Second phase of Richard Moreau appeal hearing begins

by Melissa Keith

Following an April decision by the Ontario Horse Racing Appeal Panel (HRAP), the appeal hearing of trainer Richard Moreau moved into a second phase which began on Friday (July 17). Counsel for the Defense, Jean-Marc MacKenzie, had previously argued that evidence against the 10-time Canadian Trainer of the Year failed to meet forensic integrity standards. The panel determined that the appeal’s first phase did not eliminate the need for part two.

“This is not a case involving a trainer who ignored his obligations,” MacKenzie said. “It’s not a case involving a trainer who disregards the rules. The evidence will demonstrate a trainer who took his responsibility seriously.”

He added that “responsibility should be proportionate to control,” suggesting that Moreau was not the person with the most control over Funtime Bayama when the gelding tested positive for the prohibited performance-enhancer DPO (darbepoetin alfa).

“That is why the rules look beyond titles; because titles alone cannot tell the complete story,” MacKenzie said describing how a trainer may be only nominally in charge of a horse. “Control does. Authority does. Decision-making does.”

This was the alleged scenario when Moreau was listed as Funtime Bayama’s trainer, but Sylvain, Justin, and Yves Fillion (of Bayama Farms Inc. of Saint-Andre-D’Argenteuil, QC) were largely in charge.

The first witness for the appellant was Dr. Christoph Grossenbacher, who was questioned by Jean-Marc MacKenzie’s nephew, Robert MacKenzie, a Cornell University law professor and member of the Ontario and New York bars. Grossenbacher introduced himself as “a veterinarian with a special interest in standardbred racetrack medicine” who has been working in Guelph and Rockwood, ON for the past 15 years.

Grossenbacher told the panel that Moreau had been among his major clients for nearly a decade prior to the trainer’s 10-year suspension, which began on July 23, 2024.

“He was one of the most careful people I have ever dealt with,” said the veterinarian, referring to Moreau’s diligence about medications.

He called Moreau’s farm “probably one of the nicest farms, if not the nicest barn, I deal with,” with horses “extremely well taken care of” and “conservative” veterinary treatment.

Robert MacKenzie asked Grossenbacher if he knew the Filions. He replied that had initially met four-time O’Brien Driver of the Year Sylvain and his father, Yves, when Stephane Laroque trained some of their stable. Grossenbacher said he had treated Funtime Bayama when the horse was 2 and shipped a common joint supplement (glycosaminoglycan) to Bayama Farms for him in early 2024.

When Funtime Bayama returned to Moreau’s farm in April 2024, Grossenbacher resumed treating him at a frequency “higher than other horses,” but with “the regular, run-of-the-mill, standardbred racetrack practice.” He said that when he worked with Funtime Bayama, he usually spoke with Yves on the phone or with Sylvain in person.

“[T]hey were kind of directing me and I was discussing that with Richard, and Richard basically says, ‘Whatever they need, they can get. They’re fine; they know what they’re doing,’” Grossenbacher said.

Robert MacKenzie asked how often he had visited the gelding between April and June 2024.

“I don’t have many healthy patients that I see that often… I would say it’s unusual,” Grossenbacher replied, placing Funtime Bayama in the top 2 per cent of his patients by frequency of visits.

“It’s maybe a bit less unusual when we look at the fact that [Funtime Bayama] was clearly pointed to the two biggest races of the early season [for 3-year-old pacers]… the North America Cup and the Meadowlands Pace. With Richard, less was more. With this horse, I did get the impression that more was more… But nothing that I ever thought would harm the horse.”

The veterinarian described Funtime Bayama as “generally in very good health.”

“What would be a reason for running and tracking the hematology and continued hematology tests?” asked Robert MacKenzie.

Grossenbacher said, “You would try and gauge the fitness of the horse through red blood cells.”

He said he knew of DPO being used to stimulate production of red blood cells and raise hematocrit (red cell volume in blood) and hemoglobin (oxygen-carrying protein in red blood cells); a horse administered DPO would have “at least a 10 per cent improvement of those values,” and “there’s no [permitted] substance that will jump red blood cells like that.”

Counsel for the Registrar Brendan van Niejenhuis reminded Grossenbacher about a Lasix overage in Moreau-trained Real Willey in July 2023.

“Do you recall that although there was a variation ordered of the penalty applied, that Mr. Moreau’s responsibility as trainer was upheld in that case because of the absolute liability rule?” van Niejenhuis asked.

Van Niejenhuis questioned Grossenbacher about DPO detection. The veterinarian said he didn’t use the long-acting substance, which is not evident in a complete blood count.

“It’s not really something you consider, especially of a high-level, multiple award-winning, very well cared for barn… I would not expect any of my clients to be using it,” Grossenbacher said.

He said that his work with Funtime Bayama ceased after June 17, 2024, when the horse was sold.

Dr. Garth Henry was the next witness to testify. The longtime standardbred vet said he had “known and worked for Richard [Moreau] for many years” in Montreal.

“[We] started out as an employer-employee relationship; he was working for me in Montreal when he was first getting into the business,” Henry said.

He called Moreau “a top-notch [veterinary] client” and friend. They purchased Moreau’s current farm together, maintaining the business partnership for around six years.

Robert MacKenzie asked Henry about why a trainer would request bloodwork on a horse.

“Almost exclusively poor performance,” he replied. “I can honestly say I can never remember looking at a blood [test] for Richard just because he wanted to know the numbers.”

Funtime Bayama’s AST and creatine kinase levels on multiple tests showed “zero evidence of myopathy” (tying up), said Henry.

When MacKenzie inquired about the five blood tests conducted on Funtime Bayama between late April-early June 2024, Henry called them “excessive.”

“I can’t remember in 40 years ever pulling that many blood tests in such a short period of time on a horse that was racing,” Henry said. “It would be totally different if the horse was in the hospital, the horse was sick, recovering from an infection.”

Henry said he had learned about EPO and the “longer-acting” DPO before they became illegal in racing.

“I would say late ‘90s, 2000, this product became of interest to horse trainers,” he said.

Owners looking to bypass a trainer with veterinary requests remain uncommon.

“In the extremely rare times that has happened in my career, after I finished the discussion with the owner, before I did anything, I would contact the trainer and say, ‘FYI, your owner has asked me to do this,” said Henry, remarking that the case was “a very unique situation.”

“I can’t think of any other owner that has more training, farm, breeding, veterinary, experience than the Filion family,” he said. “The owners that I worked for, they were businessmen… They didn’t have the knowledge or the experience to even initiate an equine therapeutic program at any level, whether it be EPO or antibiotics.”

HRAP chair Stanley Sadinsky asked Henry, “If you were the trainer of record and responsible for the horse, wouldn’t you be curious as to why all these blood tests were being asked for?”

Henry replied, “We’re talking about this specific situation with the Filions and Funtime Bayama. “They’ve run thousands of blood tests in their career. I’m not going to be the one to tell Yves Filion that this horse doesn’t need a blood test… Is it abnormal? Yes. Is it worth picking a fight with an owner, a trainer, a veterinarian? Probably not.”

The hearing continues on Tuesday, July 21.