Ontario Racing Commission judges have released their decision regarding the hearing of trainer Patrick Fletcher. The hearing was held in regard to Fletcher's alleged use of suspended veterinarian Blaine Kennedy
for the horse Flamewalker.
The decision in regard to a penalty was by a majority decision. One judge dissented.
The majority decision, complete with reasons and the names of the judges undersigned, appears below in its entirety.
The majority decision is then followed by the dissenting decision, which also appears in its entirety with the judge undersigned
The judges work in panels of three judges. The majority decision stands.
As a result of an investigation into an alleged use of ORC suspended veterinarian Blaine Kennedy by trainer Patrick Fletcher, at the Fintec training facility, on or about January 8, 2010, Mr. Fletcher was charged with violations of ORC rules 1.09, 6.20(a) (b) (c), 6.27, and 26.17.
On February 10, 2010 Judges William Maertens, Don Lawrence and Rick Rier held a hearing to deal with the alleged use of suspended veterinarian Blaine Kennedy and the resulting charges.
Mr. Fletcher represented himself. Karan Fletcher was also in attendance.
After hearing the testimony of Patrick Fletcher and taking into consideration the agreed upon evidence in the report of investigator Biernes, the judges find that Patrick Fletcher did indeed use suspended veterinarian Blaine Kennedy for the horse Flamewalker, on or about January 8, 2010 and is therefore in violation of ORC rules 1.09, 6.20(b), 26.17. The judges have issued ruling SB41292 whereby Mr. Fletcher is fully suspended for a period of 60 days plus a fine of $1,500, and ruling SB41293 whereby Mr. Fletcher is placed on probation for a period of 2 years with the following conditions:
- 1) Mr. Fletcher shall keep the peace and be of good behaviour.
- 2) Mr. Fletcher shall allow any and all ORC investigators unrestricted access to his stable for the duration of the probation.
- 3) Failure to comply with any and all conditions of the probation shall result in an immediate suspension for the remainder of the probation, in addition to any penalties assessed by the Judges at the time.
The Judges also find that Mr. Fletcher deliberately misled investigator Biernes in his statement of January 17, 2010 and have issued ruling SB41292 whereby Mr. Fletcher is fined $500 for violating ORC rule 6.27.
Findings of Fact:
- The horse “Flamewalker” injured his jaw on Christmas Day while in the care of trainer Dave Menary
- “Flamewalker” raced at Woodbine Racetrack on January 4, 2010
- “Flamewalker” was placed under the care of Patrick Fletcher, at the Fintec training facility on January 7, 2010.
- “Flamewalker” was x-rayed by suspended veterinarian Blaine Kennedy on January 8, 2010.
- Mr. Fletcher has a credibility problem. In Patrick Fletcher’s statement to investigator Biernes on January 17, 2010 Mr. Fletcher stated “Blaine Kennedy did not treat this horse or any other horse in this barn”, and that he (Mr. Fletcher) “doesn’t recall ever seeing Mr. Kennedy on the farm”. With respect to “Flamewalker”, Mr. Fletcher indicated that the horse had three displaced teeth and a cut on his gum and that “I did not think it was serious” and added “the horse was eating fine with no temperature and the horse was not in distress”.
- Investigator Biernes interviewed Patrick Fletcher again on January 20, 2010 and Mr. Fletcher was shown the comments that owner Bert Smith had posted on harnessdriver. In his statement on January 20, 2010, Mr. Fletcher confessed that he did use Blaine Kennedy. He (Patrick Fletcher) stated that he did not call Blaine to the farm as “Blaine is constantly at the farm trying to get business”. According to Mr. Fletcher, he (Fletcher) thought that this was potentially an emergency situation. Blaine took two digital x-rays and the jaw was not broken, but there was an infection. The horse was treated with bute and penicillin. Mr. Fletcher indicated that the digital x-rays were deleted. Then at the hearing Mr. Fletcher stated that he did not know if the x-rays were deleted. He now says that he has seen Blaine Kennedy at the farm only about once a month.
- At the hearing Mr. Fletcher testified that “Flamewalker” was not eating much, three teeth were displaced and the gums were black, the horse had a temperature of 103 and the horse seemed distressed. He stated that he saw Kennedy drive by and I asked Kennedy to look at the horse”. Mr. Fletcher stated that he thought it was an emergency, and had only the best interests of the horse in mind.
