Were Motherisk’s hair tests reliable? Did the lab meet forensic standards?
These questions, answered nearly three years ago in a government-commissioned review that exposed a litany of failings at the Hospital for Sick Children’s former drug-testing tab, were revived Wednesday in Toronto Divisional Court, where the ongoing battle over a proposed national class-action lawsuit highlighted a hard truth for thousands of alleged Motherisk victims: When it comes to the fight for compensation in any given case, the damning conclusions reached by retired judge Susan Lang remain up for debate.
The hearing was an appeal by the proposed lead plaintiff — a Toronto mother who claims her access to her son was limited for several years due to Motherisk’s flawed testing — of Superior Court Justice Paul Perell’s decision not to certify the case because of the “intensely individualistic nature of the claims.”
“The significant damages are caused not by the common unreliability of the tests, but by an individual’s test being wrong with sometimes tragic consequences,” Perell concluded late last year. “Class members should not suffer the disappointment of a class action that will not take them far enough on the path to substantive justice.”
However, the plaintiff’s lawyer, Kirk Baert, argued in court on Wednesday that because “nothing has been conceded in terms of liability” by the defendants, who include Motherisk’s founding director, Dr. Gideon Koren, former lab manager Joey Gareri and Sick Kids, there are substantial — and outstanding — shared issues related to the conduct of the lab.
When pressed by the three-judge panel about whether Sick Kids admits Motherisk’s hair tests did not meet internationally recognized forensic standards, hospital lawyer Kate Crawford said, “We don’t make a full denial. We need to look at the circumstances of each test . . . Any court is going to have to look at every case. There is no across the board answer.”
Crawford said that a class-action is not the “preferable” way to decide these claims — which is one of the tests for certification — because establishing negligence hinges on proving that the results were false and that those tests led to a negative outcome in each case.
Justice Fred Myers challenged her on that point, asking her if “every person should have to sue the government of Ontario” to determine whether the tests were unreliable “when Justice Lang has already told everyone who reads a newspaper that is the case.”
“How is that preferable?” he said.
Beginning in the 1990s, Sick Kids made millions from Motherisk’s hair tests, which were admitted in a handful of criminal cases and thousands of child welfare cases — primarily by children’s aid societies, as evidence of parental substance abuse — until late 2014, when a Star investigation exposed questions about the reliability of Motherisk’s results.
In December 2015, Justice Lang concluded that Motherisk’s results from 2005 to 2015 were “inadequate and unreliable” and that the lab “fell woefully short of internationally recognized forensic standards.”
Lang’s review led to a second probe of nearly 1,300 individual Ontario child protection cases. Motherisk Commissioner Judith Beaman concluded in February that 56 families were “broken apart” by Motherisk’s faulty testing.
“The testing was imposed on people who were among the poorest and most vulnerable members of our society, with scant regard for due process of their rights to privacy and bodily integrity,” Beaman wrote in her report.
Reuniting these families has proved difficult, because, once finalized, adoptions are virtually impossible to overturn.
In court on Wednesday, Koren’s lawyer, Darryl Cruz, said the “big problem” with the proposed class action is that it has “a poor foundation.”
“The plaintiff’s entire case is premised on the Lang report. The Lang report was good work but it was directed at something. Her task was not to determine responsibility of any person. She was looking at something very different,” Cruz said. “She was not determining whether anyone met the cause of action of any negligence claim.”
The three-judge panel reserved its decision.
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Rachel Mendleson is a Toronto-based investigative reporter. Follow her on Twitter: @rachelmendleson