Court File and Parties

Court File No.: 16-70619 Date: 2021-09-24 Ontario Superior Court of Justice

Between: Andrew Klinck by his Litigation Guardian Joel Klinck, and Joel Klinck, Sara Klinck, Gregory Koenderman and Sherri Lane Plaintiffs

– and –

Ms. Melissa Dorsay, Marcia Pribylousky, Joanne Rack, Dr. Pierre Joseph Huard, Dr. Dante Umberto Pascali, Dr. Valerie Renelle Marie Bohemier, Dr. Pradeep Pranlal Merchant, The Midwifery Collective of Ottawa and The Ottawa Hospital, Civic Campus Defendants

Counsel: J. Arthur Cogan, Q.C., for the Plaintiffs Anita M. Varjacic, for the Defendants Melissa Dorsay, Joanne Rack, and The Midwifery Collective of Ottawa Donald J. Dow and Brieanne Brannagan, for the Defendants Dr. Pierre Joseph Huard, Dr. Dante Umberto Pascali, Dr. Valerie Renelle Marie Bohemier, and Dr. Pradeep Pranlal Merchant No one appearing for the defendant Marcia Pribylousky or the defendant The Ottawa Hospital, Civic Campus

Heard: June 22 and 23, 2021

Reasons for Decision

Ryan Bell J.

Overview

[1] The two motions before me raise the following issues:

(i) Does the court’s authority to order a medical examination of a party extend to an order that compels genetic testing?

(ii) If the answer to the first issue is yes, should such an order be made in the context of this obstetrical malpractice action?

[2] The plaintiffs allege that Andrew Klinck was diagnosed with hypoxic ischemic encephalopathy (“HIE”) and meconium aspiration syndrome at birth; he has since been diagnosed with dyskinetic cerebral palsy. They allege that Andrew’s injuries were caused or contributed to by the negligence of the midwife defendants and the physician defendants during labour and delivery, including these defendants’ alleged failure to recognize signs of fetal distress and the need for an urgent delivery, and the physicians’ failure to order an emergency caesarean section. Andrew’s biological parents are the plaintiffs Sherri Lane and Gregory Koenderman. The plaintiffs Joel and Sara Klinck are Andrew’s adoptive parents. Andrew is now seven years of age.

[3] Examinations for discovery in the action are complete.

[4] The defendants Melissa Dorsay, Joanne Rack, and The Midwifery Collective of Ottawa (the “midwife defendants”) and the defendants Dr. Huard, Dr. Pascali, Dr. Boheimier, and Dr. Merchant (the “physician defendants”) seek orders permitting them to proceed with a medical examination pursuant to s. 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and Rule 33.01 of the Rules of Civil Procedure, R.R.O., Reg. 194. The proposed examination involves the collection of a blood sample from Andrew and his biological parents for the purpose of specific genetic testing.

[5] The moving parties deny the plaintiffs’ allegations of negligence. They deny that Andrew’s condition at birth and his subsequently diagnosed disabilities are a result of events during labour and delivery. The physician defendants specifically plead that Andrew’s condition was caused or a result of genetic conditions. The midwife defendants and the physician defendants contend there is compelling evidence — from Andrew’s treating physicians and from the defendants’ experts — that points to Andrew having an underlying genetic condition. They say that the evidence obtained from the genetic testing will be critical to the ultimate determination of causation and to the assessment of damages.

[6] The plaintiffs oppose the motions. They assert that the orders sought by the moving parties would deprive the plaintiffs of their right to privacy in their genetic profiles. The plaintiffs submit that with the enactment of the Genetic Non-Discrimination Act, S.C. 2017, c. 3, the federal government has “occupied the field” in genetic testing and that neither Rule 33 nor s. 105 of the Courts of Justice Act provides legal authority to compel genetic testing in the present context. The plaintiffs also take the position that the moving parties have failed to put evidence before the court of a specific genetic disorder that would account for some or all of Andrew’s brain injuries. Relying on the thin skull doctrine, the plaintiffs maintain that the defendants are responsible in law for all of Andrew’s injuries and that, therefore, genetic testing should not be ordered.

[7] Considering the fairness, necessity, and prejudice associated with the proposed examination and balancing the interests of the plaintiffs and the moving parties, I exercise my discretion under s. 105 and Rule 33.01 to order Andrew and his biological parents to submit to blood tests for the purpose of specific genetic testing.

Factual Context

Andrew and the Plaintiffs’ Claim

[8] Andrew was born on May 27, 2014 at The Ottawa Hospital, Civic Campus. In April 2015, Andrew was placed in the home of Joel and Sara Klinck. The following year, Andrew was adopted by the Klincks.

[9] Andrew is severely disabled. He has been diagnosed with serious medical conditions including: severe global developmental delay, dyskinetic cerebral palsy, cortical visual impairment, feeding disability, and significant intractable gastrointestinal challenges. In the statement of claim, the plaintiffs allege that Andrew was diagnosed with HIE and meconium aspiration syndrome at birth. The plaintiffs seek damages in excess of $12,000,000, including future care costs for Andrew of $10,000,000 and $1,500,000 for loss of prospective income.

The First MRI

[10] During the course of his medical care outside of this action, Andrew has undergone two MRI investigations of his brain. The first MRI was on June 3, 2014, when Andrew was seven days old. The plaintiffs’ expert, Dr. Derek Armstrong, states that “the hypoxic ischemic brain injury demonstrated at seven days of age indicated it was caused by the hypoxic ischemic event recorded in the clinical records, due to moderate hypotension proceeding or worsening to profound hypotension.” Dr. Décarie, the physician defendants’ expert, is of a different opinion. He states: “the brain MRI at age 6 days shows no signs to suggest previous injuries.”

The Second MRI

[11] A second MRI of Andrew’s brain was conducted on June 25, 2020. These MRI images and the associated report were provided by the plaintiffs to the defendants in September 2020. The reporting radiologist, Dr. Stein, notes “significant lack of myelin throughout the brain parenchyma, including posterior fossa structures.” The report states: “[f]indings are suggestive of a hypomyelinating syndrome given the lack of myelin observed. Neurology and genetics consultation is recommended.”