- Mr. Fletcher stated there were no vets in the area that would answer an emergency call. He had attempted to get a vet to come out on a Sunday some time ago without success. It was a one hour drive to Dr. Goodrow, a vet that Mr. Fletcher uses.
- Mr. Fletcher did not make any attempt to contact a licensed vet.
- Mr. Fletcher has consistently acknowledged that he was aware that Mr. Kennedy was under suspension by the ORC.
- “Flamewalker” was suffering from an infection. There was no broken jaw.
After considering all of the evidence, the judges find that Patrick Fletcher did indeed use suspended veterinarian Blaine Kennedy and was in violation of ORC rules 1.09, 6.20(b), 6.27, and 26.17.
In his 'speak to penalty' Mr. Fletcher stated that:
Decision regarding penalty
“Flamewalker” suffered an injury on Christmas Day. He subsequently raced on January 4th, 2010. The jaw was not broken. However we agree that the evidence supports the conclusion that “Flamewalker” required medical attention.
Mr. Fletcher has been a trainer for about 20 years. He currently trains about 14 horses. As trainers ourselves for many years before we became judges, we know that a trainer training 14 horses can expect to encounter several situations and multiple infections that may require the care of a licensed veterinarian on short notice, in the course of any given year. In this case, it was an infection that in the end was resolved with a shot of bute and two days of penicillin. We find the excuse of an emergency as exaggerated and an excuse of convenience.
Mr. Fletcher states that he uses Dr. Goodrow at times but that there are no veterinarians available to come to the farm on short notice. He references a Sunday some time ago that he could not get a licensed veterinarian to come out. Yet Mr. Fletcher has done nothing to alleviate that situation. Mr. Fletcher made no attempt to contact a licensed vet, nor did he attempt to make arrangements to truck the horse to a licensed vet. It is common practice in our industry to truck horses for an hour or more to different veterinarian clinics in the province of Ontario. “Flamewalker” had been trucked to Woodbine Racetrack, raced, and trucked back to the Fintec training facility since sustaining the injury.
Other trainers are stabled at the farm. These trainers would also require veterinarian care on short notice from time to time. Someone must be responding to these situations. Could it be that the reason that there appears not to be arrangements in place for a licensed veterinarian to be on call is that Blaine Kennedy is regularly used for these calls? Mr. Fletcher in his statement of January 20, 2010 did state that “Blaine is constantly at the farm trying to get business”.
The bottom line is this: Patrick Fletcher did use the services of suspended veterinarian Blaine Kennedy. Patrick Fletcher knew Mr. Kennedy was under suspension and yet he made no effort to contact an ORC licensed veterinarian or make any alternate arrangements whatsoever. There was no emergency.
“Flamewalker” was suffering an infection which was readily treated. Mr. Fletcher lied to investigator Biernes.
The judges have reviewed rulings and penalties involving past uses of suspended veterinarians and Blaine Kennedy in particular, in the determination of a penalty in this case.
The first case that we could find was that of Ertel, ruling SB36221 issued on November 29, 2006. The Judges assessed a penalty of a fine of $1,000 and probation of one year with the condition that using a suspended vet during the probation would result in a full suspension of 90 days plus an additional fine.
On August 26, 2007, the Stewards at Fort Erie dealt with 3 cases of thoroughbred trainers using a suspended veterinarian. In dealing with Whelan, ruling TB5026/07, Belumeur, ruling TB5027/07; and Gibson ruling TB5028/07, the Stewards assessed a penalty of a suspension of 30 days plus a fine of $200 in each case. The Stewards stayed the suspensions in these cases. We assume that there were circumstances present to warrant the stays.
IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF THE “COGGINS” APPEALS of Standardbred Licensees Zeljko Bosnjak, Gino Cicero, Pat Crowley, James DeChellis, Brenda Duncan, Mark Ford, Sandra Houghton, Patrick Hudon, Martin Litman, Irvine Molnar, Andrew Ratchford, Keith Simpson, Stuart Sowerby and Michael Stoikopoulos the panel of Mr. Rod Seiling, Mr. James Donnelly and Mr. David Gorman in giving reasons for their decision on January 29, 2008 wrote:
“The appellants admitted that they used the services of the suspended veterinarians and thus did violate the rules of Standardbred Racing. This admission gives proof, in the view of the Panel, that the appellants were not free of fault. They need to accept responsibility for their own individual negligence”.
