Court File and Parties

COURT FILE NO.: CV-11-00420193-0000

DATE: 20180614

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HEALTH GENETIC CENTER CORP. o/a HEALTH GENETIC CENTER and DR. YURI MELEKHOVETS, Plaintiffs

AND:

NEW SCIENTIST MAGAZINE, PETER ALDHOUS, and REED BUSINESS INFORMATION LTD., Defendants

BEFORE: LEDERER J.

COUNSEL: Ioulia (Julia) Melekhovets, Mark Donald, for the Plaintiffs

Sandra Barton, Erin Farrell, for the Defendants

HEARD: In writing

ENDORSEMENT

[1] This is a defamation action. The personal plaintiff is the developer of a test which he says can identify the paternity of a fetus through the analysis of fetal DNA found in maternal blood. If this is so it is a significant advance. It avoids the intrusion which is necessarily a part of the existing test regime and carries with it a risk (albeit a small one) to the pregnancy. The defendant publishes a magazine. Members of its staff became interested in the test. They conducted an investigation. They became aware of women who had relied on the test only to be told through subsequent traditional tests that the results were wrong. The plaintiff does not accept this. The magazine published an article outlining concerns with the test and its allegedly inaccurate results. The plaintiffs brought this action for defamation claiming damages in the amount of $3.2 million.

[2] The defendants rely upon the defences of justification, fair comment, responsible communication and qualified privilege.

[3] This proceeding has been the subject of a four week trial. All of the evidence that is to be placed before the court has been heard. The only thing that remains is for the parties to complete the final submissions. In this case it was decided that these should be in writing.

[4] Even so the defendants seek to amend their Amended Statement of Defence. This cannot be a surprise to the plaintiffs. On March 19, 2018, the day the trial began, counsel for the plaintiffs raised, for the first time, an objection to the Amended Statement of Defence. On behalf of the plaintiffs it was submitted that this pleading did not contain any specific allegations as to the “propriety” of the underlying science. The defendants did not accept that this was so. Rather it was said that a fair reading of the Amended Statement of Defence would suggest that what was alleged to be missing was not. Nonetheless, the defendants indicated a desire to amend the pleading to clarify the issue. As the trial judge I understood it to be the view of counsel for the defendants that this was to be undertaken out of an abundance of caution. This understanding does not in any sense detract from the competing perspective of counsel for the plaintiffs that the Amended Statement of Defence did not plead that the underlying science was faulty.

[5] The need for the motion was set aside while the trial went on. It was always understood that such a motion would be brought. The need to complete this task was raised at the conclusion of the trial. The material supporting the respective positions was filed. Upon the question as to the need for this decision both counsel acknowledged it could wait for my return from a vacation.

[6] I say all of this to establish my view that the motion should be decided on its merits and not be determined based on the timing of the motion or this decision. To put it another way the trial was carried out with all parties understanding that a motion for an amendment would be forthcoming. There were witnesses on both sides who provided evidence as to concerns about, and support for, the science.

[7] Even so the plaintiffs object.

[8] The rule allowing for amendments is broad in its scope:

26.01 On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.[^1]

[9] Rule 26.01 makes it mandatory for the court to grant leave to amend unless prejudice would result to the opposing party. This has been explicitly recognized by this court:

It is well settled that the use of the mandatory language in Rule 26.01, the word, “shall”, has reduced the Court’s former discretion to refuse an amendment. Amendments to pleadings, at any stage of the action (including at trial), are presumptively approved: That is the general principle. Unless prejudice would result from the amendment that could not be compensated for by costs or an adjournment, the granting of the amendment is mandatory.[^2]

[10] The burden of showing prejudice lies with the party opposing the amendment.[^3] The plaintiffs submit that once the evidence has been closed the absence of non-compensable prejudice to the responding party must be clearly made out. This would seem to reverse the general understanding of the onus to show prejudice being with the party opposing the amendment. In making this submission counsel for the plaintiffs has referred to Gowenbrae Realty Developments Ltd. v. McLean-Piester Ltd.[^4] The radical nature of the submission suggests the need to look closely at the case. It transpires that the circumstances to which this change applied is limited and does not apply to the case before this court. That case concerned a contract for the construction of the expansion to a golf course. At trial the claim was dismissed. On appeal it was argued that the trial judge had committed a reversible error by failing to address trial evidence that established the legal requirements for negligent misrepresentation. The problem was that negligent misrepresentation had not been pleaded nor had any attempt been made to amend the pleadings. It was during the course of the appeal, when the matter was before the Court of Appeal, that the plaintiff moved to add the new cause of action. It was argued that, on the particular facts, the respondents would suffer no non-compensable prejudice. The Court of Appeal disagreed:

Although the Rules of Civil Procedure permit pleadings amendments at any stage of an action, an amendment to introduce a new cause of action, especially after trial, may only be permitted where an absence of non-compensable prejudice to the responding party is clearly made out.