[12] In his January 15, 2021 report filed on these motions, Dr. Décarie explains that:

Hypomyelinating disorders form a recently described group of diseases associated with a growing number of genetic disorders. Myelin is a vital substance in the nervous system and functions as an isolating sheath around the nervous fibers that helps the conduction of the electric impulse along the fibers. The formation of myelin is not complete at birth and undergoes rapid progression in the first year of life. Some diseases attack the myelin sheaths after they are formed, the best-known example of this type of disease is Multiple Sclerosis. In hypomyelinating disorders on the other hand, there is severe deficiency in the formation of myelin with devastating effects on the neurodevelopment of the patient affected.

[13] The findings and recommendations in the June 2020 report were considered by Andrew’s treating physicians at McMaster Children’s Hospital on July 2, 2020. In his record from Andrew’s appointment with him that day, Dr. Ronit Mesterman, paediatric neurologist, states in part:

Repeat MRI of brain which was completed last week, showed severe hypomyelination raising the suspicion that Andrew might have an underlying neuro-metabolic-genetic etiology...

I reviewed with both parents today the MRI finding and shared that there is a list of several conditions that could explain the MRI findings. At the same time, most syndromes going along with hypomyelination often see the child reach some milestones and then regress, which is actually not the case with Andrew.

I have reviewed the case with Dr. Kozenko our specialist in metabolic disorders and together decided on next steps of testing. Conditions that need to be considered in the wider Differential diagnosis included [sic] Pelizeus Merzbacher Disease, GM1, GM2, Trichothiodystrophy, POL III related leukodystrophy, Hypomyelinating leukodystrophy, Allan-Herndon-Dudley syndrome.

Most of the above disorder [sic] will be identified on gene sequencing. In planning with Dr. Kozenko we would suggest the following [including chromosomal microarray analysis and PLP 1 gene sequencing]. Based on the results we will decide if to pursue initially [sic] a hypomyelination panel or directly order a WES [whole exome sequencing].

[14] On Andrew’s behalf, Mr. Klinck elected not to pursue the genetic testing recommended by Andrew’s treating physicians.

[15] To provide the evidentiary basis for the moving parties’ request that Andrew and his biological parents undergo genetic testing, the midwife defendants have included in their motion record the reports of Dr. Shroff, paediatric neuroradiologist, and Dr. Levin, paediatric neurologist. In their reports, Drs. Shroff and Levin express their opinion that Andrew has an underlying genetic disorder, most likely a hypomyelinating syndrome, and that a precise diagnosis can be made with genetic testing. Shortly after the service of these reports, counsel for the plaintiffs confirmed that they would not consent to provide blood samples from Andrew and his biological parents for the purposes of genetic testing.

The Expert Evidence on These Motions

[16] In support of their motion, the midwife defendants have served affidavits and reports from Dr. Bernard, paediatric neurologist, and Dr. Polychronakos, paediatric endocrinologist. Dr. Bernard was asked to consider and provide an opinion on whether Andrew suffers from a genetic disorder and whether genetic testing is necessary. In Dr. Bernard’s opinion, Andrew’s clinical and radiological characteristics are:

diagnostic for a hypomyelinating leukodystrophy. The most likely diagnosis is Pelizaeus-Merzbacher disease, followed by Pelizaeus-Merzbacher-like disease. Other diagnostics to consider, but that are less likely, according to the MRI pattern, include TUBB4A-related leukodystrophy or H-ABC (Hypomyelination with Atrophy or the Basal ganglia and Cerebellum), and POLR3-related or 4H (Hypomyelination, Hypodontia and Hypogonadotropic Hypogonadism) leukodystrophy.

[17] Dr. Bernard recommends further genetic testing: either leukodystrophy gene panel with “CNV detection” or trio exome sequencing with “CNV detection (i.e. patient and biological parents).” Dr. Bernard notes that in order to perform these genetic investigations, Andrew and his biological parents would have to have a blood sample taken.

[18] Dr. Polychronakos is a paediatric endocrinologist and a professor at McGill University in the Department of Pediatrics, with cross-appointments in experimental medicine and human genetics. He was asked to provide an expert opinion on the need for genetic testing as part of the effort to determine the cause of Andrew’s neurocognitive impairment, to advise on the manner and methodology for proceeding with such testing, and to advise of the interpretation of the findings. In his report, Dr. Polychronakos states that “[t]here is no doubt that Andrew was exposed to severe hypoxia during the first few days of life.” He notes the “serious disagreement” on the June 2014 imaging findings and explains that for this reason, in evaluating a possible genetic cause for the outcome, he relied mostly on the June 2020 MRI. Dr. Polychronakos opines that developments in neuroscience and genetics are “increasingly challenging the conventional explanation that neurocognitive defects are typically due to perinatal insult such as hypoxia, hypoglycemia, trauma, or infection.” He recommends Trio WES (whole exome sequencing of affected child and both biological parents) as the diagnostic test to search for an explanation for Andrew’s severe myelination deficiency.

[19] The 2018 Canadian Pediatric Society Position Statement on the evaluation of a child with global developmental delay and intellectual disability proposes genetic testing as a standard of care, and notes that “Trio WES” is endorsed by the Canadian College of Medical Geneticists for evaluating moderate to severe cognitive defect.

[20] The physician defendants rely on expert opinions from Dr. Décarie and Dr. Andrews. Dr. Décarie is a radiologist with special training in paediatric radiology and paediatric neuroradiology. The main part of his clinical work is in paediatric neuroradiology. Dr. Décarie was asked to review Andrew’s relevant medical records and to provide an opinion regarding the neuroimaging findings and etiology. In Dr. Décarie’s opinion, Andrew’s neuroimaging demonstrates the presence of a severe form of hypomyelinating disorder; the imaging does not, in his opinion, show any signs of hypoxic ischemic injury. He opines that genetic testing will be required to confirm the specific categorization of hypomyelinating disorder.

[21] Dr. Andrews is a licensed paediatrician and medical geneticist. He was asked to provide an expert opinion regarding the cause of Andrew’s clinical picture. Dr. Andrews opines that Andrew’s clinical and neuroimaging features suggest an underlying genetic cause to his condition, not consistent with a hypoxic ischemic brain injury at birth. In Dr. Andrews’ opinion, Andrew’s history of labour, delivery, and neonatal course are not explained by his neonatal brain MRI findings. Andrew’s clinical course, including the June 2020 MRI, suggests an underlying genetic disease. In order to identify any underlying metabolic and genetic causes in Andrew’s case, Dr. Andrews recommends a chromosomal microarray and WES be arranged, with the testing performed on a blood sample from Andrew and from both of his biological parents.

