In the Matter of Darryl Bonder, 2003 CanLII 74641

Thoroughbred veterinarian Darryl Bonder, DVM appealed Stewards Ruling TB 2002-415 of October 16, 2002 wherein he was fined the sum of $1,500.00 for violation of Rule 27.20 of the Rules of Thoroughbred Racing for failing to properly label a bottle of Valium before dispensing.

On May 6, 2003, Chair Stanley Sadinsky, Q.C., Vice Chair Larry Todd and Commissioner Patricia Bullock of the Ontario Racing Commission convened to hear the appeal.

Thomas Teahen appeared on behalf of Dr. Bonder and Don Bourgeois appeared for the Administration.

Upon hearing the testimony of Nelson Ham, Dr. Bonder, and Ted Coker, DVM, upon reading the exhibits filed, upon hearing submissions on behalf of the parties, the Ontario Racing Commission dismissed the appeal with respect to items (1) (2) (4) and (5) enumerated in Rule 27.20 but found that Dr. Bonder was not in violation with respect to item (6) of that Rule. The Ontario Racing Commission imposed a fine of $1,500.

The Commission’s reasons for decision are attached and form part of this Ruling.

DATED at Toronto this 12^th^ day of May 2003.

BY ORDER OF THE COMMISSION (original signed by) Jean Major

Jean Major

Executive Director

Darryl Bonder (Bonder) appeals from the Decision of the Stewards at Woodbine who, on October 16, 2002, found that he had violated Thoroughbred Rule 27.20 in that he failed to properly label a container of Diazepam (Valium) before dispensing it. The Stewards fined Bonder the sum of $1,500,00.

Thoroughbred Rule 27.20 reads as follows:

27.20 A veterinarian who dispenses a drug shall mark the container in which that drug is dispensed with the following information:

Name, strength and quantity of drug
date dispensed
name and address of the dispensing veterinarian
identity of horse(s) for which it is prescribed
name of the trainer of the horse(s) and,
the prescribed directions for use including the appropriate drug clearance time for racing purposes, which shall be at least as long as those suggested in the most recent Canadian Pari-Mutuel Agency Schedule of Drugs.

Many of the facts in this case are not in dispute. Bonder is a partner in the Toronto Equine Hospital and operates his veterinary practice in that name. He is a well-respected veterinarian with 26 years’ experience. In the 2000 racing season, he prescribed the drug Valium to his client trainer April Friesen (Friesen) for use on her horse, ROB THE VET.

The label on the container had no information whatever as to all of the items enumerated in Rule 27.20(1), (2), (4) and (5), and accordingly, there is no dispute that Bonder was in violation of parts of Rule 27.20. The central issue in this case is simply whether Bonder was also in breach of Rule 27.20 (6) as the Stewards had found.

In the year 2000, Valium was not listed in the Canadian Pari-Mutuel Agency Schedule of Drugs although it was a prohibited drug. The evidence given by both Bonder and Dr. Ted Coker, DVM (Coker) indicated that Valium has been prescribed by many Thoroughbred veterinarians in Ontario for at least 17 years for horses that were fractious or that had poor appetites. The usual method of administration was orally (pills) and the dosage was typically between 10 and 30 mg. Both Bonder and Coker testified that they had prescribed Valium in this format to approximately 5% of the horses in their care at any given time. In the case of Bonder, this amounted to 35 to 40 horses a year. Both Bonder and Coker always recommended a withdrawal time of 36 hours although Coker changed his recommendation to 48 hours in 2002 when Valium was designated as a Class II Drug in the Association of Racing Commissioners International categories of prohibited drugs thereby attracting higher penalties for positive tests.

In addition, ten other practicing veterinarians signed a letter (Exhibit 1, Tab 9) indicating that they too had routinely prescribed Valium for approximately 15 years with a recommended withdrawal time of 36 hours.

Bonder and Coker testified that the horses that they had given Valium had never produced a positive test and so they were quite comfortable with the withdrawal time as recommended. The other ten veterinarians also indicated that they too had recommended the same withdrawal time and felt that this was a “safe” practice. A letter from Adrienne J. Stevenson, Manager of Research & Analysis of the Canadian Pari-Mutuel Agency (CPMA) was received in evidence (Exhibit 3) indicating that from 1980 to May 1, 2003, there had been a total of six positive tests from Valium in all of Ontario.