In our view, as argued by the respondents, had this cause of action formed part of the case against them at trial or if the suggestion of negligent misrepresentation had been a live issue at any point prior to judgment, the respondents’ conduct of the case may well have been significantly different. In particular, the evidence-in-chief of the respondents’ witnesses and the cross-examination of the appellants’ architect, Mr. Moote, may well have focused on the assertion of misrepresentation and the alleged reliance of Mr. Moote and the appellants on inaccurate information provided by the respondents’ representative to Mr. Moote concerning the depth of the reservoir.

For these reasons, the appellants’ motion to amend their pleading is dismissed.[^5]

[11] There has been no trial judgment. This is not the Court of Appeal. In the words of the rule we are still within a “stage of the action”. There is no new cause of action. It is not hard to see why the stricter approach is applicable when there is. A case for a defendant is managed against the requirements a plaintiff must meet to prove its claim for the cause or causes of action pleaded. A different cause of action would have different tests and call for different evidence and a different strategy. On this motion the amendment does not propose that there be a new cause of action or even a new defence. Justification is pleaded in the Amended Statement of Defence. As a defence justification requires that the alleged defamatory statements are justified, that is, are true or at least substantially true. The supposedly defamatory statements are not changing. What must be shown to be true or substantially true is not changed. Rather it is the nature of the evidence that may prove this truth that is said to be changing. Not only are there women complaining that the results were inaccurate, the whole underlying science is flawed confirming that the tests are not reliable. The major change is to add the following clause:

The evidence relied upon as part of the defendants investigation supports the conclusions that; (a) that tests results are unreliable; (b) the test itself is unreliable; and (c) that the accepted science in the field of genetics and relationship testing, did not support the plaintiffs’ methodology as being a valid or reliable (and in fact supported the conclusions in the Article that the plaintiffs’ test results were wrong or otherwise flawed, that the plaintiffs’ test lacks discriminatory power, and that the test is therefore unreliable). Furthermore, the defendants’ expert report prepared by Dr. Bruce Budowle and provided to the plaintiffs on October 31, 2016 further supports the defendants’ defence of justification in that it finds, amongst other things: (a) that the accepted science in the field of genetics and relationship testing, does not support the plaintiffs’ methodology as being a valid or reliable; (b) that the plaintiffs’ test is deficient and not scientifically valid, is prone to errors and is prone to providing flawed and/or in accurate results; (c) that the plaintiffs’ test lacks discriminatory power; (d) that the plaintiffs’ test has never been properly validated; and (e) that the plaintiffs’ test is not reliable.

[12] Counsel for the plaintiffs still see a risk. In Halford v. Seed Hawk Inc.[^6] the trial had begun. For reasons that are not explained counsel for the defendants could no longer continue. New counsel were appointed and a date fixed for the trial to resume. Four months before the appointed date the new lawyers sought, among other things, an amendment to the Statement of Defence “…to more clearly and expressly plead and present Seed Hawk’s defences to the claim.”[^7] Counsel for the plaintiff opposed the motion. The report of the case notes that in some cases the amendments may have been more precise formulations of allegations contained in the Statement of Defence but they also contained new allegations which had not been previously raised.[^8] The objection reflected on the potential for prejudice:

With that background, one can see why Mr. Raber would have serious misgivings about any amendment to the pleadings in the course of a trial. In addition to the tactical issues arising from the flow of the evidence, one now adds the possibility of some fact assuming unforeseen significance as a result of what appears to be an innocuous change in the pleadings. The view of the case which counsel tried to build through the evidence lead may no longer correspond to the language of the amended pleading. Evidence given with one perspective in mind may now open avenues of cross-examination or contradiction not contemplated when the examination-in-chief was planned.[^9]

[13] The court allowed the amendments but sought to overcome the problems (the prejudice) by permitting further examination for discovery and further evidence heard from witnesses who had already testified. Counsel for the defendants points out that, in this case, this solution would be problematic because all the evidence has been called and each case closed.

[14] This puts the question squarely. Is there anything new in the proposed amendments which was not already present in the pleadings and evident from the documents produced prior to or during the trial? In the words of the court in Halford v. Seed Hawk are these changes more precise formulations of allegations contained in the Amended Statement of Defence or new allegations which had not been previously raised? If they are the former there is no prejudice; if they are the latter there may be. Counsel for the defendants is at some pain to be clear in their submission that there is nothing here other than clarification of what was already pleaded and before the court. They say this is confirmed by evidence that prior to the commencement of the trial was identified to be called on behalf of the plaintiff at the trial.