[22] The plaintiffs did not cross-examine any of the moving parties’ experts on their opinions, conclusions, and recommendations.

[23] The plaintiffs’ motion record includes three reports (September 2020, November 2020, and February 2021) and an affidavit from Dr. Armstrong. Dr. Armstrong is a paediatric neuroradiologist. He was an associate professor in diagnostic and interventional paediatric neuroradiology at the University of Toronto until his retirement, with 31 years in paediatric neuroradiology, including brain injury, non-accidental injury, and neurovascular disease. In his September 2020 report, Dr. Armstrong states that “[w]hile at six years of age a pattern of hypomyelination was demonstrated, the pattern and distribution of the hypoxic ischemic brain injury demonstrated at seven days of age indicated it was caused by the hypoxic ischemic event recorded in the clinical records.” In his opinion, Andrew’s long-term neurological condition does not support or express the “appropriate clinical outcome” for hypomyelination.

[24] In his November 2020 report, Dr. Armstrong notes his earlier opinion that the hypomyelination observed when Andrew was six years of age appeared “out of proportion” to impairment of myelination “likely caused by the hypoxic ischemic brain injury” and that there appeared to be two disease processes. He opines that “[d]ue to the burying of the hypoxic ischemic brain injury within the hypomyelination, it would be impossible to apportion the effects of the damage to the long-term outcome beyond speculation.”

[25] In his February 2021 report, Dr. Armstrong comments on the reports of Drs. Andrews, Bernard, and Décarie. Dr. Armstrong concludes this report by noting that brain imaging at seven days of age supported acute brain injury due to hypoxia ischemia, with subsequent brain imaging demonstrating hypomyelination. In closing, he states: “[t]o date no further genetic or metabolic investigation apparently has been clinically considered necessary.”

[26] Dr. Armstrong was cross-examined. On his cross-examination, Dr. Armstrong agreed that hypomyelination is the “dominant” and “obvious” finding on Andrew’s June 2020 MRI. He also agreed that the lack of myelin is “quite diffuse and widespread.”

[27] Regarding the cause of Andrew’s hypomyelination, Dr. Armstrong responded:

95. Q. That we do not know the exact cause of Andrew’s hypomyelination based on the available neuroimaging?

A. No, we do not – I think – I though[t] you asked me the possible causes of hypomyelination.

96. Q. No, I did not?

A. Okay.

97. Q. All right, and you’ll agree with me, Doctor, that an MRI cannot tell us what the exact cause of the hypomyelination is. Correct?

A. It tells us it’s most likely a hypomyelination syndrome.

98. Q. Thank you?

A. And then you should go search in the genetics for the child, but that is as much as the MRI scan will tell you.

99. Q. Perfect, and that’s in fact what the reporting radiologist did recommend, the further genetic consult and investigations, as well as Andrew’s treating paediatric neurologist, Dr. Mesterman. Correct?

A. I see what Dr. Stein has said. Dr. Mesterman has also considered doing genetics investigation.

[28] Dr. Armstrong agreed that one of the possible causes of hypomyelination is a genetic disorder and that genetic testing may be helpful to identify the cause of Andrew’s hypomyelination: “Yes, it may or may not prove the cause.”

Preliminary Issues

[29] I begin by addressing two preliminary issues. The first relates to statements made by Ms. Gemma Healy-Murphy as to her beliefs in paragraph 22 of her April 9, 2021 affidavit. Ms. Healy-Murphy is a lawyer at Rogers Partners LLP, lawyers for the midwife defendants in this action. In paragraph 22, Ms. Healy-Murphy stated her belief that the plaintiffs would not suffer any prejudice if testing were ordered because the collection of samples is “minimally invasive” and would not constitute an “undue burden” on the affected plaintiffs. Counsel for the midwife defendants withdrew these statements at the outset of the hearing. It was proper for her to do so: Rochon v. Commonwell Mutual Insurance Group, 2021 ONSC 2880, at paras. 6-11; Rule 5.2 of the Law Society of Ontario’s Rules of Professional Conduct. As a result, and as I advised the parties at the hearing, I have not taken the statements at paragraph 22 of Ms. Healy-Murphy’s affidavit into account in deciding these motions.

[30] Second, the plaintiffs’ motion materials include a number of physicians’ reports attached as exhibits to a law clerk’s affidavit. To the extent the plaintiffs purport to rely on these reports as expert reports on this motion, they are not properly before the court. Attaching these reports as exhibits to a law clerk’s affidavit does not amount to proof of the contents of the reports: Tomson v. Jackson, 2021 ONSC 3422, at para. 55, citing Peirson v. Bent (1993), 1993 8559 (ON SC), 13 O.R. (3d) 429 (S.C. Gen. Div.). Plaintiffs’ counsel submitted that had the moving parties advised him of their concerns, he would have made these physicians available for cross-examination. The moving parties were under no obligation in this regard. The articles from medical journals in the plaintiffs’ materials are also not properly before the court on these motions.

Statutory Provisions and Applicable Legal Principles

[31] Section 105 of the Courts of Justice Act provides in part:

(2) Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners.

(3) Where the question of a party’s physical or mental condition is first raised by another party, an order under this section shall not be made unless the allegation is relevant to a material issue in the proceeding and there is good reason to believe that there is substance to the allegation.

(4) The court may, on motion, order further physical or mental examinations.

[32] Rule 33 of the Rules of Civil Procedure sets out the procedural framework for orders under s. 105. Rule 33.01 requires that the motion be brought on notice to every other party in the proceeding. An order under s. 105 may specify the time, place, and purpose of the examination, and shall name the health practitioner(s) by whom the examination is to be conducted: r. 33.02(1). The court may order a second examination or further examinations “on such terms respecting costs and other matters as are just”: r. 33.02(2).

[33] In applying the Rules of Civil Procedure, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues and to the amount involved in the proceeding: r. 1.04(1.1). There is no question that the issues that arise in this case are at the most complex end of the spectrum for medical malpractice cases.

[34] Where a plaintiff’s physical or mental condition is relevant to a material issue in the proceeding, a defendant has a prima facie right to a first medical examination under s. 105 and Rule 33 without the need for evidence or justification: Moore v. Bertuzzi, 2012 ONSC 5399, at para. 35; Godin v. Goncalves, 2014 ONSC 7297, at para. 30.

