Motherisk Class Action
The Motherisk Class Action has now been discontinued.
In 2016, Koskie Minsky LLP and Sutts, Strosberg LLP commenced a class action against The Hospital for Sick Children (“SickKids”) due to flawed hair-strand drug and alcohol testing conducted by Motherisk between 2005 and 2015. Dr. Gideon Koren, the founder and laboratory director of Motherisk, and Joey Gareri, the laboratory manager at Motherisk, are also named as individual defendants in the lawsuit. The claim alleged that the defendants were negligent by, among other things, failing to meet internationally recognized forensic standards with Motherisk’s hair-testing and by failing to provide proper oversight to ensure the quality, proficiency and accreditation of its tests.
In November 2017, the court decided that the case could not proceed as a class action. Attempts to appeal that decision were unsuccessful. The uncertified class action was discontinued on December 14, 2021.
When a person has a legal claim that they can bring to a court, they usually have to do so within a set period of time. This is referred to as the “limitation period”. When a class action is started, the limitation period is suspended, or paused, for the proposed class of people whose claims would be part of a class action. In this case, the proposed class included the following people:
- all persons who tested positive from a hair-strand drug and/or alcohol test administered by Motherisk between January 2005 and April 2015 (the proposed “Class”); and
- all parents, grandparents, children, grandchildren, siblings and spouses of Class members within the meaning of the Family Law Act (the proposed “Family Class”).
For these people, the limitation period on their claims in relation to Motherisk was paused between December 22, 2015 and December 14, 2021. As the action started by Koskie Minsky LLP and Sutts, Strosberg LLP was not certified as a class action, Koskie Minsky LLP is now representing a group of individual plaintiffs in claims related to Motherisk. On December 14, 2021, the uncertified class action was discontinued and the limitation period began to run again for the claims of people who would fall within the Class and the Family Class, as described above.
If you fit within this group of people, you may become unable to bring a claim in relation to Motherisk as the limitation period has begun to run again. You may wish to consult your own lawyer about this issue as soon as possible.
We are unable to represent any additional plaintiffs in this matter. If you wish to pursue an action in relation to Motherisk, you must seek counsel and file a claim.
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Latest Developments
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December 21, 2021
December 14, 2021: The class action was discontinued by the Ontario Superior Court of Justice
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October 29, 2020
The Ontario Court of Appeal upheld the motion judge’s decision that the limitation periods of all former putative class members remain suspended following the denial of certification. You can read the decision of the Court of Appeal by clicking here.
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December 4, 2019
The Defendant is appealing Justice Perell’s most recent Order. We will provide a further update as soon as we get the appeal decision.
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March 25, 2019
The Ontario Court of Appeal has dismissed the plaintiff’s motion for leave to appeal. The plaintiff is seeking directions from the court about next steps in this proceeding. Please check this case page frequently for updates on the status of the case.
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December 10, 2018
The plaintiff has sought leave to appeal from the decision of the Divisional Court to the Ontario Court of Appeal.
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November 26, 2018
The plaintiff lost their appeal. This means that the court case is not allowed to proceed as a class action. The plaintiff’s next step will be to seek leave to appeal to the Court of Appeal for Ontario. You can read the appeal decision of the Divisional Court by clicking here.
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November 19, 2018
The appeal from the denial of certification will be heard on November 21, 2018 at Osgoode Hall, 130 Queen Street West, Toronto, ON M5H 2N5 in Courtroom #3. The Court’s decision will likely be released several months after the court hearing.
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November 6, 2018
The Appeal in this matter will be heard on November 21, 2018 by the Divisional Court.
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July 11, 2018
The parties have served all of the material for the appeal. The appeal will likely be heard in the fall of 2018.
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November 8, 2017
The court decided that this case should not be allowed to proceed as a class action. The decision of the court can be read by clicking here. We are appealing the decision of the court to argue that the case should be allowed to continue as a class action. The decision on the appeal will be posted on this webpage.”
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October 10, 2017
The certification hearing in this matter will he held on October 11-12, 2017 at 10:00 a.m., Osgoode Hall, 130 Queen Street West, Courtroom #5.
