Despite the “knee-jerk denials” of Motherisk experts and the Hospital for Sick Children, it wouldn’t be hard to prove in court that the lab’s drug and alcohol hair tests were broadly unreliable. However, establishing this fact wouldn’t advance individual cases enough to make a national class-action lawsuit the right approach for thousands of families seeking compensation.
That is the finding of a Toronto Divisional Court, which has upheld the decision of a Superior Court judge not to certify the class-action lawsuit because of the highly individualistic nature of the claims by those who say they lost their children or were wrongly convicted due to the flawed testing.
“In this case, the class members were not harmed by the tests being systemically unreliable. Rather, only class members who can show that they received a false test result and that the false test result caused them to suffer an adverse outcome in legal proceedings will have compensable claims,” Justice Fred Myers wrote in a unanimous decision, which makes clear that Motherisk victims face a “very difficult” road.
But the battle is not over for the plaintiff, a Toronto mother who claims access to her son was limited for several years because of Motherisk’s faulty testing. The testing was deemed “inadequate and unreliable” for use in court from 2005 to 2015 in a government-commissioned review by retired judge Susan Lang, following a Star investigation.
“The people who were harmed by the Motherisk laboratory deserved better than this,” said the plaintiff’s lawyer, Kirk Baert. “This isn’t the last word by any means. We will be seeking leave to appeal to the Ontario Court of Appeal and I am confident we will obtain it.”
Sick Kids made millions from Motherisk’s hair tests, which were used for decades in a handful of criminal cases and thousands of child protection cases, primarily by child welfare agencies as proof of parental substance abuse. In many of these cases, satisfying the criteria for compensation the Divisional Court has outlined will be challenging, because Motherisk did not follow proper chain-of-custody procedures and did not have a records retention policy from 2005 to 2010.
Baert argued in court last week that despite Lang’s findings, the defendants in the case — Motherisk’s founding director Dr. Gideon Koren, former lab manager Joey Gareri and Sick Kids, which housed the lab until it was shut down in 2015 — continue to deny that the tests were unreliable and failed to meet forensic standards in every case, making these significant “common issues” for the roughly 9,000 individuals who tested positive for drugs or alcohol from 2005 to 2015.
However, Myers said, in light of Lang’s findings, “I doubt that proof of the systemic issues will be a particularly difficult piece of litigation,” because the defendants “cannot ignore the reality that … a party will be able to point to the evidence unearthed very publicly on these points if they arise.”
Koren’s lawyer, Darryl Cruz, said in an email on Tuesday that the Divisional Court made the right decision.
“While it is tempting to look to the Lang Report as a way to simplify a case, that report was never directed at questions related to civil liability. Proof of concerns related to the general reliability of any testing will not make advancing individual claims easier,” he said, adding that a class-action is “clearly not the preferable procedure” in this case.
A Sick Kids spokesperson said “the hospital respects the court’s decision to uphold” the initial ruling.
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