Court File and Parties

COURT FILE NO.: CV-16-70619 DATE: 2022/10/20 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: Justice R. Ryan Bell

COUNSEL: J. Arthur Cogan, K.C., for the Plaintiffs Anita M. Varjacic, for the Defendants Melissa Dorsay, Joanne Rack, and The Midwifery Collective of Ottawa Donald J. Dow and Darren Blimkie, for the Defendants Dr. Pierre Joseph Huard, Dr. Dante Umberto Pascali, Dr. Valerie Renelle Marie Bohemier, and Dr. Pradeep Pranlal Merchant

HEARD: September 20-21, 2023

Endorsement - Requisition Form for Genetic Testing

Overview

[1] This motion was heard almost two years to the day after I granted the initial 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 specific genetic testing: Klinck v. Dorsay, 2021 ONSC 6285.

[2] When the terms of that order could not be settled, a second motion to vary and settle the order’s terms was required: Klinck v. Dorsay, 2022 ONSC 5829. On consent, the parties agreed that plaintiffs’ counsel would be provided with the requisition form(s) completed by the defendants’ genetics experts in advance of submission, and would be given ten days to review and to object.

[3] The plaintiffs raised objections to the requisition form delivered by the defendants in February 2023 (the “first requisition form”). On this third motion, the plaintiffs seek an order rejecting the first requisition form on the basis that it is “biased, false, and incomplete.” The plaintiffs challenge the document’s form and content.

[4] The defendants vehemently deny that they have sought to influence the genetic testing results. However, in an effort to finalize the requisition form on consent, after receiving the plaintiffs’ notice of objection, the defendants sought the plaintiffs’ input as to the clinical details they wanted reflected in the requisition form. The defendants delivered revised versions of the requisition form in June (the “second requisition form”) and, most recently, on September 18 (the “third requisition form”). The defendants say that the second and third requisition forms incorporate the views of the plaintiffs’ genetics expert and have been approved by the defendants’ experts. The defendants seek an order finalizing the requisition form consistent with the format and content of the third requisition form.

[5] For the following reasons, I order that the requisition form be finalized in the format of the third requisition form – both as to form and content - with the addition of the prenatal history consisting of an existing record of no more than two pages. [^1]

Background

[6] Because this motion arises from the motion to vary and settle the terms of my original order and my order of January 12, 2023 (the “January Order”), it is important to note that in the context of that motion, the parties were able to agree on a number of issues. Those issues included: (i) the substitution of Blueprint Genetics as the laboratory to conduct the genetic testing; (ii) the variation of the initial order to provide that the requisition forms for the genetic testing be provided to plaintiffs’ counsel for review for a 10-day period; and (iii) the inclusion of a term specifying that all documents, including reports and raw data files, be provided to all counsel. The only issue argued on the second motion – whether the order should include a term requiring any reports to be compliant with rr. 33.06 and 53.03(2.1) [^2] – is not engaged on this motion.

[7] The January Order provides in part:

3. THIS COURT FURTHER ORDERS that the blood samples and testing requisition(s) are to be sent to Blueprint Genetics located at Keilaranta 16 A-B, 02150 Espoo, Finland by the licenced laboratory or licenced specimen collection centre referred to in paragraph 2, as directed by Dr. Andrews and Dr. Bernard, to conduct Whole Exome Family Plus and microarray analysis with testing results and reports provided directly to each of them by Blueprint Genetics.
4. THIS COURT FURTHER ORDERS that any and all documents, including reports, raw data (files BAM, FASTQ and VCF) and the genetic testing results received from Blueprint Genetics are to be provided to plaintiffs’ counsel.
5. THIS COURT FURTHER ORDERS that in advance of the testing the completed Blueprints Genetics requisition forms completed by Dr. Andrews and/or Dr. Bernard will be provided to plaintiffs’ counsel who will be given 10 days to review. If no objections are raised within the 10 day period, for any reason and without prejudice, the testing will proceed as ordered.
6. THIS COURT FURTHER ORDERS that following the final resolution of the requisition form(s), either by judicial determination or consent, the blood samples of Andrew Klinck, Sherri Lane and Gregory Koenderman will be collected within 30 days for the genetic testing.

[8] The first requisition form, which was completed by Dr. Bernard (the midwife defendants’ expert), with an attached Schedule A completed by Dr. Andrews (the physician defendants’ expert), was delivered to the plaintiffs on February 10, 2023. On February 17, 2023, the plaintiffs filed a notice of objection.

