Lawyers spar over Motherisk class-ac­tion

Law­suit’s fate rests on judge, whose ver­dict could set off years of le­gal wran­gling

Toronto Star - - GTA GREATER TORONTO AREA - RACHEL MENDLESON STAFF RE­PORTER

Motherisk’s flawed hair-strand tests tainted thou­sands of child pro­tec­tion cases across Canada, but was ev­ery par­ent who tested pos­i­tive for drugs or al­co­hol po­ten­tially harmed in some way? How much is that harm worth? And what’s the best way to de­ter­mine who should pay?

Th­ese are among the com­plex ques­tions that were de­bated in a Toronto court­room this week in the high-stakes bat­tle over the fate of a pro­posed na­tional class-ac­tion seek­ing mil­lions in dam­ages for fam­i­lies af­fected by the litany of fail­ings un­cov­ered at the Hospi­tal for Sick Chil­dren’s Motherisk Drug Test­ing Lab­o­ra­tory.

Whether the class-ac­tion will pro­ceed is now in the hands of Su­pe­rior Court Jus­tice Paul Perell, who re­served his rul­ing on Thurs­day.

His de­ci­sion will play a key role in shap­ing what prom­ises to be years of le­gal wran­gling in the fall­out from the problems at Motherisk. Al­ready, some 275 plain­tiffs are named in a se­ries of in­di­vid­ual law­suits against Sick Kids and the ma­jor play­ers at the lab, the court heard.

“This class-ac­tion is for the thou­sands of fam­i­lies who have re­ceived an apol­ogy but no com­pen­sa­tion,” Rob Gain, a lawyer for the plain­tiff, told the court, at the out­set of the two-day hear­ing to de­ter­mine whether the case meets the bar for class-ac­tion cer­ti­fi­ca­tion.

The pro­posed class in­cludes any­one who had a pos­i­tive Motherisk hair test between 2005 and 2015, the pe­riod dur­ing which a govern­ment-com­mis­sioned re­view by re­tired judge Su­san Lang con­cluded Motherisk’s re­sults were “in­ad­e­quate and un­re­li­able” for use in le­gal pro­ceed­ings. (Close fam­ily mem­bers of those who tested pos­i­tive are also in­cluded.)

Gain ar­gued that a class-ac­tion is the best way to en­sure ac­cess to jus­tice to a vul­ner­a­ble group of peo­ple who suf­fered a shared harm due to Motherisk’s faulty tests, rang­ing from par­ents who briefly came un­der the scru­tiny of a child wel­fare agency to cases where chil­dren were re­moved per­ma­nently.

“When you’re deal­ing with the child pro­tec­tion regime . . . and there’s a test re­sult from the lab show­ing drug or al­co­hol abuse, it is not dis­cre­tionary what a Chil­dren’s Aid So­ci­ety does. They must act,” he said. “That act is com­mon to the en­tire class.”

How­ever, that ra­tio­nale was re­jected by the de­fen­dants, who in­clude Sick Kids, Motherisk’s founder and long­time di­rec­tor, Dr. Gideon Koren, and for­mer lab man­ager Joey Gareri, who ar­gued that a class-ac­tion is not ap­pro­pri­ate be­cause the cir­cum­stances in each case are highly in­di­vid­u­al­ized. Koren’s lawyer, Dar­ryl Cruz, told the court that his client “ob­vi­ously op­poses cer­ti­fi­ca­tion.”

Cruz said a neg­li­gence claim may be valid in some in­di­vid­ual cases, but only if the plain­tiff proves there was a false pos­i­tive Motherisk re­sult, and that re­sult led to neg­a­tive con­se­quences.

“The link between what hap­pened at Motherisk and th­ese out­comes . . . is ab­so­lutely cru­cial and not sim­ple,” he said.

“In each and ev­ery claim, one needs to con­sider: Who are the var­i­ous play­ers? How do they re­late to one an­other? How does the out­comes flow from the var­i­ous play­ers?”

Sick Kids lawyer Kate Craw­ford said the hospi­tal is “very will­ing to en­gage in dis­cus­sions about com­pen­sa­tion with the ap­pro­pri­ate peo­ple in ap­pro­pri­ate cir­cum­stances,” but does not ac­cept that there are “any com­mon is­sues” that could be lit­i­gated through a class-ac­tion.

Although much of Motherisk’s hair-test­ing was per­formed at the re­quest of child wel­fare agen­cies, some of the lab’s tests were or­dered by physi­cians for clin­i­cal pur­poses, which shows the re­la­tion­ships between the lab and the pro­posed class mem­bers are “dif­fer­ent in ev­ery case,” Craw­ford said.

Com­pli­cat­ing mat­ters fur­ther, the lab’s prac­tices were “not con­sis­tent” and changed over time, as did the in­ter­na­tion­ally ac­cepted stan­dards for hair-test­ing, which evolved as the sci­ence ad­vanced, she said.

The pro­posed lead plain­tiff is a mother whose ac­cess to her son was “re­peat­edly in­ter­fered with as a re­sult of un­re­li­able (Motherisk) hair tests” from 2009 to 2012, ac­cord­ing to the plain­tiff’s writ­ten ar­gu­ments.

If the class-ac­tion is cer­ti­fied, the mem­bers of the class, how­ever it is de­fined, will have to choose whether they want to pur­sue in­di­vid­ual claims or join the class pro­ceed­ing.

The hear­ing did not deal with the mer­its of the case. In a state­ment of claim, the plain­tiff ar­gues the de­fen­dants were “neg­li­gent in (their) op­er­a­tion and su­per­vi­sion” of Moth- erisk and were re­spon­si­ble for the con­se­quences that fol­lowed. In his state­ment of de­fence, Koren de­nied the claims, ar­gu­ing the tests were “ac­cu­rate and re­li­able for their in­tended pur­pose” of pro­vid­ing clin­i­cal in­for­ma­tion “rel­e­vant to the med­i­cal care and safety of chil­dren.” In a joint state­ment of de­fence, Sick Kids and Gareri also dis­puted the claims, and said that if cus­tody de­ci­sions were based on the tests, which they de­nied, chil­dren’s aid so­ci­eties were re­spon­si­ble.

Queen’s Park ap­pointed Lang to probe Motherisk in late 2014 af­ter a Star in­ves­ti­ga­tion ex­posed ques­tions about the re­li­a­bil­ity of the lab’s hair tests. Sick Kids ini­tially de­fended the re­li­a­bil­ity of Motherisk’s test­ing, but re­versed course in the spring of 2015 af­ter the hospi­tal learned it had been mis­led about Motherisk’s in­ter­na­tional pro­fi­ciency test­ing re­sults, and closed the lab.

Sick Kids CEO Michael Ap­kon is­sued a pub­lic apol­ogy in Oc­to­ber 2015. Koren re­tired in June of 2015 and is now work­ing in Is­rael.

An in­de­pen­dent com­mis­sion is now prob­ing in­di­vid­ual child pro­tec­tion cases in On­tario to de­ter­mine whether Motherisk’s hair tests had a sig­nif­i­cant im­pact on in­di­vid­ual de­ci­sions to re­move chil­dren from their fam­i­lies. Rachel Mendleson can be reached at rmendle­son@thes­tar.ca

BERNARD WEIL/TORONTO STAR

Re­tired judge Su­san Lang had con­cluded in her re­view that Motherisk’s re­sults were “in­ad­e­quate and un­re­li­able” for use in le­gal pro­ceed­ing.

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