In addition, two further letters were filed on behalf of Bonder from two practicing veterinarians, Dr. John Starmer, DVM (Exhibit 6) and Dr. Jenny Creer, DVM (Exhibit 7). Both letters stated their use of the 36-hour withdrawal time in their respective practices with no positive tests. Dr. Creer also indicated that her source of the 36-hour practice came from Dr. R. McMartin, DVM, a senior equine veterinarian in Ontario, who had told her that the recommendation had come from “the testing laboratory”. Bonder and Coker also testified that this was the source of their information, which led to both of them using the 36-hour rule.

Friesen had a positive test result from Valium in April 2002, albeit on another horse. The investigation of that matter led to the discovery of the medication container in question and to the charge in this case.

The Administration of the Ontario Racing Commission (the Administration) submitted that Bonder should not have made the 36-hour withdrawal time recommendation in 2000. It argued that Bonder (and any other veterinarian who was prescribing Valium) should have checked with someone at the CPMA for its recommendation and should have consulted with the Compendium of Pharmaceuticals and Specialties (CPS) for information as to an appropriate withdrawal time. Had Bonder checked with the CPMA, he might have learned of a Report prepared by that Agency in 1997 titled Analytical Methodology for Detection and Confirmation of Drugs in Equine Body Fluids which had a section on Diazepam. That report indicated that 10 mg of Valium injected intramuscularly could be detected 96 hours following its administration (see Exhibit 1, Tab 7). This Report was not circulated to equine veterinarians but was available to anyone who asked. The conclusions of this Report were subsequently published in the Journal of Analytical Toxicology in January - February, 1999, a journal for analytical chemists (see Exhibit 1, Tab 8). Consulting the CPS would have revealed that Valium has a half life of 48 hours when administered to humans.

It is on this basis that the Administration argued that the withdrawal recommendation made by Bonder on the label in question viz a 36-hour withdrawal time contravened Rule 27.20(6).

Steward Nelson Ham (Ham) gave evidence on behalf of the Administration. He testified that because Valium was not included in the CPMA Drug Schedule in 2000, Bonder was wrong to have made any recommendation as to withdrawal time. We disagree with that view. Bonder should certainly have made a recommendation; the issue is whether the recommendation that was made violated the Rule in question.

Finally, we also read the transcript of the evidence given by Dr. Mike Weber, DVM, (Weber) who is the Manager of Veterinary Services for the CPMA in a case involving a different positive test for Valium in 2002 (Exhibit 1, Tab 6). Dr. Weber explains the content and thrust of Exhibit 1, Tabs 7 and 8, which ultimately lead to the inclusion of Valium in the CPMA’s Schedule of Drugs in 2002, with a recommended withdrawal time of 120+ hours if 10 mg was administered intramuscularly. From Weber’s evidence it is not clear what he would have recommended if asked in the year 2000 as an appropriate withdrawal time for 10 to 30 mg of Valium administered orally.

Having regard to all of the evidence, we have concluded that Bonder was not in violation of Rule 27.20 (6) when he recommended a withdrawal time of 36 hours for the oral administration of 10 to 30 mg of Valium in 2000. Given the state of the information available to him at that time and given his own clinical experience with this medication and the experiences of other veterinarians in Ontario who had prescribed Valium over the past 15 years or so, we have concluded that he acted reasonably in this respect.

It remains to determine the appropriate penalty for the admitted violation of Rule 27.20 (1), (2), (4) and (5). Bonder testified that the omissions in this case were a single error made by a technician in his employment. Otherwise, Bonder indicated that his records were and are complete and accurate.

Nonetheless, we have concluded that the error was serious. The prospect of having containers of drugs in the hands of trainers with no indication of their contents, dosage, or the name of the horse and trainer in question can be extremely dangerous. Accordingly, we impose a fine of $1,500.00.

DATED this 12^th^ day of May 2003.

(original signed by) Stanley Sadinsky

Stanley Sadinsky, Q.C.

Chair