[35] Where the issue before the court is whether to order a further medical examination, the accepted test involves the consideration of the fairness, necessity, and prejudice associated with the examination: Godin, at para. 29, citing Ramrup v. Lazzara, 2014 ONSC 130, at para. 47 and Jeffrey v. Baker, 2010 ONSC 5620, at para. 12.

[36] Although this is a first request for a medical examination, the moving parties have followed the analytical framework applicable to requests for further medical examinations. They submit that based on considerations of fairness, necessity, and prejudice, their request for genetic testing should be granted.

[37] The court retains the discretion whether to order any medical examination. Given the specific nature of the testing requested by the moving parties and the circumstances of this case, in exercising my discretion under s. 105 and Rule 33, I have considered the factors of fairness, necessity, and prejudice.

[38] It is not in dispute that Andrew’s physical health is material to the issues of causation and damages in the action. The plaintiffs, however, object to the moving parties’ request for a medical examination that involves the collection of a blood sample from Andrew and from his biological parents for the purpose of specific genetic testing. The plaintiffs’ position is twofold. First, the plaintiffs submit that the medical examination contemplated by s. 105 and Rule 33 does not include genetic testing. I address these arguments in my discussion of the scope of s. 105 and Rule 33.

[39] Second, the plaintiffs take the position that the genetic evidence sought by the moving parties is not cogent to the issue of causation. In brief, the plaintiffs argue that the moving parties caused, materially contributed to, or increased the risk of harm resulting in injury to Andrew’s brain. Relying on the thin skull doctrine, the plaintiffs assert that if a genetic syndrome that surfaced some years later played a role in Andrew’s brain injuries, the moving parties will, nevertheless, be responsible for the whole of the injuries to Andrew’s brain because they injured a brain already vulnerable and susceptible to injury. I address these arguments and the plaintiffs’ privacy concerns under the heading “The Plaintiffs’ Argument on Causation” and in my discussion of the factors of fairness, necessity, and prejudice.

Jurisprudence

[40] Counsel are not aware of any decision in Ontario where the court has considered the issue of genetic testing as part of a medical examination in a medical malpractice action. However, the issue of genetic testing in the context of civil actions has been considered in British Columbia, Alberta, and Prince Edward Island.

British Columbia: [Benoit v. Banfield, 2012 BCSC 2237](https://www.canlii.org/en/bc/bcsc/doc/2012/2012bcsc2237/2012bcsc2237.html)

[41] In Benoit, the plaintiff, by her litigation guardian, claimed damages for brain injuries suffered in a fall from an exterior staircase on property owned by one of the defendants. Another defendant, the City of Surrey, applied for an order that the plaintiff attend for a genetic assessment at the medical genetics department of the BC Children’s Hospital.

[42] The application judge articulated three bases for the dismissal of the application. First, the issue of whether the plaintiff suffered from a pre-existing congenital condition due to a genetic abnormality was “not adequately raised on any of the pleadings in this case so as to warrant an order that she submit to genetic testing”: Benoit, at para. 59.

[43] Second, the defendant failed to identify the qualified medical practitioner to conduct the testing: “[t]he applicant is proposing that an unnamed clinician with unknown expertise will provide a list of unknown diagnostic considerations and the testing recommendations for a test be conducted and interpreted by unknown consultants”: Benoit, at para. 60. The application judge observed that the plaintiff is entitled to know the identity of the person who will conduct the testing and have an opportunity to consider their qualifications before being “compelled to submit to tests which have the potential to result in a significant invasion of privacy”: Benoit, at para. 61. There was also the potential that some of the testing might be performed at laboratories outside the identified hospital, including in the United States, “underlin[ing] the potential for invasion of privacy”: Benoit, at para. 62.

[44] Third, with follow-up studies, including the testing of relatives of the plaintiff, the production of expert reports would extend well beyond the date previously set for the delivery of such reports: Benoit, at para. 63.

Alberta: [Adacsi v. Amin, 2013 ABCA 315](https://www.canlii.org/en/ab/abca/doc/2013/2013abca315/2013abca315.html)

[45] In Adacsi, the Alberta Court of Appeal dismissed an appeal from the order of the chambers judge requiring the appellant/plaintiff to undergo a blood test to determine if she carried the Huntington’s disease mutant gene. In her action for negligence, the appellant claimed damages against the respondent landlords for debilitating injuries she suffered as a result of a house fire. The appellant was in her late thirties, with a significant family history of Huntington’s disease. There was evidence from medical professionals that some of the appellant’s symptoms could be related to Huntington’s disease. The chambers judge found that the proposed test was reliable and useful, and, although a blood test was intrusive, the test presented no real health risks.

[46] The Alberta Court of Appeal was satisfied that the chambers judge correctly interpreted r. 5.44(2) of the Alberta Rules of Court. Rule 5.44(2) specifically provides that “...if the Court so orders, the examining health care professional may (a) take or obtain samples from the person being examined, and make an analysis of the samples, and (b) perform any test recognized by medical science.” On appeal, the appellant argued that r. 5.44(2) was not broad enough to include blood samples, did not contemplate a laboratory technician taking samples, did not explicitly state that a court may require a person to attend for a test, and, by its phrasing, required the samples to be taken contemporaneously. The court rejected these arguments as either inconsistent with the context, purpose, or a logical reading of the rule.

[47] The Alberta Court of Appeal also rejected the appellant’s argument that the chambers judge improperly exercised her discretion in ordering the blood samples. In doing so, the court observed that while the appellant stated that she believed taking the test would cause her severe panic, stress, and anxiety, her affidavit did not state that she was fearful of the knowledge that could result from the test or discuss any possible psychological impact of such knowledge: Adacsi, at para. 13. The court concluded at para. 14:

The courts must balance the interests of all the parties to the litigation. The possibility of Huntington’s is not frivolous in this case, given the appellant’s family history and the fact that several doctors have noted that she has symptoms consistent with that disease. If the blood test shows that to be a live possibility, it may indeed be relevant to assessing damages. Since the appellant has chosen to sue for damages, she cannot deprive the respondents from acquiring evidence that may assist in their defence.