[9] The plaintiffs raised objections as to the form and content of the first requisition form. As set out in their notice of objection, the plaintiffs objected to the “substitution” of a requisition form that “requires that the contract for genetic tests be entered into with a foreign entity and not a Canadian corporation.” The plaintiffs say they consented to the testing to be performed by Blueprint Genetics in Finland on the basis that the requisition and general terms and conditions required Blueprint Genetics Canada Inc. to be the supplier and to be governed by the laws of Canada and Ontario.

[10] As for the content, the plaintiffs’ objections included: the defendants’ alleged failure to “customize” the requisition form to conform to a legal case as opposed to a clinical case; the use of “personal opinions and bias[ed] language”; the failure to identify the source of any clinical findings; and the omission of primary diagnoses, and MRI and radiologist’s reports rendering the form “deficient, biased and unfair.”

[11] From the outset, the defendants have denied that the clinical information contained in the first requisition form was inaccurate or biased. At the request of the plaintiffs, the defendants consented to a term in the January Order requiring that the raw data files be provided to the plaintiffs’ genetics expert, Dr. Khan. [^3] Dr. Khan confirmed he would be able to review the accuracy and basis of Blueprint Genetics’ findings if he were provided with the raw data files. [^4] Accordingly, the defendants submit that the risk of “irreparable bias” based on allegedly inaccurate information is nullified with Dr. Khan having access to the raw, underlying sequencing data.

[12] However, in an effort to move the matter forward, on March 14, 2023, the defendants invited the plaintiffs to provide written clarification from Dr. Khan, with his specific recommended changes to the first requisition form. The defendants would then provide Dr. Khan’s suggested revisions to their experts for review and approval, following which the revised requisition form would be submitted to Blueprint Genetics.

[13] The plaintiffs did not agree to the defendants’ March 14, 2023 proposal.

[14] A case conference was held on March 24, 2023. Plaintiffs’ counsel undertook to provide a comprehensive notice of motion and supporting affidavit material by June 9, 2023. The dates of September 20-22, 2023 were set aside for the hearing of this motion, together with two other anticipated motions by the plaintiffs. [^5] The other motions were later abandoned by the plaintiffs, leaving the form and content of the requisition form the only issue to be determined by the court.

[15] Some of Dr. Khan’s specific concerns with the clinical terms included in the first requisition form and his proposed changes are set out in paragraphs 15 and 16 of his affidavit sworn June 8, 2023.

[16] The defendants provided Dr. Khan’s affidavit to Drs. Bernard and Andrews for review. The defendants’ experts confirmed they were agreeable to Dr. Khan’s proposed revisions. On June 30, 2023, the defendants provided the plaintiffs the second requisition form which incorporated Dr. Khan’s suggested revisions at paragraphs 15 and 16 of his affidavit. The defendants invited the plaintiffs to provide the second requisition form to Dr. Khan for his review and approval, indicating that they were prepared to have further discussions in the event Dr. Khan had further issues regarding the form’s content. [^6]

[17] The plaintiffs did not provide any response or feedback to the defendants regarding the second requisition form.

[18] On August 31, 2023, Dr. Khan was cross-examined on his affidavit. Dr. Khan confirmed that he would be satisfied with the contents of the requisition form if a few changes – identified by him during the cross-examination – were incorporated into the second requisition form. [^7]

[19] On September 18, 2023, the defendants provided the third requisition form to the plaintiffs. The third requisition form incorporates the additional changes identified by Dr. Khan during his cross-examination. [^8] The defendants’ experts have confirmed they are agreeable to these additional changes.

[20] The plaintiffs did not respond to the third requisition form prior to the hearing of the motion.

Analysis

[21] The plaintiffs’ position is that I am faced with a binary choice: to approve or reject the first requisition form, being the only completed requisition form before the court. The plaintiffs say the first requisition form should be rejected on the basis of both form and content. The plaintiffs submit they were under no obligation to the defendants to remedy the matters objected to in the first requisition form – the process set by the court to challenge the requisition form included no such burden.

[22] The defendants say they have strived to resolve the issue of the content of the requisition form on consent. In addition to their proposals regarding the content of the requisition form, they offered to include Dr. Khan as a “third ordering physician” to ensure he has the same access to Blueprint Genetics as the defendants’ experts. The defendants also offered to direct the health professional responsible for the blood draw to draw a second sample which would be sent to Dr. Khan. Dr. Khan would then be able to perform his own genetic testing in parallel to and independent from that performed by Blueprints Genetics. This solution, too, was rejected by the plaintiffs. The defendants submit that the requisition form should be finalized by including the clinical information approved by the genetics experts for all parties, as reflected in the third requisition form, and that this motion was avoidable.

[23] Paragraph 6 of the January Order requires that the requisition form be finalized either by judicial determination or consent before it is sent to Blueprint Genetics. On this motion, because there has been no consent, I am tasked with finalizing the requisition form. In doing so, I have had regard to the entire record before me. That record includes evidence of the agreement of the experts retained by the parties as to what clinical information should be included on the requisition form.

