Yet to be asked

Sometimes, you come across a truly unusual fact-pattern, and this is one which I found very interesting, albeit somewhat reminiscent of "shuttlegate" from the Olympics.

The case is Husbands v. Grubb, ORC, and it involves a jockey who was disciplined by the Ontario Racing Commission for "failing to perservere with his mount".  He had successfully appealed the discipline, and then sued for malicious prosecution.

On November 30, 2008, Simon Husbands rode a horse called Bug's Boy in a race at Woodbine.  His brother, Patrick, was also riding in the race (on "Come On Love"...horse names, really), and was having an excellent season - if he won the race, he would have the most wins at Woodbine for the season.  As it happens, Patrick won the race, and Simon placed a close second.  However, many commentators noted that Simon didn't really appear to be trying.  He wasn't whipping the horse, "hand driving" (urging the horse forward with hand movements), or "scrubbing" (hand movements plus rubbing the horse's neck with the whip).

The race announcer commented during the race that Bug's Boy had "yet to be asked" (for his best effort).  A Toronto Star horse racing blogger also wrote a critical post, and other bloggers have argued that Simon obviously wasn't trying to win.

Sounds like the South Korean badminton ladies' doubles teams at the Olympics, no?

Well, not so clear-cut.  The motions judge, in this case, describes Bug's Boy as "an undistinguished horse".  He had never before done better than fifth place, and his owner was "ecstatic" with the result.  In fact, the owner confirmed that Simon had driven Bug's Boy exactly as he had instructed, because the horse responded poorly to whipping and scrubbing.  Nor was this the first time Simon had ridden the horse - he had ridden him the previous week, in a very aggressive style, to a very poor finish.

So the narrative makes sense.  Aggressive riding isn't a winning formula on that horse, as Simon had satisfied himself, so he tried a more laid back approach.  And it paid off, with a second place finish.  But, because it happened to be an important race for Simon's brother, the optics are off.

The malicious prosecution suit was doomed from the outset for exactly that reason.  The ride was innocent enough (there remain those in the horse world, apparently, who think that there was misconduct, but if the owner of the horse - who keeps the purse for winning - wasn't upset, I'm inclined to assume that everything was above-board).  However, the optics really were bad, and there's no reason to think that there was necessarily malice or bad faith involved in pursuing the discipline.  Where there's reasonable or probably cause to prosecute, or an absence of malice, a malicious prosecution action is dead in the water.

*****

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