Prince Edward Island: [Preece v. Nicholson et al., 2019 PESC 34](https://www.canlii.org/en/pe/pesctd/doc/2019/2019pesc34/2019pesc34.html)

[48] Like the case at bar, Preece was a medical malpractice action. The plaintiff commenced an action against the defendant doctors, on her own behalf and as litigation guardian for her son. The defendants engaged a medical doctor with special competence in child neurology to examine the child and to provide his opinion. The specialist was unable to reach a final conclusion without the assistance of genetic and metabolic testing. The plaintiffs refused to consent to the additional testing and the defendants brought a motion seeking a sample of the child’s blood and urine sufficient for genetic testing. The statutory provisions relied upon by the defendants in Preece are substantially the same as s. 105 of the Courts of Justice Act and Rule 33.

[49] The defendant doctors succeeded on their motion for a subsequent defence medical examination. Relying on para. 14 of Adacsi, the court confirmed that the defendants’ burden of proof was “not one of probability but reasonabl[e] possibility”: Preece, at paras. 20-21. A reasonable possibility is the possibility of a genetic cause that is not frivolous: Preece, at para. 22.

[50] On the issue of fairness, the court concluded that it would be unfair a) to the defendants in testing the plaintiffs’ “serious claim” to do so without the additional testing requested, and b) to the trial court to attempt to resolve the dispute without the benefit of this evidence: Preece, at para. 27. The court concluded that the element of necessity had been met as the assessment was “likely to produce information relevant to the plaintiffs’ claim”: Preece, at para. 30. Finally, on the element of prejudice, the court noted that there was no evidence that the collection of blood and urine samples from the infant plaintiff would be excessively onerous on him: “[t]hat tips the scales in favour of allowing the requested testing because to do otherwise would prejudice the defendants in the preparation of their case but would not prejudice the plaintiffs”: Preece, at para. 32.

Analysis

The Scope of Section 105 and Rule 33

[51] I consider first the plaintiffs’ threshold argument that the medical examinations contemplated by s. 105 of the Courts of Justice Act and Rule 33 do not include genetic testing because the federal government has “occupied the field” in enacting the Genetic Non-Discrimination Act. The plaintiffs submit that it would be an “inappropriate application” of the rule to “inject” genetic testing into Rule 33.

[52] I disagree.

[53] In 2017, Parliament enacted the Genetic Non-Discrimination Act (“GNDA”). Section 2 of the GNDA defines a genetic test as “a test that analyzes DNA, RNA or chromosomes for purposes such as the prediction of disease or vertical transmission risks, or monitoring, diagnosis or prognosis.”

[54] Sections 3, 4, and 5 of the GNDA establish prohibitions relating to genetic tests. Individuals and corporations cannot force individuals to take genetic tests or disclose genetic test results as a condition of obtaining access to goods, services, and contracts, cannot refuse an individual access to goods, services, and contracts because they have refused to take a genetic test or refused to disclose the results of a genetic test, and cannot use individuals’ genetic test results without their written consent in the areas of contracting and the provision of goods and services.

[55] Section 6 of the GNDA provides that these prohibitions do not apply to a physician, pharmacist, or other health care practitioner, or to a person conducting research in certain respects. Section 7 provides that doing anything prohibited by ss. 3, 4, or 5 is an offence punishable on summary conviction or by indictment.

[56] On a plain reading of the legislation, the prohibitions established by the GNDA are in the areas of contracting and the provision of goods and services. On its face, the GNDA does not provide the federal government with exclusive jurisdiction in relation to genetic testing.

[57] In Reference re Genetic Non-Discrimination Act, 2020 SCC 17, 447 D.L.R. (4th) 359, a majority of the Supreme Court of Canada held that ss. 1 to 7 of the GNDA represent a valid exercise of Parliament’s power over criminal law set out at s. 91(27) of the Constitution Act, 1867. At para. 102, Karakatsanis J. (Abella and Martin JJ. concurring) held that in pith and substance, Parliament’s action was a response to the harm that vulnerability to and fear of genetic discrimination posed to public health:

Giving individuals control over access to their genetic test results by prohibiting forced genetic testing and disclosure of test results and the non-consensual collection, use or disclosure of genetic test results in the areas of contracting and the provision of goods and services targets the harmful fear of genetic discrimination that poses a threat to health. The Act was intended to target that fear.

[58] Moldaver J. (Côté J. concurring) was of the view that the pith and substance of ss. 1 to 7 of the GNDA is to protect health by prohibiting conduct that undermines individuals’ control over the intimate information revealed by genetic testing: GNDA Reference, at para. 114. At para. 150, Moldaver J. wrote:

Sections 1 to 7 of the Act, which prohibit conduct that undermines individuals’ control over the information revealed by genetic testing in a wide variety of contexts that govern how people interact with and in society, accordingly represent a valid exercise of Parliament’s power to enact laws in relation to the criminal law.

[59] These passages underscore that the prohibitions set out in the GNDA are in specific contexts: contracting and the provision of goods and services. They do not apply to, and, in my view, do not inform, the scope of medical examinations that may be ordered in a private civil action.

[60] As the Divisional Court stated in LaForme v. Paul Revere Life Insurance Co. (2006), 2006 81803 (ON SCDC), 84 O.R. (3d) 634, at para. 14, in s. 105 and Rule 33,

[t]he Courts of Justice Act and the Rules of Civil Procedure have created a statutory regime to promote fairness in the litigation process and to uphold the right of the defendant to conduct its defence as advised and to assist the court at an eventual trial by furnishing expert evidence that is subject to the adversarial process. The purpose of s. 105 and Rule 33 is to "level the playing field".

[61] Unlike the operative rule at issue in Adacsi, Rule 33 does not specifically provide that the examining health care professional may take or obtain samples from the person, make an analysis of the samples, and perform any test recognized by medical science. However, Rule 33.06(1) specifically contemplates “tests”:

After conducting an examination, the examining health practitioner shall prepare a written report setting out his or her observations, the results of any tests made and his or her conclusions, diagnosis and prognosis and shall forthwith provide the report to the party who obtained the order.

[62] Under Rule 33.02, the court has the authority to set the terms for an examination. Rule 33.03 allows the court to decide any matter in dispute in connection with the proposed examination. The terms for an examination may include the nature of the testing ordered. For example, in Safi v. Steele, 2009 15887 (Ont. S.C.), Master Beaudoin, as he then was, ordered a psychiatric assessment of the plaintiff not longer than three hours in length, with no psychometric testing.