The panel also wrote:
“The Panel recognizes that there is a certain amount of “murkiness” to the entire matter and therefore is reducing the fine to a nominal amount. There may have been a misunderstanding as to what services could be provided by both veterinarians on the part of the appellants.”
The issuing of this decision by the Commission on January 29, 2008 clearly eliminated any “murkiness” and served to notify the industry that suspended veterinarians are not to be used in any fashion. Not even for something as simple as a Coggins test. The industry has been put on notice.
In further reviewing past rulings involving the use of Blaine Kennedy the Judges find that this is the tenth incident where an ORC licensee has been caught using Blaine Kennedy for a race horse since his suspension in 2005. It becomes painfully obvious to the Judges that Mr. Kennedy is not serving his suspension and that the reason that he is able to circumvent his suspension is that some ORC licensees are not respecting the ORC suspension regarding Mr. Kennedy and continue to use his services while they are fully aware that use is in contravention of the rules.
A suspension is the most significant tool that the Ontario Racing Commission has at its disposal to achieve deterrence and to ensure compliance with the Rules of Racing. Compliance with The Rules of Racing is critical to the very survival of the horse racing industry. The rules were established to ensure the integrity and fairness that gives the public confidence in the product of racing which in turn allows participants to enjoy a livelihood in racing.
The Judges find it troubling in the extreme when a licensee will not honour and respect the suspensions assessed to violators of the rules. When we allow our suspensions to be ignored they become ineffective. If we allow suspensions to become ineffective and the “laughing stock”, then what are we left with as an industry?
Fines of up to $1,000 and stayed suspensions of 30 days levied in the past, for using suspended veterinarians have been less than effective. We appreciate that the past penalties were issued in the hope that these penalties would serve to educate the industry, and end this practice. However it is obvious by the case before us that past penalties for using suspended veterinarians have not had the desired effects.
As Judges, we are determined to end the practice of using suspended veterinarians, and any suspended person for that matter. We absolutely disagree with Mr. Fletcher when he states that there was no harm done.
In reviewing Mr. Fletcher’s past record we find two major suspensions of sixty days each, since 2003, plus other lesser violations. While one could argue that the two 60 day suspensions of the past have not stopped Mr. Fletcher from committing the violations before us today and that more is required now, we do consider that Mr. Fletcher is somewhat contrite, and has admitted to the use of Blaine Kennedy, and as well that he understands that he should not have done so. The Judges have therefore resisted going to a greater suspension in this case. We nonetheless consider the use of suspended persons an assault on the industry.
In regard to the use of suspended veterinarian Blaine Kennedy and the violations of ORC rules 1.09, 6.20(b) and 26.17, the Judges, by majority decision, find that a full suspension of 60 days plus a fine of $1500, plus two years probation with conditions, is justified and warranted, when considering the current violations and the past record of Mr. Fletcher. Such a penalty should act as a specific and general deterrent, and will send a message to the industry that ignoring suspensions properly issued by the ORC, and subsequently using any suspended person will have serious consequences. The Judges issued rulings SB41292 and SB41293.
With respect to violation of ORC rule 6.27 (misleading investigator Biernes) the judges considered Mr. Fletcher’s confession and apology and thus find that a fine of $500, which is within the range of penalties normally assessed for violations of this rule, would be fair and sufficient in these circumstances. The Judges have issued ruling SB41294.
Any and all ownership transfers of horses owned wholly and or in part by Mr. Fletcher must be approved by this panel of judges. Any and all trainer transfers of any horses currently trained by Mr. Fletcher, for the duration of the suspension must be approved by this panel of judges.
The Judges earlier suspended the horse “Flamewalker” for 30 days in accordance with ORC ruling SB225/2005.
Judges: Wm. Maertens, Don Lawrence
Judge Rick Rier’s reasons for decision regarding Investigator report file number 10-23 concerning trainer Patrick Fletcher (#R89251).
