RULING NUMBER COM TB 006/2009
COMMISSION HEARING TORONTO, ONTARIO – APRIL 29, 2009
IN THE MATTER OF THE RACING COMMISSION ACT S.O. 2000, c.20;
AND IN THE MATTER IN THE APPEAL OF
THOROUGHBRED LICENSEE KENT BOWLES
On October 6, 2008, Ruling Number TB 5520/2008 was issued wherein the horse, HELEN’S DESTINY, trained by Kent Bowles (“BOWLES”) was placed on the Stewards’ List and rendered ineligible to enter or race in Ontario, in accordance with Rule 16.11 of the Rules of Thoroughbred Racing.
BOWLES appealed Ruling Number TB 5520/2008 to a Panel of the Ontario Racing Commission
(“ORC”).
On April 29, 2009, a Panel of the ORC, comprised of Vice Chair Hon. James M. Donnelly, Commissioner David Gorman and Commissioner Bernard F. Brennan, DVM, was convened to hear the appeal.
Jennifer Friedman appeared as counsel for the Administration. BOWLES appeared on his own behalf.
Upon hearing the testimony of Associate Steward Gunnar Lindberg, ORC Veterinarian Dr. George Wain, ORC Veterinarian Robert Lees, and ORC Veterinarian Dr. Earle Nugent, reviewing the exhibits filed, and upon hearing the closing submissions, the Panel denied the appeal.
The Panel’s Reasons for Decision is attached to this Ruling.
DATED at Toronto this 22nd day of May 2009.
BY ORDER OF THE COMMISSION
Rob McKinney
Acting Executive Director
REASONS FOR RULING
These are the Reasons for the Decision herein rendered April 29, 2009.
This is an Appeal and Request for Hearing by Kent Bowles (Bowles) owner of the thoroughbred racehorse HELEN’S DESTINY.
The relief sought is to have HELEN’S DESTINY removed from the Stewards’ List.
HELEN'S DESTINY had been a Vets’ scratch, August 18th, 2008, September 2nd, 2008, September 14th, 2008, and September 30th, 2008, each time with soreness or lameness behind.
The scratches on September 2nd and September 14th were as the horse was about to enter the starting gate. The reason in each case was that the jockey wanted off the horse and it was too late to find a replacement. ORC Veterinarian, Dr. Wain, pointed out that jockeys are in the best position to detect a problem regarding soundness.
On October 6th the Stewards met with Dr. Wain. Given that history HELEN'S DESTINY was placed on the Stewards’ List by ruling TB5520/2008. Thereby HELEN'S DESTINY was rendered ineligible to race in Ontario - Rule 16.11.
There is a protocol for removal from the List involving a workout before a Commission Vet followed by an examination by the Vet and a seven-day waiting period. Upon satisfactory performance the horse’s name is removed from the List.
By Rule 16.11, only the Stewards have the power to remove the horse’s name from the List. This is done on advice from the veterinarians. It was pointed out by Dr. Wain that a horse may be lame and may recover and upon demonstrating an ability to run can be taken off the List. The issue is safety not speed.
Dr. Wain was the senior ORC Vet at Fort Erie. He described examining the horse on August 18th, 2008 and found it weak, buckling behind or knuckling over almost to the point of falling. From August 18th to September 30th, 2008 he examined HELEN'S DESTINY on four occasions. On each examination the horse exhibited rear-end lameness, soreness and/or buckling. Dr. Wain suggested that HELEN'S DESTINY should be taken to a clinic for thorough examination. Commission Vets in discharge of their duties neither diagnose nor recommend medication or treatment.
A letter from Dr. Robert Lees dated March 22nd was filed, indicating that he told Mr. Norman Bowles, father of Kent Bowles, that prior to removing this horse from the Vets’ List, a jockey should be found who would be willing to ride. A letter from Dr. Earle Nugent dated March 26th, 2009, was filed, indicating that he examined HELEN'S DESTINY on September 21st, 2008. The horse exhibited an acute hind lameness and demonstrated pain in the back upon palpitation. Based on that examination he refused to take the horse off the Vets’ List.
Based upon that evidence, three Veterinarians and two jockeys concurred in the opinion that HELEN'S DESTINY was not fit to race.
In May of 2007, HELEN'S DESTINY raced in a $23,500.00 claimer, on May 14th, 2008 a $11,500.00 claimer, June 1st, 2008 a $10,000.00 claimer, June 24th, 2008 a $4,750.00 claimer, and on July the 6th, July 21st, July 29th,August 10th and August 18th was entered to race in $5,000 claimers. The progressive and sustained drop in claiming price indicates some difficulty with the horse.
In evidence it was said that following being placed on the Veterinarian's List in Ontario, HELEN'S DESTINY raced at Mountaineer Raceway, West Virginia. No race lines from Mountaineer were produced or filed in evidence. If the horse raced at Mountaineer with any measure of distinction or regularity, no attempt was made to demonstrate that in evidence.
There is no indication of bad faith, bias or lack of diligence by Dr. Wain. He performed his duty. Bowles found the result unpalatable. Dr. Wain was correct in requiring that the horse follow protocol for removal from the List. That option is still open. There is abundant danger in returning a horse to the races without veterinary approval. To do so would be in willful and reckless disregard for the lives and safety of horses and jockeys and of the public interest in having a properly regulated racing industry. To seek intervention by a Commission Panel is to fail to understand the purpose of the Rule. The keystone is safety. The protocol is in place for good reason. So it remains.
The Administration suggested that this Appeal be declared frivolous with cost consequences against Bowles. Caution should be exercised in making such a declaration. Two reasons militate against a finding that the Appeal was frivolous.
The issue is novel. No precedents either pro or con were referenced. Because of the Appeal, such a precedent has been established.
Uninhibited access to Appeal is the right of every licensee in relation to resolution of real or honestly perceived grievances. No costs shroud should cast a pall of intimidation across the Hearing Room door.
- The Appeal is dismissed with no order for costs.
DATED this 22nd day of May 2009.
James M. Donnelly
Vice Chair
Attachment
Thoroughbred Rules
Rule 16.02.01
Subject to the powers and duties of the Commission and the Director, the Stewards have the power to govern, and it is their duty to regulate and govern the conduct of all racing, racing officials and owners, trainers, jockeys, grooms and all persons attendant upon horses.
Rule 16.11
The Stewards may place the name of any horse on the Stewards’ List for any reason they may deem to be proper. During the time a horse’s name is on such list, it shall not race, nor shall it be entered in any race, except that it may be nominated in a stakes race. Only the Stewards shall remove a horse’s name from the Stewards’ List.