[63] In my view, having regard to the broad wording of s. 105 and Rule 33, the underlying purpose of these provisions, and the mandate in Rule 1.04(1.1) that the court is to make orders that are proportionate to the importance and complexity of the issues in the proceeding, the court may, in the exercise of its discretion in an appropriate case, make an order for genetic testing.

The Plaintiffs’ Argument on Causation

[64] The plaintiffs’ argument on causation is summarized at paragraphs 156 to 159 of their factum (part 2):

156. [The moving parties] have failed to overcome the legal and jurisdictional hurdles upon them. The [moving parties] have not led any evidence, supported by studies or trials anywhere in the world, that by genetic testing it would show a specific genetic disorder that would be responsible for all of Andrew’s brain injuries.

157. Even if a genetic disorder, based upon genetic testing, would be responsible for only a portion of his injuries, there was no evidence adduced that such portion could be separated from the injuries caused by the tortfeasors at birth. They cannot obtain a discount to the damages caused if they cannot assess or parse out each of the injuries.

158. By the law of causation, they are responsible for all of his injuries.

159. It is therefore unjustifiable in a precedent setting case that a Defendant could deprive the Plaintiffs of their genetic privacy based upon such a lack of evidence on critical questions that needed to be answered for the Court.

[65] Put another way, the plaintiffs say that the moving parties have not led evidence regarding the issue of causation so as to make genetic testing relevant.

[66] A similar argument was advanced by the plaintiffs in Preece. There, the plaintiffs relied on Athey v. Leonati, 1996 183 (SCC), [1996] 3 S.C.R. 458, where the Supreme Court of Canada confirmed at para. 17 that it is not now necessary, nor has it ever been, for a plaintiff to establish that the defendant’s negligence was the sole cause of the injury; as long as a defendant is part of the cause of the injury, the defendant is liable, even though the defendant’s act alone was not enough to create the injury.

[67] In Preece, the plaintiffs maintained that the defendants’ admission of the hypoxic ischemic injury and hypoglycemia ended the matter of further testing and that nothing would be gained by further testing. The motion judge rejected this argument stating that if the child had a pre-existing condition that “independently” would create some measurable risk of harm that might result, then any amount the defendants would be liable to pay because of their negligence might be reduced based on the principle that a defendant is only obligated to restore the plaintiff to the position they were in prior to the wrongdoing: Preece, at para. 19.

[68] In Mizzi v. Hopkins (2003), 2003 52145 (ON CA), 64 O.R. (3d) 365, at para. 28, the Court of Appeal for Ontario reviewed the causation principles identified by the Supreme Court of Canada in Athey. These principles include a) a tortfeasor is liable for the plaintiff’s injuries even if the injuries are unexpectedly severe owing to a pre-existing condition (the thin skull rule) and b) a defendant will not be liable for any debilitating effects of a plaintiff’s pre-existing condition if the plaintiff would have experienced those effects anyway (the crumbling skull rule).

[69] As stated by the Court in Athey, at para. 32,

…[T]he plaintiff must be placed in the position he or she would have been in absent the defendant’s negligence (the “original position”). However, the plaintiff is not to be placed in a position better than his or her original one. It is therefore necessary not only to determine the plaintiff’s position after the tort but also to assess what the “original position” would have been. It is the difference between these positions, the “original position” and the “injured position”, which is the plaintiff’s loss.

[70] In this case, the plaintiffs submit that the moving parties have provided no evidence that any condition or disease caused by hypomyelination will produce the same injuries from which Andrew suffers: an inability to walk, talk, use his fine motor skills, loss of bladder control, spasticity in his limbs, quadriplegia, intellectual deficiencies, and the need for assisted feeding using a G-tube. Plaintiffs’ counsel invites me to draw an adverse inference that no such disease exists. In counsel’s words, “it is not a mystery what the cause [of Andrew’s injuries] is.”

[71] With respect, the cause of Andrew’s neurocognitive impairments is very much in issue and plaintiffs’ counsel sets the bar too high on this motion. I adopt the test enunciated by the courts in Adacsi and Preece: have the moving parties provided cogent medical evidence that a genetic cause for Andrew’s injuries is a reasonable possibility, in the sense that it is not frivolous.

[72] On the record before me, the moving parties have more than met this bar. In Dr. Andrews’ opinion, Andrew’s clinical and neuroimaging features suggest an underlying genetic cause not consistent with a hypoxic ischemic brain injury. Dr. Décarie has expressed the same opinion. In Dr. Bernard’s opinion, Andrew’s clinical and radiological characteristics are diagnostic for a hypomyelinating leukodystrophy. She provides the most likely diagnoses and recommends further genetic testing. Dr. Polychronakos explains that the conventional explanation that neurocognitive defects are typically due to perinatal insult such as hypoxia is being challenged by developments in neuroscience and genetics. He recommends whole exome sequencing.

[73] While plaintiffs’ counsel submits that the moving parties’ experts engaged in “cherry picking” of clinical data, I note that the qualifications, opinions, and recommendations of the moving parties’ experts were not challenged as no cross-examinations were conducted.

[74] Andrew’s treating paediatric neurologist, Dr. Mesterman, also raised the “suspicion” that Andrew might have an underlying neuro-metabolic-genetic etiology, and noted the need to consider various conditions, including hypomyelinating leukodystrophy, also identified by Dr. Bernard. Dr. Mesterman recommended genetic testing. In critiquing the moving parties’ experts, the plaintiffs highlight a point made by Dr. Mesterman in his report: most syndromes that “go along with” hypomyelination often see the child reach some milestones and then regress, “which is not the case with Andrew.” Although this observation may be relevant to the issue of causation at an eventual trial, my task on these motions is limited to ensuring a level playing field and assisting the trial court by furnishing expert evidence that is subject to the adversarial process.

[75] Finally, I note that on his cross-examination, Dr. Armstrong agreed that the cause of Andrew’s hypomyelination cannot be ascertained based on the available neuroimaging but the evidence on the MRI means “you should go search in the genetics for the child.”

[76] On this evidence, I am satisfied that the possibility of a genetic cause for Andrew’s injuries is not frivolous.

[77] I turn next to consider the factors of fairness, necessity, and prejudice in the context of the evidentiary record.

