Court File and Parties
COURT FILE NO.: CV-16-70619 DATE: 2022/10/14
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: 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
BEFORE: Madam Justice Robyn M. Ryan Bell
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: October 11, 2022
ENDORSEMENT
Overview
[1] On September 24, 2021, I granted the motions of the midwife defendants and the physician defendants for an order requiring Andrew Klinck and his biological parents to attend independent medical examinations for the purpose of providing blood samples for the purpose of specific genetic testing: Klinck v. Dorsay, 2021 ONSC 6285, at para. 102.
[2] The order has not been issued and entered.
[3] As part of my order, at para. 102, I directed that:
(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.
[4] At para. 102(ii), I directed that the required blood samples were to be provided at a licensed laboratory or licensed specimen collection centre as agreed by the parties by October 29, 2021.
[5] On December 8, 2021, GeneDX advised that due to a recent policy change – one that occurred after the hearing of the motions in June 2021 – they would no longer be able to perform genetic testing for legal cases.
[6] Because it refers to GeneDX and a deadline outdated by almost a year, my September 24, 2021 order is not presently operational. The midwife defendants and the physician defendants move (i) to vary the order to substitute the name of the laboratory from GeneDX to Blueprint Genetics and to amend the date by which the plaintiffs are to provide the required blood samples; and (ii) to settle the terms of the order.
[7] The plaintiffs agree to the naming of Blueprint Genetics as the laboratory to conduct the genetic testing. In response to concerns raised by the plaintiffs, the midwife defendants and the physician defendants agree that the order be varied to provide that the requisition forms for the genetic testing completed by Dr. Bernard and/or Dr. Andrews are to be provided to plaintiffs’ counsel for review for a period of 10 days. The midwife defendants and the physician defendants also agree that the order shall provide that any and all documents, including reports and raw data files (BAM, FASTQ, and VCF), are to be provided to all counsel.
[8] The sole remaining issue is whether the order should include a term that “the report(s) of Blueprint Genetics shall be rule 33.06 and 53.03(2.1) compliant.” The plaintiffs submit that such a term is necessary as a matter of fairness.
Preliminary Issue
[9] The midwife defendants raised, as a preliminary issue, the admissibility of the affidavit of Dr. Aneal Khan, sworn September 30, 2022, following the completion of the cross-examinations conducted by the plaintiffs. It was not necessary for me to determine whether the four-part test for granting leave under r. 39.02(2) of the Rules of Civil Procedure,[^1] had been met. Counsel for the physician defendants stipulated that the medical professionals and laboratory technicians involved in the genetic testing process at Blueprint Genetics are experts in their fields as geneticists and medical doctors. As a result of this stipulation, plaintiffs’ counsel did not press his motion for leave to admit Dr. Khan’s affidavit.
[10] There was no objection to the affidavit of Shannon Giffin, sworn September 29, 2022, being admitted into evidence.
Analysis
[11] The plaintiffs submit that the order should require that the reports of Blueprint Genetics be r. 33.06 and r. 53.03(2.1) compliant. Rule 33.06 provides:
(1) 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.
(2) The party who obtained the order shall forthwith serve the report on every other party.
[12] The midwife defendants and the physician defendants sought orders permitting them to proceed with a medical examination pursuant to s. 105 of the Courts of Justice Act[^2] and r. 33.01 of the Rules of Civil Procedure. The examination involves the collection of a blood sample from Andrew and his biological parents for the purpose of specific genetic testing. The provision of a blood sample for the purpose of genetic analysis and testing are part of independent medical examinations to be conducted by Dr. Bernard on behalf of the midwife defendants and Dr. Andrews for the physician defendants: Klinck v. Dorsay, at para. 102(i).
[13] The examining health practitioners for purposes of r. 33.06 are Drs. Bernard and Andrews. Rule 33.06 does not apply to Blueprint Genetics as the laboratory conducting the tests.
[14] Rule 53.03(2.1) prescribes the contents of the report of an expert whom a party intends to call at trial. Compliance with r. 53.03 is a necessary precondition to a party calling an expert at trial. With respect, r. 53.03, including r. 53.03(2.1), has no application at this stage of the proceedings and will apply only to those experts whom a party intends to call at trial.
[15] In support of their position, the plaintiffs rely on the decision of MacLeod-Beliveau J. in Kushnir v. Macari.[^3] In Kushnir, the defendant moved for an order pursuant to s. 105 of the Courts of Justice Act and r. 33 to require the plaintiff to undergo independent medical examinations with an orthopedic surgeon and a neuropsychologist pursuant to conditions agreed to by the parties. The central issue on the motion was whether the court should impose terms requiring counsel and the examining health practitioners to confirm that the written report would be drafted solely by the examining doctor and that they would not engage in “ghost writing.” Justice MacLeod-Beliveau found that the plaintiff had met their onus to show “compelling reasons” why the court should impose a condition to ensure that expert reports are written solely by their author: Kushnir, at para. 36. Justice MacLeod-Beliveau imposed conditions, including that the expert’s report be r. 33.06 and 53.03(2.1) compliant.
[16] In my view, Kushnir does not assist the plaintiffs because Kushnir was concerned with the reports of the examining health practitioners and not, as in this case, the laboratory conducting the tests.
Disposition
[17] Therefore, my order of September 24, 2021 shall be varied: (i) to substitute the name of the laboratory from GeneDX to Blueprint Genetics; (ii) to extend the deadline for the plaintiffs to complete the required blood sample collections to November 15, 2022; (iii) to provide that the requisition forms for the genetic testing completed by Dr. Bernard and/or Dr. Andrews are to be provided to plaintiffs’ counsel for review for a period of 10 days; and (iv) to provide that any and all documents, including reports and raw data files (BAM, FASTQ, and VCF) are to be provided to all counsel.
[18] Counsel are to provide a revised form of order for my signature.
[19] I encourage the parties to agree on costs of the motions to vary and settle the order. In the event they are unable to agree, they may upload to CaseLines their costs outlines and brief written submissions (no more than two pages). The midwife defendants and the physician defendants shall upload their respective submissions by October 27, 2022. The plaintiffs shall upload their submissions by November 10, 2022. 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
Date: October 14, 2022
COURT FILE NO.: CV-16-70619 DATE: 2022/10/14
ONTARIO SUPERIOR COURT OF JUSTICE
RE: 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
BEFORE: Madam Justice Ryan Bell
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
ENDORSEMENT
Justice Ryan Bell
Released: October 14, 2022
[^1]: R.R.O. Reg. 194. [^2]: R.S.O. 1990, c. C.43. [^3]: 2017 ONSC 307.