Anita Varjacic of Rogers Partners LLP recently successfully brought a motion to compel the plaintiffs to undergo genetic testing. The decision in Klinck v. Dorsay, 2021 ONSC 6285, is the first time in Ontario that a court has ordered genetic testing as part of a medical examination in a medical malpractice action.
This action arises from an obstetrical malpractice claim commenced by the minor plaintiff by his litigation guardian (A.K.), and both his biological and adoptive parents pursuant to the Family Law Act.
In the Statement of Claim, the plaintiffs allege that as a result of the named defendants’ negligence throughout the care and management received during the pregnancy, labour and delivery process, A.K. was diagnosed with hypoxic ischemic encephalopathy and meconium aspiration syndrome at birth and has since been diagnosed with dyskinetic cerebral palsy. The defendants maintain that A.K.’s condition was caused by or as a result of genetic conditions.
The rationale for bringing this motion stems from A.K.’s recent objective medical records. The predominant results of A.K.’s most up-to-date MRI suggesting hypomyelinating syndrome were supported by the conclusions of both plaintiff and defence experts, ultimately agreeing that it is likely that A.K. suffers from a genetic condition.
In reviewing the matter, the court looked at two issues:
1. Whether it has the authority to order a medical examination of a party which extends to an order that compels genetic testing, and
2. If the answer to the first question is yes, whether such an order should be made in the context of this specific obstetrical malpractice action.
In her decision, Justice Ryan Bell determined that when considering the issues of fairness, necessity and prejudice associated with the proposed examination, she decided to exercise her discretion under Section 105 of the Courts of Justice Act and Rule 33.01 of the Rules of Civil Procedure and ordered both A.K. and his biological parents to submit to blood tests for the purpose of the specific testing that the defendants had requested.
Justice Ryan Bell confirmed that there was no such precedent in Ontario to order genetic testing as part of a defence medical examination. However, when reviewing the principles under Section 105 and Rule 33, and the mandate in Rule 1.04 (1.1) that a court is to make orders that are proportionate to the issues, she concluded that this was a case where it was appropriate to exercise her discretion and grant the moving parties’ requested order.
Justice Ryan Bell was satisfied that the plaintiffs had not proven causation and that there was an evidentiary basis supporting the possibility of a genetic cause of A.K.’s injuries and current conditions.
The three part test of fairness, necessity and prejudice associated with the proposed examination was then considered. Justice Ryan Bell concluded that it would be unfair for the defence to have to proceed to a trial without genetic testing evidence.
Regarding the issue of necessity, Justice Ryan Bell indicated that the moving parties provided cogent medical evidence that a genetic cause was a reasonable possibility for A.K.’s diagnosis.
Finally, when assessing the issue of prejudice, Her Honour observed that the defendants have a right to fairly and properly investigate claims made against them, noting that prior courts concluded that blood tests are a minimally invasive procedure.
This is a precedent setting decision in Ontario as there have been no cases in which such an order has been made in a similar case. This decision will be relevant to other medical malpractice claims whereby the alleged injuries may have an underlying genetic cause. Additionally, Justice Ryan Bell’s reasoning may be extended to other cases where a more invasive defence medical examination is required.
 The proposed examination involved the collection of blood samples from Baby A and his biological parents for the specific purpose of genetic testing.