Fairness

[78] As I have already stated, the policy behind defence medical examinations is to allow the defendant to meet the plaintiff’s case and to respond to allegations in the statement of claim and to assist the trial court by providing expert evidence that is subject to the adversarial process: Godin, at paras. 24-25.

[79] The importance of ensuring trial fairness in the context of a request for a further examination was highlighted by D.M. Brown J., as he then was, in Bonello v. Taylor, 2010 ONSC 5723, at para. 16:

That said, I would venture that trial fairness should operate as the guiding principle in this area, so if the plaintiff has decided that expert evidence from one specialty based on an examination of the plaintiff is relevant to the adjudication of her claim at trial, courts should be loathe to deny the defence a fair opportunity to respond with expert evidence from the same specialty based on an assessment of the plaintiff. Ordering further examinations may be just where they are necessary to enable the defendant fairly to investigate and call reasonable responding evidence at trial.

[80] An analogy can be drawn to the facts in this case. Dr. Stein (who prepared the report on the June 2020 MRI) and Dr. Mesterman both recommended genetics consultation/testing. On his cross-examination, Dr. Armstrong acknowledged these recommendations. Mr. Klinck elected not to pursue the genetic testing recommended by Andrew’s treating physicians. Had the testing been pursued, the results would have been discoverable in the action. The moving parties’ request that Andrew and his biological parents provide blood samples for the purpose of genetic testing was refused, notwithstanding the delivery of the reports of Drs. Shroff and Levin in which both concluded that Andrew has an underlying genetic disorder. The moving parties have provided expert evidence on this motion in support of their request.

[81] In considering the factor of fairness, the court in Preece noted the seriousness of the plaintiff’s injuries and how substantial his claim would be if proven: Preece, at paras. 24-25. There is no question that Andrew’s condition is serious and his claim, if proven, is substantial.

[82] In Siemens v. Motruck and Coote, 2000 BCSC 1593, 81 B.C.L.R. (3d) 156, the British Columbia Supreme Court considered an order for a medical examination. At para. 13, the court stated:

[b]ecause the pleadings put into issue the cause of the [plaintiff’s] alleged current disabilities, all avenues for discovery provided by the Rules should be available to ensure that the litigants obtain access to all potentially relevant evidence and information to permit the discovery process to provide answers to the questions in issue between the parties.

[83] In Benoit, the court denied the motion for genetic testing in part because the defendants had not pleaded a genetic cause of the plaintiff’s injuries: Benoit, at para. 59.

[84] Here, the physician defendants have specifically pleaded a genetic etiology to Andrew’s condition:

21. These defendants deny that the condition of Andrew Klinck at birth, and his subsequently diagnosed disabilities, are a result of events during labour and delivery. Rather, these defendants submit that Andrew’s condition was caused, or contributed to, the events that occurred during his gestation and/or a result of genetic conditions.

[85] The plaintiffs submit that this is nothing more than a “fishing expedition” on the part of the moving parties. Based on the record before me, I do not agree. The moving parties have satisfied me that the possibility of a genetic cause for Andrew’s injuries is not frivolous. In my view, the moving parties are entitled to the medical examinations they request to permit them to fairly investigate the plaintiffs’ substantial claims against them and to call reasonable responding evidence at trial. The plaintiffs have chosen to sue for damages. Having done so, it would be unfair to deprive the moving parties from acquiring evidence that may assist in their defence: Adacsi, at para. 14. It would also be unfair to the trial court to determine the plaintiffs’ claims without the benefit of this evidence.

Necessity

[86] The element of necessity requires the court to consider whether the moving party has demonstrated that the requested medical examination is warranted and legitimate, and not made with a view to delaying the trial, causing prejudice to the plaintiffs, or simply corroborating an existing medical opinion: Bonello, at para. 16. The moving party must establish that the requesting examination is likely to produce information relevant to the action; this usually requires evidence about the purpose of examination or medical testing, and how it relates to a medical issue in the action: Moore, at para. 37.

[87] In my view, this element also favours the moving parties. Andrew’s treating physicians recommended the same testing as the moving parties’ experts. The moving parties have provided cogent medical evidence that a genetic cause for Andrew’s injuries is a reasonable possibility. I find the genetic testing requested is warranted and legitimate. The moving parties have, through their expert evidence, established the purpose of the specific genetic testing requested and how it relates to the issues of causation and damages. Dr. Mesterman’s report lists conditions that need to be considered. So, too, does Dr. Bernard. The requested testing is not sought to corroborate an existing medical opinion or to delay the trial. In my view, the genetic testing is likely to produce information relevant to the plaintiffs’ claim.

Prejudice

[88] The element of prejudice requires the balancing of competing interests. I agree with the physician defendants that there is an overarching societal interest to secure the just, most expeditious, and least expensive determination of a civil claim on its merits.

[89] The right of the moving parties to fairly and properly investigate the plaintiffs’ claims and to adduce relevant evidence at trial to respond to those claims must be balanced against any prejudice raised by the plaintiffs.

[90] Courts have recognized that blood tests are minimally invasive procedures that do not constitute an unreasonable risk of harm: see for example, Preece, at paras. 31-32, citing Rimmer v. Floresco, 2006 CarswellOnt 8962 (S.C.), at para. 4 (a neurological assessment) and Francis v. Centenary Health Centre, [1998] O.J. No. 1399 (Ont. Gen. Div.) (EMG studies). Absent evidence that the tests ordered would be overly onerous on the plaintiff, the balance should be tipped towards the fullest possible explanation of the facts: Rimmer, at para. 4, citing Francis, at para. 13. On cross-examination, Dr. Armstrong confirmed that Andrew has undergone investigations more invasive than a blood test. Blood samples are one of the most common diagnostic tests used by doctors: Adacsi, at para. 8.

[91] I also note here the Canadian Pediatric Society’s endorsement of genetic testing, including Trio WES, in the evaluation of a child with global developmental delay and intellectual disability.

[92] Andrew’s biological parents — Ms. Lane and Mr. Koenderman — raise privacy concerns. No prejudice or privacy concerns are asserted on behalf of Andrew. In particular, I note that there was no evidence before me that the collection of a blood sample from Andrew would be unduly onerous.

[93] Mr. Koenderman is a member of the Canadian Forces. In his affidavit he states he is subject to the Universality of Service, which requires that members at all times perform any functions they are required to perform. Failure to meet this requirement will result in a member being released from service. Mr. Koenderman expresses his fear that his genetic profile could be accessed by others and would place his career in jeopardy. Although plaintiffs’ counsel described this as a “fear of knowing”, a more apt description would be a fear of improper access to and use of his genetic testing results.