[15] I agree.

[16] Any consideration of this issue should begin with a review of what the proposed amendment says. The second part of the paragraph quoted above refers to the report of Dr. Bruce Budowle. It outlines what the report concludes. The report considers the underlying science and the absence of what Dr. Bruce Budowle considers to be appropriate validation of the test. The report concludes:

Based on the foregoing, it is my opinion that the Plaintiff’s prenatal paternity test on maternal blood has not been properly validated (or validated at all) and is not a scientifically reliable genetic test.[^10]

[17] As noted, the report was delivered on October 31, 2016. The trial began one and a half years later on March 18, 2018. Moreover, in preparation for the trial, pursuant to orders of the court, Dr. Bruce Budowle was required to, and met with experts to be called on behalf of the plaintiffs. The purpose of these meetings was for these witnesses to discuss and identify those scientific issues they could agree to.[^11] This being so the part of the amendment that refers to this report is not new. It confirms what was to be learned from reading the report that was the foundation of the evidence that Dr. Bruce Budowle was to provide at the trial.

[18] The first part of the amendment provides a list of the conclusions to be drawn from the evidence. Presumably, it is the third of the three conclusions that is of concern (“that the accepted science in the field of genetics and relationship testing, did not support the plaintiffs’ methodology as being a valid or reliable”). The Statement of Claim contains assertions which reflect on this and the validity of the underlying science on which the test rely. In alleging defamation the plaintiffs refer to specific statements in the article that was published which refer to the scientific validity of the test. I quote two. The first general and the second more particular:

Our investigation suggests that the results are unreliable-with potentially devastating consequences.

But when we showed the results of two cases from 2008 involving male fetuses to specialists on the Y chromosome’s evolutionary history, it became apparent that something was awry: The combinations of SNP variance report were inconsistent with the Y chromosome’ s known ancestry… However any correct test of Y chromosome SNPS, whether performed to test ancestry or not, will give results that fit with its ancestral tree.[^12]

[19] In the Statement of Claim the plaintiffs assert that these and other allegedly defamatory statements “[i]n their plain and ordinary meaning, including their expressed and implied meanings… meant and were understood to mean, among other things that:”

HGC’s methods of paternity and DNA profile testing are inaccurate and unreliable.

HGC’s paternity test results are accurate, flawed, incorrect and unreliable.[^13]

[20] The Statement of Claim goes on:

The Article also defamed the Plaintiffs by trying to discredit HGC’s methodology, testing analysis and results. The Plaintiffs state that the Defendants made bald conclusions about the Plaintiffs without proper scientific testing or an appropriate correlation study. The Defendants’ findings are misleading, inaccurate and seriously flawed with devastating consequences to the Plaintiffs.[^14]

[21] These paragraphs, separately and together, indicate the plaintiffs’ concern that the overall validity of its test (“incorrect and unreliable”); that each component of its testing regime (“methodology, testing analysis and results”) and its understanding of the fundamental science (“the combinations of SNP variance report were inconsistent with the Y chromosomes known ancestry”) were being questioned. These paragraphs ranging from the general to the specific all respond to expressions of concern that can be taken as originating from the underlying science.

[22] The Amended Statement of Defence, as it stands, responds. A number of paragraphs refer to errors in the test results. This raises the question: What was the cause? Implicit if not arising directly from these paragraphs is the prospect that the underlying science is flawed. Among them are the following:

Some of the plaintiff’s customers have sought a second opinion from labs that use standard STR analysis, and have received results that contradict the results obtained from the plaintiffs.

Thus all three subsequent reports (two from PTC and the one from Identigene) are inconsistent with the plaintiff’s reports.

Prior to publication of the Article, the defendant sought expert opinion regarding the discrepancies between the plaintiffs’ test results and those of the U.K. Lab. The opinion indicated that the plaintiffs’ DNA test results were inaccurate. In addition, the same opinion indicated that the SNP testing performed by the plaintiffs was unreliable in the context of prenatal DNA paternity testing.

