Donald J. Dow

This motion concerned the finalization of a genetic testing requisition form.

Following previous orders for genetic testing, the plaintiffs objected to the defendants' initial requisition form, alleging bias and incompleteness.

The defendants subsequently provided revised forms incorporating the plaintiffs' expert's suggestions.

The court, noting the experts' agreement on the clinical content of the latest form, ordered the requisition form to be finalized consistent with the defendants' third proposed version, along with a prenatal history.

The court dismissed the plaintiffs' objections regarding the form's content and the governing law/subcontracting terms, finding them without merit.

The midwife and physician defendants sought costs for a motion to vary and settle the terms of an order requiring the plaintiffs to undergo genetic testing.

The parties had settled most issues, but the defendants were successful on the sole contested issue regarding whether the testing laboratory's reports must comply with Rules 33.06 and 53.03(2.1).

The court awarded costs of $12,500 to each of the moving parties, payable in the cause, reflecting partial success and proportionality.

The midwife and physician defendants moved to vary a previous order requiring the plaintiffs to undergo independent medical examinations involving genetic testing.

The variation sought to change the designated laboratory from GeneDX to Blueprint Genetics and extend the deadline, as GeneDX no longer performed testing for legal cases.

The plaintiffs agreed to the change but requested a condition that the laboratory's reports comply with Rules 33.06 and 53.03(2.1) of the Rules of Civil Procedure.

The court granted the motion to vary the laboratory and deadline, but declined to impose the requested condition, finding that the rules apply to examining health practitioners and experts intended to be called at trial, not to the laboratory conducting the tests.

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.

The defendant, Ljudmilla Jefremova, brought a motion under Rule 51.05 of the Rules of Civil Procedure to clarify or withdraw an admission made in a Reply to Request to Admit concerning the location of an abscess in a medical negligence action.

The plaintiff opposed the motion.

The court declined to rule on the interpretation of the admission at this stage, finding it should be considered after trial submissions.

Applying the four-part test for withdrawing an admission, the court found no triable issue regarding the truth of the admission itself, only its interpretation.

Consequently, the motion to withdraw the admission was dismissed.

The plaintiffs brought materials seeking court approval of an infant settlement arising from civil litigation involving multiple defendants and a hospital.

The court invited submissions regarding the characterization of future care payments to the parents, whether settlement materials should be sealed, and whether the solicitor’s affidavit should be sealed and service waived.

The court held that the possible taxation of future care payments is a matter for the Canada Revenue Agency and not determinative for the approval motion.

Applying the open court principle and exercising parens patria jurisdiction, the court declined to grant a sealing order over the settlement documents.

However, the court permitted plaintiffs’ counsel to refile a substitute affidavit after service on opposing counsel.