[94] This was precisely the purpose behind the GNDA: to address Canadians’ fears that their genetic test results will be used against them in the areas of contracting and the provision of goods and services, and to prevent discrimination based on that information (see GNDA Reference per Karakatsanis J. at para. 4). As Moldaver J. stated at para. 111:

By giving people control over the decision to undergo genetic testing and over the collection, disclosure and use of the results of such testing, Parliament sought to mitigate their fears that their genetic test results could be used against them in a wide variety of contexts.

[95] I have not been provided with any statutory authority that would support the plaintiffs’ contention that Mr. Koenderman would be required to disclose the results of his genetic testing to his employer. At present, he is performing his duties as required. Submitting to a blood test for the purpose of genetic testing would have no effect on his ability to perform his duties.

[96] Ms. Lane is employed as a professional nurse practitioner. In her affidavit, Ms. Lane expresses “great fear” that the results of genetic testing could cause her extreme psychological harm. She believes that the genetic search for an illness or condition would cause anxiety, depression, and insomnia. Ms. Lane does not elaborate on or further explain her belief.

[97] Ms. Lane also expresses the fear “that the potential prospect if any condition or illness should exist will require me to make frequent visits to medical professional and undergo numerous testing and exams.” To the extent the moving parties seek further medical examinations, those will be considered under Rule 33.04. Ms. Lane echoes her husband’s fear of improper access to and use of her genetic profile when she states that “[t]he release of my genetic profile could have a disastrous effect on my employment opportunities and could also destroy my self-worth and confidence.”

[98] I agree with the moving parties that the privacy concerns of Ms. Lane and Mr. Koenderman are addressed by the GNDA and, at this stage of the proceeding, the deemed undertaking rule.

[99] In the event the matter proceeds to trial, Ms. Lane and Mr. Koenderman will be entitled to request a sealing order in relation to genetic test results.[^1] Plaintiffs’ counsel invites the court to, in effect, pre-determine this issue when he submits that sealing orders in this case would not be available based upon the Supreme Court of Canada’s decision in Sherman Estate v. Donovan, 2021 SCC 25, 458 D.L.R. (4th) 361. I decline to do so. I would, however, note that to satisfy the test for discretionary limits on court openness, an applicant must show the information in the court file is sufficiently sensitive such that it strikes at the “biographical core” of the individual and there is a serious risk that, without an exceptional order, the affected individual will suffer an affront to their dignity: Sherman Estate, at para. 35. In the GNDA Reference, Karakatsanis J. observed at para. 87: “[i]n a very real sense, an individual’s genetic makeup is their “biographical core”” and “[t]he dignity, autonomy and privacy interests in individuals’ detailed genetic information were understood by Parliament to be unique and strong.”

[100] At para. 58 of Sherman Estate, Kasirer J., writing for the court, confirmed that a plaintiff who commences a civil action waives their right to privacy, at least in part:

...Dickson J. was right to recognize that the open court principle brings necessary limits to the right to privacy. While individuals may have an expectation that information about them will not be revealed in judicial proceedings, the open court principle stands presumptively in opposition to that expectation. For example, in Lac d’Amiante du Québec Ltée v. 2858-0702 Québec Inc., 2001 SCC 51, [2001] 2 S.C.R. 743, LeBel J. held that “a party who institutes a legal proceeding waives his or her right to privacy, at least in part” (para. 42). MacIntyre and cases like it recognize — in stating that openness is the rule and covertness the exception — that the right to privacy, however defined, in some measure gives way to the open court ideal. I share the view that the open court principle presumes that this limit on the right to privacy is justified.

[101] Balancing the parties’ competing interests, having regard to the protections available to Andrew’s biological parents, and recognizing that no prejudice has been asserted on Andrew’s behalf, I find that the prejudice to the moving parties in refusing the requested genetic testing outweighs the prejudice to the plaintiffs in allowing the testing.

Conclusion

[102] For these reasons, I am satisfied there is a reasonable possibility the requested genetic testing will provide cogent evidence that will assist the parties and the court in the event this matter proceeds to trial. The elements of fairness, necessity, and prejudice weigh in favour of ordering the requested testing. The motions for an order requiring Andrew and his biological parents to attend independent medical examinations for the purpose of providing blood samples for the purpose of specific genetic testing are granted. I order that:

(i) the plaintiffs Andrew Klinck, a minor by his litigation guardian, Joel Klinck, Sherri Lane, and Gregory Koenderman, provide a sample of blood for the purposes of genetic analysis and testing, as part of independent medical examinations to be conducted by Dr. Geneviève Bernard on behalf of the midwife defendants and R. Saadet Andrews for the physician defendants;

(ii) the required blood samples are to be provided at a licensed laboratory or licensed specimen collection centre as agreed upon by the parties by October 29, 2021;

(iii) the blood samples are to be sent to GeneDX located at 207 Perry Parkway, Gaithersburg, Maryland, 20877 by the licensed laboratory or licensed specimen collection centre referred to in (ii), as directed by Dr. Bernard and Dr. Andrews, to conduct Whole Exome Sequencing (WES) TRIO and microarray analysis with testing results and reports provided directly to each of them by GeneDX;

(iv) any genetic testing results are also to be provided to experts retained by or on behalf of the plaintiffs at their request;

(v) the costs of completing the testing shall be borne by the moving parties equally; and

(vi) any further particulars with respect to the aforesaid blood samples and testing may be determined upon further order of the court or on consent of the parties.

[103] I encourage the parties to agree on costs of the motions. In the event they are unable to agree, they may upload to CaseLines their costs outlines and written submissions, including any relevant offers. The moving parties’ written submissions are limited to a maximum of three pages. The plaintiffs’ written submissions responding to both the midwife defendants and the physician defendants are limited to a maximum of five pages. The moving parties shall upload their respective submissions by October 7, 2021. The plaintiffs shall upload their submissions by October 21, 2021. If no submissions are uploaded within this timeframe, the parties will be deemed to have settled the issue of costs as amongst themselves.

Madam Justice Robyn M. Ryan Bell

Released: September 24, 2021

[^1]: The physician defendants state that they would not oppose such a request.