In an obstetrical malpractice action, the defendant midwives and physicians brought motions for an order compelling the infant plaintiff and his biological parents to undergo blood tests for specific genetic testing.
The defendants argued that the infant's severe neurocognitive impairments may have a genetic etiology rather than being caused by perinatal hypoxia.
The plaintiffs opposed the motions, arguing that the court lacked jurisdiction to order genetic testing due to the federal Genetic Non-Discrimination Act, and that the defendants were liable for all injuries under the thin skull doctrine regardless of any genetic predisposition.
The court held that it has the authority to order genetic testing under section 105 of the Courts of Justice Act and Rule 33.
Finding that the possibility of a genetic cause was not frivolous and that the factors of fairness, necessity, and prejudice weighed in favour of the defendants, the court ordered the infant and his biological parents to provide blood samples for genetic testing.