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

AND IN THE MATTER OF DR. ROBERT MCMARTIN

Dr. Robert McMartin, through his counsel, brought a motion for an order summarily allowing his appeal and setting aside the Stewards’ decision in Ruling TB 2002-152 fining him the sum of $1,000 for incorrectly labeling a medication, diazepam (valium) prior to distribution to thoroughbred trainer Phillip Gracey in March and April 2002 with a recommended withdrawal time of 36 hours.

The motion was heard by Stanley Sadinsky, Q.C., Chair of the Ontario Racing Commission on July 9, 2003.

Donald Kidd appeared on behalf of Dr. McMartin and Don Bourgeois appeared on behalf of the Administration.

On reading the materials filed and on hearing submissions, the motion was dismissed. The reasons for ruling are attached to this Ruling.

DATED this 14th day of July, 2003.

BY ORDER OF THE COMMISSION Jean Major

Jean Major

Executive Director

REASONS FOR RULING

Dr. Robert McMartin (McMartin), through his counsel Donald G. Kidd, has made a Motion for an Order summarily allowing his appeal and setting aside Thoroughbred Ruling TB 2002-152 fining him the sum of $1,000 for incorrectly labeling a medication, DIAZEPAM (Valium) prior to distribution to thoroughbred trainer Philip Gracey in March and April 2002, with a recommended withdrawal time of 36 hours.

Mr. Kidd argues that there is no live issue which requires a hearing in this matter as it has been decided by a case similar in all material respects involving Dr. Darryl Bonder (Bonder) wherein the Commission found that Bonder was not in breach of Thoroughbred Rule 27.06(6) for labeling the same drug with the same recommended withdrawal time in the year 2000.

In a Motion such as this which is akin to a motion for summary judgment in a civil proceeding, I must determine whether there is a genuine issue for hearing and in this respect, the burden is on the moving party to satisfy me that there is no such issue. Having regard to the material before me and to the submissions made by counsel, I am not satisfied that there is no genuine issue for hearing.

In my view, the decision in Bonder does not in itself determine the issues in this case. First, this case deals with a situation where the administration of Valium was made to a horse that was also taking the drug, OMEPRAZOLE. There is a genuine and live issue for hearing in this matter as to whether the recommended drug clearance time for Valium was proper in these circumstances having regard to the possibility that such time could be affected by the presence of OMEPRAZOLE in the horse’s system. This issue was not dealt with in the Bonder decision. Second, the prescriptions for Valium in this case were issued in early 2002 while the prescription in the Bonder case was issued in 2000. There is a genuine issue for hearing as to whether between 2000 and 2002, there was any information available to practicing veterinarians that would cause them to consider adjusting their recommended drug clearance time for Valium for racing purposes (or even refuse to prescribe Valium at all) when a horse was also being given OMEPRAZOLE.

For these reasons I have concluded that this matter should go to a hearing before a panel of the Commission. I leave it to counsel to agree on any further interlocutory matters that may arise including the dates for the hearing or, alternatively, request a Pre-hearing Conference for these purposes.

DATED this 14th day of July 2003.

Stanley Sadinsky

Stanley Sadinsky, Q.C.

Chair