[24] The plaintiffs submit there could only be negotiations between the parties if the defendants recognized that the first requisition form was “bad” and “withdrew” it. This is not correct. The January Order contemplated that the parties could reach a consensus on the requisition form. There was nothing preventing the parties from discussing the content of the requisition form either before or after service of the plaintiffs’ motion materials. The defendants endeavoured to do exactly that.

[25] Additionally, the plaintiffs submit that I should grant the motion, reject the first requisition form, and direct that the process begin anew based on the third requisition form in the expectation that the parties would consent. I see no reason to bifurcate the process in this fashion. I have the evidence before me to make the determination now – the parties’ respective experts are all agreed on the content. Sending the requisition form back to the parties to negotiate is unnecessary, would result in further delay, and would risk the need for a further court attendance on this matter. It would certainly not be a result consistent with securing the “just, most expeditious, and least expensive determination” of this proceeding. [^9]

[26] Having addressed the issue of the clinical information to be included on the requisition form, I turn briefly to address the plaintiffs’ remaining objections. The plaintiffs object to the requisition form because the general terms a) provide that the laws of Finland govern and b) permit subcontracting. However, the plaintiffs were aware of both terms – the terms having been included in their own record on the second motion – before they consented to the substitution of Blueprint Genetics. I also note Dr. Khan’s testimony acknowledging that Blueprint Genetics is accredited and that accreditation extends to their facility in Finland. Dr. Khan is aware that Blueprint Genetics processes samples received from Canadian patients at their facility in Finland, and he himself has ordered genetic testing through Blueprint in his own clinical practice. This objection is without merit.

[27] The plaintiffs also took issue with the fact that Dr. Andrews signed an appendix to the first requisition form. The physician defendants say this was because there was insufficient space on the form for two physicians to write their contact information and to sign. The third requisition form remedies this issue by identifying the ordering health care professional as Dr. Bernard. Dr. Andrews is identified in the box entitled “share results with a colleague.”

[28] The plaintiffs also objected to the “institution” information included on the first requisition form. This, too, has been addressed on the third requisition form with the box for the institution being marked “N/A”.

[29] I disagree with the plaintiffs’ submission that it is inaccurate to identify Andrew as the patient – it is his blood samples that will be subjected to genetic testing.

[30] As for the plaintiffs’ objection that a requisition form appropriate for a “legal case” ought to be used, there is no evidence before me that any other form exists.

Disposition

[31] Accordingly, pursuant to paragraph 6 of the January Order, the requisition form shall be finalized consistent with the form and content of the third requisition form, together with the prenatal history previously described. The blood samples are to be collected within 30 days for the genetic testing.

[32] The parties are encouraged to agree on costs of the motion. In the event they are unable to do so, they may make written submissions limited to a maximum of three pages, excluding relevant attachments. The midwife defendants and the physician defendants shall deliver their respective costs submissions by November 3, 2023. The plaintiffs shall deliver their responding submissions by November 17, 2023. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as among themselves.

Justice R. Ryan Bell Date: October 20, 2023

Footnotes

[^1]: At the hearing, the defendants advised they were not opposed to this inclusion. I anticipate that all parties will be able to cooperate and agree on the document to be included as part of the finalized requisition form. [^2]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194. [^3]: Paragraph 4 of the January Order. [^4]: I note that in the event this matter proceeds to trial, it will be open to the plaintiffs to assert that Dr. Khan’s analysis and conclusions should be preferred over that of Blueprint Genetics, on the basis that Blueprint used inaccurate or incomplete clinical information included on the requisition which biased the result. [^5]: Being the plaintiffs’ motion to set aside the January Order and the plaintiffs’ motion to set aside the order for case management of these proceedings. [^6]: Contrary to the plaintiffs’ submissions, the June 30, 2023 cover letter was properly before the court, having been marked as an exhibit on the cross-examination of Shannon Giffin. [^7]: Regarding the cross-examinations that were conducted, plaintiffs’ counsel submits that it was improper for counsel for the physician defendants’ to cross-examine Dr. Bernard. It was not improper. Dr. Bernard was examined as a witness before the hearing of a pending motion under r. 39.03(1). A witness examined under r. 39.03(1) may be cross-examined by the examining party and any other party: r. 39.03(2). [emphasis added] [^8]: When asked on his cross-examination whether he thought that any other “boxes” on the requisition form needed to be “ticked or unticked or changed, other than what we’ve discussed”, Dr. Khan replied “No.” [^9]: Rule 1.04(1) of the Rules of Civil Procedure.