive on the scene and administer the euthansol it is a minimum of tem minutes and likely longer. Mr. Gonzalez testified he has subsequently timed how long it takes to get to the track and he put it at eight minutes.

27Mr. McMahon presented a number of character witnesses on behalf of his client. Not surprising, they all characterized him as honest, concerned for his horses over himself and diligent, helpful.

Issue

28Is the science and evidence emanating from the necropsy of a horse, on a balance of probabilities, sufficient to prove a violation of the Rules of Thoroughbred Racing? Was the horse subject to cruel and inhumane treatment? Was Dr. Duncan’s call to the animal lab at the University of Guelph on August 11, 2007 prior to the arrival of the carcass of ESPRESSO GAL appropriate given his position as supervisor of the death Registry Program or did he taint or cause any bias as to the results of the necropsy? Did Mr. Parkin violate TB Rule No. 15.06.01, trainer responsibility? Was the penalty imposed on Mr. Parkin appropriate given the circumstances? Was the investigation by Commission staff timely, thorough and complete as it should be in all such instances?

Decision

29After carefully reviewing the evidence and the testimony and reading the submissions the Panel denies the appeal. Mr. Parkin’s suspension is stayed to a term of twelve months from the expiry of his license on March 31, 2008 and he will be eligible to apply for a hot walker’s license on April 1, 2009. The fine of $5,000 is stayed as well. Mr. Parkin will be put on probation for four years and if found in violation of the Rules of Thoroughbred Racing by the Stewards or ORC Administration the stay will automatically be lifted.

Reasons for Decision

30This Commission operates with three primary mandates, one being the protection of the health and welfare of the horse, the others the protection of the safety of participants and the protection of the public interest. It is charged with this responsibility under the racing Commission Act, 2000 and assumes that undertaking willingly with the recognition that the vast majority of licensees care for their horses and do all they can to protect them. However, there are as in any society, a few who chose not to do so and the Commission must act to both signal such actions will not be tolerated and to impose penalties that will act as a deterrent.

31Mr. Parkin, on a balance of probabilities, violated TB Rule No. 15.06.01 as the evidence is clear ESPRESSO GAL was injected within fifteen minutes to two hours before she was euthanised. That evidence is clear, cogent, compelling and graphic. What is present in this appeal as with most other positive tests for illegal medications is the typical mystery. The trainer bears no responsibility or knowledge of how it could have occurred. Mr. Parkin acknowledged that he was familiar with the trainer responsibility rule and blurted out what it meant during his cross- examination. Mr. Parkin had the opportunity of time, the knowledge of years of experience in the backstretch and the motivation to improve a “cheap” horse. Notwithstanding Mr. McMahon’s argument that there was no reason to be injecting a horse that was a month away from racing there are reasons such as lameness, or to improve performance for potential sale (profit). No evidence was tendered on behalf of the appellant as to what precautions he took to protect his horses other than he truly cared for them providing for them ahead of himself, that he did all the feeding, chores etc. and that his character witnesses confirmed such.

32Dr. McEwen testified that amongst the numerous injection sites, many were recent. The lesions would not be a result of the horse racing in B.C. with her last race in May. On a balance of probabilities, the injections had to have occurred in Ontario under Mr. Parkin’s watch. In support of this timing issue was Dr. McEwen’s testimony that she found iron present at some of the lesion sites and her research indicated that it takes forty-eight hours for that substance to migrate to the trauma site.

33The Panel accepts the testimony of Dr. McEwen and her unchallenged scientific evidence related to time lines for the migration of neutrophils in a mammal towards a trauma/infection site. Based on her convincing evidence it is not probable to accept the supposition of the appellant that the puncture marks into the horse’s left carotid artery were caused by Dr. Banks euthanising two needle injections. In support of that evidence was her testimony that demonstrated that the two puncture wounds in the left carotid artery did not match up to those in the left jugular vein that were supposed to be caused by Dr. Banks two euthansol injections using a 16 gauge syringe according to Mr. McMahon. The Panel, therefore, is of the opinion, that licensees can be held responsible for violations of the rules of racing notwithstanding the evidence may be secured from the necropsy of a post mortem horse.

34The Panel accepts the testimony of both Drs. McEwen and Duncan that a horse’s carotid artery can be punctured and not immediately be “put down “ on its knees or worse. It does not agree that if a substance were injected into carotid artery it would knock down a horse immediately with the likely result death. Supporting that position is the Panel’s own experience in this area.

35The Panel accepts that Dr. Duncan was exercising his responsibility as the administrator of the Commission’s Death Registry Program and combined with his role as supervisor of Commission veterinarians he would not have been carrying out those responsibilities if he had not contacted the University of Guelph facility prior to the horse’s arrival. He did not cause any bias in the process as Dr. McEwen testified, that the examination as requested, is part of the protocol for all ORC horses. That protocol was evident in the review of selected post mortems Dr. McEwen undertook under cross-examination by Mr. McMahon.

36Most troubling for the Panel is the potential number of puncture sites on the veins and arteries of ESPRESSO GAL. While there is no research, as Dr. McEwen testified, as to how long these lesions last, the fact that the vein wall had separated, likely from injections, makes it, on a balance of probabilities that the horse was subjected to cruel and inhumane treatment as Dr. Duncan stated in his report. The Panel recommends that the ORC consider commissioning research being undertaken in this area and also to seek out information for better ways for the administration of legal medications other than intra vascular.

37The Administration failed in its attempts to identify the substance that they alleged was injected into the horse. Dr. McEwen testified as to the existence of gold/brown structures that would not normally be seen in a necropsy but that she was unable to identify them. They may very well have represented the substance that had been injected into ESPRESSO GAL. Costs became a factor, nevertheless not being able to identify the substance, does not alleviate Mr. Parkin’s responsibility under the rules of racing. The horse was injected by someone at the track from fifteen minutes to two hours before it died. Under those same rules only a licensed veterinarian can inject a horse at a licensed track which Fort Erie is. Mr. Parkin testified that no veterinarian had done any work on ESPRESSO GAL since he arrived at Fort Erie with the horse.

38In terms of the investigation and the timeliness of it, the Panel is of the opinion the Administration can and must do better. Although it did not affect the outcome, it was not as complete as it could or should have been. It is reasonable to expect, as Mr. McMahon questioned, why was the former owner or veterinarian in B.C. not contacted, why was Dr. Banks not interviewed face to face, why was the appellant not informed of the drug tests on his horse or the negative results? It would also appear that the pace of the investigation could have been more prompt. The Panel recognizes the delays awaiting test results, etc., but a man’s life and reputation were in the balance and all efforts should be made with this fact in mind.