Despite the “knee-jerk denials” of Motherisk experts and the Hospital for Sick Children, it wouldn’t be hard to prove in court that the lab’s drug and alcohol hair tests were broadly unreliable. However, establishing this fact is too small a hurdle on the “very difficult” road to winning compensation for Motherisk victims to justify giving the green-light to a proposed class-action lawsuit seeking compensation for thousands of families across Canada. That is the finding of a Toronto Divisional Court, which has upheld the decision of a Superior Court judge not to certify the class-action lawsuit because of the highly individualistic nature of the claims by those who say they lost their children or were wrongly convicted due to the flawed testing. “In this case, the class members were not harmed by the tests being systemically unreliable. Rather, only class members who can show that they received a false test result and that the false test result caused them to suffer an adverse outcome in legal proceedings will have compensable claims,” Justice Fred Myers wrote in a unanimous decision.But the battle is not over for the plaintiff, a Toronto mother who claims access to her son was limited for several years because of Motherisk’s faulty testing. The testing was deemed “inadequate and unreliable” for use in court from 2005 to 2015 in a government-commissioned review by retired judge Susan Lang, following a Star investigation. “The people who were harmed by the Motherisk laboratory deserved better than this,” said the plaintiff’s lawyer, Kirk Baert. “This isn’t the last word by any means. We will be seeking leave to appeal to the Ontario Court of Appeal and I am confident we will obtain it.”Sick Kids made millions from Motherisk’s hair tests, which were used for decades in a handful of criminal cases and thousands of child protection cases, primarily by child we ...
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