Toronto's Hospital for Sick Children, in November, 2024.Doug Ives/The Canadian Press
More than 10 years after Toronto’s Hospital for Sick Children shut down a discredited drug-testing lab and apologized to families, the institution is still fighting dozens of lawsuits over the far-reaching consequences of its unreliable test results.
By the late nineties, the Motherisk lab, which operated within the hospital, was regularly receiving requests from child protection agencies to perform hair strand testing as a way to determine whether a parent or caregiver was abusing drugs or alcohol.
For more than a decade, the test results were trusted as proof of parental substance use. They were used as evidence in several criminal cases and thousands of child protection proceedings across Canada. The lab’s findings informed decisions to take children away from their parents.
It wasn’t until the lab’s reliability was challenged in a 2014 court case that the validity of the tests was brought into question in Canada, triggering two government-commissioned inquiries – and a flood of lawsuits.
But hundreds of claims against those allegedly responsible for the Motherisk scandal have over the past decade dwindled, as expensive and complex court battles dragged on. An effort to proceed with a class-action case failed in 2017. Many individual lawsuits were abandoned.
The hospital and the lab’s founder continue to mount a defence against the remaining suits. (A recent search of the Ontario Courts Public Portal identified approximately 70 active cases, listing Motherisk’s founder and director Gideon Koren and SickKids as defendants).
Late last year, they fought in Ontario Superior Court to have one lawsuit – seen as a test case for claims by other families – tossed out. The statute of limitations had passed, they argued, since the lab has been closed for more than a decade, and that they should be entitled to immunity because their work was done in an expert capacity. They also argued that they owed no duty of care to the families.
But in what claimants took as a small victory, Justice Loretta Merritt denied the defendants’ motion to dismiss the case. She determined the defendants raised legitimate legal questions, but said in a December ruling that those questions should be debated at a trial.
In March, Justice Merritt awarded the plaintiffs legal costs of almost $236,000 incurred to fight the motion, requiring the defendants to cover that amount and acknowledging in her ruling that the case pitted a small legal firm against one of the largest legal teams in the country.
Lawyer Gillian Hnatiw, who represented the plaintiffs in the lawsuit and is also representing two other families in Motherisk cases, said this is about “disparity in resources and power.”
“They are prepared to raise every procedural barrier available to them at law to prolong this process and hopefully exhaust the families, either financially or psychologically,” Ms. Hnatiw said in an interview.
Gillian Hnatiw, founder and principal of litigation firm Gillian Hnatiw & Co., at her office in Toronto, on April 8.Galit Rodan/The Globe and Mail
The Hospital for Sick Children declined an interview request, citing the court proceedings, and did not respond to detailed questions for this story. Mr. Koren – who moved to Israel and later relinquished his Ontario medical licence – did not respond to an interview request. His Toronto lawyer Darryl Cruz said he does not comment on active cases.
The reliability of Motherisk’s work first came under legal scrutiny in Canada in the 2014 appeal case of Toronto mother Tamara Broomfield. She was convicted in 2009 of repeatedly feeding her toddler cocaine, leading to a near-fatal overdose.
Prosecutors had relied on hair-testing evidence from the lab. Criticisms of its processes led the Ontario Court of Appeal to toss out Ms. Broomfield’s cocaine-related convictions. Following a subsequent investigation by the Toronto Star, the Ontario government commissioned an independent review of the lab led by retired judge Susan Lang.
In her final report at the end of 2015, Ms. Lang found the lab did not meet international forensic standards required for use in child protection and criminal proceedings, and said it “frequently misinterpreted” test results. The hospital, she found, failed to provide meaningful oversight. (The hospital suspended the lab’s operations during Ms. Lang’s review.)
The implications were vast, Ms. Lang’s probe found. The lab opened as a research facility in 1985, and began offering hair-strand drug and alcohol testing services in the nineties. Between 2005 and 2015, these tests were done on at least 16,000 people across Canada, many of them marginalized. The lab made millions of dollars, with the majority of its revenue coming from child protection agencies.