Following the publication of the Article, the defendants became aware of another woman who had obtained prenatal DNA paternity test results from the plaintiffs. The plaintiffs’ report, which had issued in January 2010, stated that the alleged father “cannot be excluded as the biological father of the fetus”, and that the markers used were “very unlikely to have similar matches with a random man within a specific human population”. In April 2011, a follow-up test by PTC ruled out the alleged father as the biological father. Thus, the 2010 result from the plaintiff is inconsistent with PTC’s result and unreliable.[^15]

[23] There are others paragraphs which in company with those that point to erroneous results demonstrate difficulties with the underlying science”. Some of these are:

Fetal DNA exists in maternal blood as well, and has been used with some success to detect fetal genes that are not carried by the mother, or to determine whether the fetus is male. Methods using fetal DNA in maternal blood have not easily translated into paternity testing.

An alternative type of DNA testing, one that records single letter variance in the genetic code known as single nucleotide polymorphisms (SNPs), is rarely used in determining the paternity of a fetus, or in paternity testing generally.

In certain instances, the DNA paternity test results provided by the plaintiffs were scientifically implausible. The defendants consulted experts in Y chromosome ancestry, who reviewed the results of the May and June 2008 reports of the plaintiffs, mentioned in paragraph 14(n) of this statement of defence. The eleven SNPs used by the plaintiff were all on the Y chromosome. The experts confirm that the DNA profiles of the Y chromosomes of the fetuses and possible fathers, as generated by the plaintiffs, were inconsistent with known ancestry of the human genome. Thus, the Y chromosome profiles obtained by the plaintiffs in two cases could simply not be correct. In contrast, the S and P results obtained from the U.K. Lab (mentioned in paragraph 14(s), above) were consistent with the Y chromosome ancestral tree.

A comparison of the plaintiffs’ Y chromosome analysis in the 2008 reports to that issued in the 2010 report indicates that the plaintiffs have significantly changed their testing procedures; suggesting that the 2008 tests were unreliable. Only three of the eleven SNP’s used in the 2008 reports were used in the 2010 report. Thus, eight of the eleven SNPs previously it relied upon were no longer used. Further, in the 2010 report, one Y chromosome SNP was either inconsistent with Y chromosome ancestry or the Y chromosome SNP actually tested was not the SNP that was indicated to have been tested in the 2010 report.[^16]

[24] A review of the reports prepared by witnesses prior to the trial and who were called to give evidence on behalf of the plaintiffs demonstrates an awareness that among the issues raised and to be reviewed were concerns for the underlying science. Dr. Dean A. Stetler was one of the experts relied on by the plaintiffs who was required to meet with Dr. Bruce Budowle. His report concludes:

In summary. It is my opinion, based on the materials provided to me by HGC and on my experience with similar testing in my own laboratory, that the prenatal testing performed by HGC on maternal blood is scientifically valid and capable of producing accurate results.[^17]

[Emphasis added]

[25] Dr. Monte Miller was the second expert who met with Dr. Bruce Budowle. He prepared a report that was part of the evidence at the trial.[^18] In this document the witness noted:

It is neither my responsibility nor my goal to opine on the validity of scientific endeavours that have widespread acceptance in order to cite them. Therefore I will note the acceptance as the basis for a specific discussion, but will opine, delineate and apply the principles to the situation at hand.

[26] However, he then goes on:

In order to render this opinion many hours were spent in researching the specifics of PPT as done by HGC in order to make clear the specific placement of exact details in their proper environments. This endeavour was also undertaken to evaluate how wide-spread and accepted are the specific methods utilized. While not cited, sufficient amount and detail was reviewed in order to make any determinations herein listed. Topics included but were not limited to: fetal DNA in maternal plasma, detection of these DNA fragments, SNP detection protocols, consumer PPT options, availability of supplies, participation by commercial industry, availability of tools to evaluate and choose SNPs, commercially available SNPs, and detection kits, commercially available technology and instrumentation, Wikipedia and Y chromosome haplotype SNP tree. While none of this research is herein delineated, it was instrumental in my determination that this technology, as specified in the narrative of this opinion, is at times, widespread, scientifically accepted, and not in need of specific citations due to its universal prevalence.[^19]

[27] At various places in his report, Dr. Monte Miller offers opinions that aspects of the science being relied on are appropriate and accepted; as examples:

It is my opinion that: Blood sample collection procedures are appropriate…

It is scientifically established that: Blood separation is accomplished by standard laboratory practice…

It is scientifically established that: DNA purification is accomplished by standard accepted laboratory practice…

It is my opinion that: The restriction enzymes chosen are suitable for the purposes used…

It is scientifically established that: The science and application of these technologies is trusted by the scientific community…[^20]

[28] It is not that Dr. Monte Miller finds these technologies scientifically accepted that is important. Rather it is the acknowledgement that these questions are in issue and the need to demonstrate their efficacy that confirms that the plaintiffs understood and were aware that the viability of the underlying science was an issue that would be raised at the trial.