By virtue of Pat Fletchers statement to Inv. Charlie Beirnes on January 20, 2010 conducted at Flamboro Downs, he has admitted that he used the services of suspended vet Dr. Blaine Kennedy on the horse Flamewalker. Furthermore, during the Judges hearing held at Mohawk Racetrack on February 10, 2010, Pat Fletcher again acknowledged that he used the suspended vet to perform three x-rays of the horse Flamewalker's mouth. This was the extent of the vet services performed.
Mr. Fletcher testified that he received the horse Flamewalker into his care on January 7. That morning, Mr. Fletcher was at the Mohawk qualifiers and when he returned to his barn at Fintec Stables he did not see the horse as he was stabled in a different stall away from the majority of his horses due to stall availability.
The following morning, January 8, Mr. Fletcher asked a groom to bring Flamewalker over to his regular stable area so “we can have a look at him”. The groom brought the horse, and his feed tub over. They noticed that the horse had not eaten much, if at all, since his arrival. Also, Mr. Fletcher noticed that the horse’s mouth was not right, being;
- he had three teeth noticeably misplaced
- his lip (mouth) was not fully closed
- his gum area was a black/purplish colour and appeared infected
- the horse had a temperature of 103 degrees
- the horse had not eaten
This was the first time trainer Pat Fletcher had seen the horse Flamewalker. He testified that he was immediately concerned for the horse’s health and feared that his jaw may be broken. He contacted the owner to inform him of the horse’s condition and indicated the horse was, in his opinion, in distress. The owner informed Mr. Fletcher that the horse had been injured on or about December 25, 2009 by having his head caught in a stall gate. Following this conversation with the owner, Mr. Fletcher observed Dr. Blaine Kennedy's truck enter the Fintec Stable property. He testified he was concerned for the horse’s health and felt he needed immediate attention and as such, he summoned Dr. Kennedy to come and have a look at Flamewalker's mouth. The testimony was that on observation, Dr. Kennedy felt there was a 90 percent chance the jaw was broken and that x-rays should be taken. As stated, three digital x-rays where performed, indicating the jaw was not broken. However, the mouth was definitely infected. Mr. Fletcher testified he drove to the local farm store to purchase penicillin and started the horse on that along with bute for the temperature and infection. There was no further vet work performed by Dr. Blaine Kennedy
Mr. Fletcher testified that there are no large animal vets that perform emergency calls close by to Fintec stables and, he felt that trucking this horse in his current state would not be appropriate.
Aggravating Factors
Mitigating Factors
- Pat Fletcher has been licenced with the O.R.C. has a trainer for approximately 21 years. His opinion that the horse was in distress due to the conditions of his mouth as he observed should carry some weight.
- The health and welfare of the horse has been addressed at several levels by the O.R.C. The fact that Flamewalker had an obvious infection, misplaced teeth, an elevated temperature, and had not eaten was rightfully so of concern to Pat Fletcher.
- Pat Fletcher knew that Dr. Kennedy was suspended but, was concerned enough for the horse that he thought the horse’s health should come first. Dr. Kennedy was the first vet he seen after observing Flamewalkers mouth.
- There are numerous previous cases where trainers have used the services of suspended vets. Penalties have ranged from a $200 fine on the thoroughbred side to $1,000 on the standardbred side. The later of which were reduced to penalties of $100 as determined by a panel of Commissioners. There is not just one precedent, but approximately 16 prior cases.
- The horse Flamewalker has been suspended for a period of thirty days as a result of having work performed by Dr. Blaine Kennedy, which has not been done in the previous cases.
- Pat Fletcher did not attempt to enter the horse Flamewalker to race, as indicated could be considered a violation, in the ORC notice to the industry dated September 22, 2005
Decision
Based on the case facts, there is no doubt that Dr. Blaine Kennedy provided a vet service to trainer Pat Fletcher by x-raying the horse Flamewalker. A violation of O.R.C. rule 6.20(b) and 26.17, a fine of $1,000. and a 15 day full suspension. As well, a separate ruling for a probationary period of two years allowing O.R.C. investigators access to his stabling area at anytime.
Further, Pat Fletcher admittedly mislead Inv. Beirnes during his first statement on January 17. A separate ruling for a violation of O.R.C. rule 6.27, a fine of $500.
O.R.C. Judge Rick Rier