2016 Opinion: After Motherisk report, Sick Kids needs some serious self-reflection
In response to the Lang report, the province established a commission to review cases and assist families affected by the testing. During its two-year mandate, the commission led by retired judge Judith Beaman reviewed 1,271 cases from Children’s Aid Societies across Ontario.
“Only after we had reviewed several hundred cases and talked with many people who were affected by the testing did we begin to understand the full extent of the harm it had caused,” commissioner Beaman wrote in her 2018 report. “The testing was imposed on people who were among the poorest and most vulnerable members of our society, with scant regard for due process or their rights to privacy and bodily integrity.”
The commission found the Motherisk test results had a “substantial impact on the outcome” of 56 cases in which families were permanently broken apart.
After the lab was shuttered in 2015, the hospital’s then-CEO Dr. Michael Apkon apologized publicly to anyone who felt ”they may have been impacted.”
For hundreds of families, the apology wasn’t enough.
In 2017, Superior Court Justice Paul Perell declined to certify a proposed class-action lawsuit, concluding cases were too unique to proceed together. He noted there were already 328 named plaintiffs pursuing claims outside the proposed class-action suit, and ruled that keeping those individual lawsuits separate would be more “efficient and expeditious.”
2018: Discredited Motherisk hair-testing program harmed vulnerable families: report
However, the court also found most cases had legal questions in common.
The lawsuit that recently moved one step closer to a trial could help answer some of those questions.
On New Year’s Day 2016, the plaintiff mother said she saw a post in a Facebook group about a review being conducted into the Motherisk lab.
“I felt excited about it in a way,” she said in an interview. The Globe is not identifying her because of a court-imposed publication ban on the identity of children who have been the subject of Children’s Aid Society proceedings.
The mother’s statement of claim says in early 2011, her local CAS received a report about concerns she was drinking while pregnant. She denied doing so, the filing says.
An investigation was triggered, and the local hospitals were alerted. After her son was born, the hospital where she gave birth asked the Motherisk Lab to test the baby’s hair and meconium (the first bowel movement of a newborn baby) for signs of drug or alcohol use, according to the statement of claim.
When the test results came back two months later, the meconium test was negative. But the hair test came back positive for cocaine and benzoylecgonine, a cocaine metabolite. The mother adamantly denied having ever used the drug, but on a Friday afternoon, CAS workers obtained a court order and arrived at the woman’s home to take her two-month-old baby away.
2016: Hundreds of Ontario adoptions on hold while Motherisk cases reviewed
They put him into foster care for three days over the weekend before he was returned on the condition that he be under his father’s care in their shared home. For months, the statement of claim says, the mother was required to be under strict supervision when she was with her own baby.
She also had an older son with her ex-partner. Their split was acrimonious, and court documents note that her ex relied on the Motherisk hair test findings to cut off her access to the older child. It was “a significant period of time” before she saw her son again, her claim states.
Though she was ultimately able to resume co-parenting, she described it as a humiliating and traumatic experience. She said in an interview that the ripple effects continue today in the family relationships that have been permanently damaged, and in the anxiety and depression that still lingers.
“It destroyed my faith in the legal system to protect families,” she said. “It takes away your confidence as a mother – your confidence as a person – when you’re attacked like that.”
Still, in a twisted way, she feels lucky. She knows that there are dozens of other families who never got to see their kids again. “And that’s the scariest part about this, is it could have turned out so differently,” she said.
In December, when the judge sided with the mother and allowed the lawsuit to continue, Ms. Hnatiw and her client celebrated a small victory.
“It really just felt like relief,” Ms. Hnatiw said.
She said she expects the case to go to trial sometime in the next year or two.
“And I frankly look forward to that, because I think that sunlight sanitizes,” she said. “And there were failings here.”
Finally, she said, “it feels like we’re getting somewhere.”