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September 5, 2017
All cross-examinations in preparation for the certification hearing are complete. The certification hearing is Scheduled for October 11-12, 2017. The location will be posted on this webpage closer to the date of the hearing.
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April 12, 2017
The defendants’ responding materials on the certification motion are presently due on May 30, 2017. The responding materials consist of the written evidence that the defendants would rely on in the court hearing about whether the case should become a class action.
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November 15, 2016
The plaintiff has now served their motion record for certification. The motion record for certification contains written evidence the plaintiff will use at the court hearing to argue that this case should become a class action.
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October 26, 2016
The court approved a timetable whereby the motion for certification will be heard in October of 2017. The motion for certification is a court hearing that will decide whether this case goes forward as a class action.
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March 31, 2016
The Defendants have served notice on the Province of Ontario that they intend to bring a third party claim against the Crown. As a result, by order of Justice Perell dated March 9, 2016, the Defendants now have 80 days by which to deliver their statement of defence and any third party claims. The next case conference in this matter is scheduled for August 4, 2016. The Plaintiff is at liberty to deliver its certification record after the pleadings are closed.
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February 17, 2016
The Class Proceedings Fund has granted funding for this action.
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January 21, 2016
The hearing to decide whether funding should be granted to this action from the Class Proceedings Fund is scheduled to be heard on February 17, 2016.
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January 20, 2016
A Statement of Claim has been issued in this case. A copy can be found here.
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December 22, 2015
A Notice of Action has been issued in this case. A copy can be found here.
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December 21, 2021
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News Releases and Reports
- January 20, 2016 Statement of Claim Issued in SickKids “Motherisk” Lab Class Action
- December 18, 2015 Koskie Minsky To Launch Class Action Due To Flawed Motherisk Lab Testing
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Documents
- December 4, 2019 Reasons For Decision
- November 26, 2018 Decision of the Divisional Court
- November 1, 2017 Reasons for Decision
- October 10, 2017 Factum of the Plaintiffs
- December 9, 2016 Amended Statement of Defence of the Hospital for Sick Children and Joey Gareri
- December 9, 2016 Amended Statement of Defence of the Defendant, Dr. Gideon Koren
- November 16, 2016 Amended Statement of Claim
- January 20, 2016 Statement of Claim
- December 22, 2015 Notice of Action
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FAQS
What is a class action?
A class action is a lawsuit which provides a method for a large group of people with common claims to join together to advance one large claim. Class actions are a more efficient and cost-effective way for groups of people with common claims to gain access to the legal system and seek justice.
What does certification mean?
In order for an action to proceed as a class action, the court must determine whether it is appropriate for the case to be treated as a class action. Some of the factors the courts consider are the extent to which the claims of the class
members are common, and whether a class action is preferable to other methods (such as individual actions) of advancing the issues. The decision as to whether a class action should be certified takes place at a certification hearing and is decided by a judge. If certified, a representative plaintiff will advance the action on behalf of all of the class members.How do I know if I am a Class Member?
The certification order will always contain a description of who is a class member. We post the certification orders in our actions so that you can review them. You do not need to “sign up” to become involved in a class action. If you are included in the class description, you are automatically a class member who will be affected by the outcome of the class action unless you decide to “opt out”.
Are Class Members notified of the certification of the class proceeding?
Yes. After the claim has been certified, the court will authorize notice to be given to the members of the class.
Can I opt out of a class action and pursue independent legal action?
Yes. When a class action is certified, class members are always given an opportunity to opt out of the action. A deadline is imposed for opting out. If you do not opt out by the given deadline, class members will be bound by the outcome of the class action, whether it is successful or unsuccessful. If you opt out, you will not receive any benefit if the action is successful.
Will there be any cost to class members for legal fees?
Typically, class actions are handled on a contingency fee basis, which means that the class action lawyers will be paid only if the class action is successful at trial or settled. In that case, class counsel fees may be paid by the defendants or out of the settlement or judgment proceeds as approved by the court. In addition, the plaintiff may seek funding assistance from the Class Proceeding Fund which, if funding is granted, may provide funding for disbursements.
I still have questions…
Please feel to contact us by using the contact information on this site.
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Contacts
Toll-free Hotline: 1-844-819-8521
Email: motheriskclassaction@kmlaw.ca
