Motherisk’s flawed hair-strand tests tainted thousands of child protection cases across Canada, but was every parent who tested positive for drugs or alcohol potentially harmed in some way? How much is that harm is worth? And what’s the best way to determine who should pay?

These are among the complex questions that were debated in a Toronto courtroom this week in the high-stakes battle over the fate of a proposed national class-action seeking millions in damages for families affected by the litany of failings uncovered at the Hospital for Sick Children’s Motherisk Drug Testing Laboratory.

Whether the class-action will proceed is now in the hands of Superior Court Justice Paul Perell, who reserved his ruling on Thursday. His decision will play a key role in shaping what promises to be years of legal wrangling in the fallout from the problems at Motherisk. Already, some 275 plaintiffs are named in a series of individual lawsuits against Sick Kids and the major players at the lab, the court heard.

“This class-action is for the thousands of families who have received an apology but no compensation,” Rob Gain, a lawyer for the plaintiff, told the court, at the outset of the two-day hearing to determine whether the case meets the bar for class-action certification.

The proposed class includes anyone who had a positive Motherisk hair test between 2005 and 2015, the period during which a government-commissioned review by retired judge Susan Lang concluded Motherisk’s results were “inadequate and unreliable” for use in legal proceedings. (Close family members of those who tested positive are also included.)

Gain argued that a class-action is the best way to ensure access to justice to a vulnerable group of people who suffered a shared harm due to Motherisk’s faulty tests, ranging from parents who briefly came under the scrutiny of a child welfare agency to cases where children were removed permanently.

“When you’re dealing with the child protection regime . . . and there’s a test result from the lab showing drug or alcohol abuse, it is not discretionary what a Children’s Aid Society does. They must act,” he said. “That act is common to the entire class.”

However, that rationale was rejected by the defendants, who include Sick Kids, Motherisk’s founder and longtime director, Dr. Gideon Koren, and former lab manager Joey Gareri, who argued that a class-action is not appropriate because the circumstances in each case are highly individualized.

Koren’s lawyer, Darryl Cruz, told the court that his client “obviously opposes certification.”

Cruz said a negligence claim may be valid in some individual cases, but only if the plaintiff proves there was a false positive Motherisk result, and that result led to negative consequences.

“The link between what happened at Motherisk and these outcomes . . . is absolutely crucial, and not simple,” he said. “In each and every claim, one needs to consider, who are the various players? How do they relate to one another? How does the outcomes flow from the various players?”

Sick Kids lawyer Kate Crawford said the hospital is “very willing to engage in discussions about compensation with the appropriate people in appropriate circumstances,” but does not accept that there are “any common issues” that could be litigated through a class-action.

Although much of Motherisk’s hair-testing was performed at the request of child welfare agencies, some of the lab’s tests were ordered by physicians for clinical purposes, which shows the relationships between the lab and the proposed class members are “different in every case,” Crawford said.

Complicating matters further, the lab’s practices were “not consistent” and changed over time, as did the internationally accepted standards for hair-testing, which evolved as the science advanced, she said.

The proposed lead plaintiff is a mother whose access to her son was “repeatedly interfered with as a result of unreliable (Motherisk) hair tests” from 2009 to 2012, according to the plaintiff’s written arguments.

If the class-action is certified, the members of the class, however it is defined, will have to choose whether they want to pursue individual claims or join the class proceeding.

The hearing did not deal with the merits of the case. In a statement of claim, the plaintiff argues the defendants were “negligent in (their) operation and supervision” of Motherisk, and were responsible for the consequences that followed. In his statement of defence, Koren denied the claims, arguing the tests were “accurate and reliable for their intended purpose” of providing clinical information “relevant to the medical care and safety of children.” In a joint statement of defence, Sick Kids and Gareri also disputed the claims, and said that if custody decisions were based on the tests, which they denied, children’s aid societies were responsible.

Queen’s Park appointed Lang to probe Motherisk in late 2014 after a Star investigation exposed questions about the reliability of the lab’s hair tests. Sick Kids initially defended the reliability of Motherisk’s testing, but reversed course in the spring of 2015 after the hospital learned it had been misled about Motherisk’s international proficiency testing results, and closed the lab.

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Sick Kids CEO Michael Apkon issued a public apology in October 2015. Koren retired in June of 2015, and is now working in Israel.

An independent commission is now probing individual child protection cases in Ontario to determine whether Motherisk’s hair tests had a significant impact on individual decisions to remove children from their families.

Rachel Mendleson can be reached at rmendleson@thestar.ca

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