[29] I turn to the meetings between Dr. Bruce Budowle, Dean A. Stetler and Dr. Monte Miller. Dr. Budowle described his meeting with Dean A. Stelter as follows:

Pursuant to a court order, I was directed to participate in a “hot-tubbing” session with the plaintiffs’ expert, Dr. Dean Stetler. Following a discussion on February 27, 2017, we reached an agreement with respect to some scientific issues. The issue column sets out the proposition for which I sought agreement from Dr. Stetler. If he agreed with the proposition, an “A” appears in the next column. If he disagreed then a “D” appears in the next column, followed by his explanation as to why he did not agree or fully agree with my proposition.[^21]

[30] Dr. Bruce Budowle has recorded his meeting with Dr. Monte Miller and the ensuing treatment of issues using a similar paragraph.[^22]

[31] There is nothing in this that is not already before the court as forthcoming from the Amended Statement of Defence and the documents that were served prior to the commencement of the trial. The plaintiffs understood that the validity of the underlying science was an issue that would have to be responded to as part of the trial.

[32] I should point out that there were two further paragraphs that were sought to be added as amendments to the Amended Statement of Defence. They are:

The relief sought by the plaintiffs at paragraphs 1(e) and 1(f) of the amended statement of defence is unavailable at law.

In response to paragraph 25 of the amended statement of claim, the defendants acknowledge that they received notice of the plaintiffs’ claim but denied that said notice was under, or in accordance with, the Libel and Slander Act, R.S.O. 1990, c. L. 12.

[33] No comments or submissions are made with respect to these changes. I assume they are unopposed.

[34] Finally, it was not argued but it does seem that the reference to the report of Dr. Bruce Budowle in the amending paragraph (see para. [11] above) is a pleading of evidence to be relied on in furtherance of the defence of justification. Pleading evidence, if that is what this is, is not proper and, in the normal course, could be struck.[^23] In the absence of submissions to this effect I make no further comment. The presence of the reference to this report does not change its admissibility as evidence.

[35] The motion is granted.

Lederer J.

Date: June 14, 2018

[^1]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, s. 26.01

[^2]: Lobsinger v. Zeleny, 2016 ONSC 7441 at para. 23 and see Martin v. St. Thomas Elgin General Hospital, 2016 ONSC 294 at para. 15

[^3]: Ibid at para. 15 referring to Barker v. Furlotte (1985), O.A.C. 75 (Div. Ct)

[^4]: 2005 46627 (ON CA), [2005] O.J. No. 5378 (OCA)

[^5]: Ibid (Gowenbrae Realty Developments Ltd. v. McLean-Piester Ltd.) at paras. 5-7

[^6]: 2001 FCT 668, 2001 CFPI 668, 106 A.C.W.S. (3d) 629, 13 C.P.R. (4th) 36

[^7]: Ibid at para. [4]

[^8]: Ibid at para. [6]

[^9]: Ibid at para. [16]

[^10]: Affidavit of Bruce Budowle, sworn December 7, 2017, at Exhibit 1 (Expert Witness Report of Prof. Bruce Budowle at p.52)

[^11]: Ibid (Affidavit of Bruce Budowle) at para. 3and 4

[^12]: Statement of Claim at paras. 17(b) and (d)

[^13]: Ibid at paras. 18(a) and (b)

[^14]: Ibid at para. 19

[^15]: Amended Statement of Defence at para. 14(i), (q), (u) and (aa)

[^16]: Ibid at para. 14(e), (f),(v) and (bb)

[^17]: Affidavit of Yuri Melekhovets, sworn September 27, 2017 at Exhibit Q (the report of Dean A. Stetler Phd. at p. 4). This quote was read in as part of the evidence of Dean A. Stetler on March 26, 2018 at p. 1432 of the transcript of the trial.

[^18]: Ibid at Exhibit R (Report of Dr. Monte Miller)

[^19]: Ibid at p. 1

[^20]: Ibid at p. 4, 5, 6, 7 and 8

[^21]: Affidavit of Bruce Budowle, sworn December 7, 2017, at para.3

[^22]: Ibid at para.4

[^23]: Perell and Morden, The Law of Civil Procedure in Ontario LexisNexis Canada Inc. 2017 at p. 492 referencing Sun Life Insurance Co of Canada v 401700 Ontario Inc. 1991 7050 (ON SC), [1991] O.J. No. 915, 3 O.R. (3d) 684 (Ont. Gen Div.) and Jacobson v Skurka [2015] O.J. No. 1268, 2015 ONSC 1699 (Ont. S.C.J.)