In what appears to be the first case of its kind in Canada, the Supreme Court of BC has recently considered whether it is appropriate for the defendants in a personal injury action to require an injured plaintiff to submit to genetic testing. While the defence application was successfully opposed by Webster & Associates, the court did not go so far as to say such an order for testing could never be granted in the future.
The background to the court application was as follows. In the case of Benoit v. Banfield it was alleged that a child suffered a severe brain injury when she fell off a staircase belonging to the defendant and suffered a fractured skull. The defence sought an order that the child attend for a genetics assessment at the medical genetics department of the BC Children’s Hospital. Both blood and urine testing was to be conducted and the order sought was not limited in terms of types of tests to be done or time. There was even an indication that the samples could also be sent to laboratories in the United States for further analysis and that family member of the injured plaintiff could also be asked to undergo testing.
Webster & Associates opposed the order sought by the defendant on the basis that the order would have been an unwarranted invasion of the privacy rights, not only of the injured child, but also of her parents and her sibling. We also argued that the plaintiff should not have to undergo this testing on numerous other grounds, including:
- she had already undergone some ten previous defence medical examinations
- the application was brought very late and had the likelihood of delaying the trial
- depending on the types of tests done, the results could generate false positives
- some of the proposed testing was still experimental
- the defendant had failed to identify who would be conducting and interpreting the testing
- the suggestion that the plaintiff had any sort of pre-existing genetic condition was simply “boiler plate” and not a seriously pleaded allegation.
The matter was argued in August 2012. On August 15, 2012, the court agreed with the plaintiff and dismissed the application. Justice Pearlman of the BC Supreme Court said on pages 13 and 14 of the Oral Reasons for Judgment:
-  In my view, the issue of whether the plaintiff suffers from a pre-existing congenital condition from a genetic abnormality is not adequately raised on any of the pleadings in this case so as to warrant an order that she submit to genetic testing. There is no extant pleading of a pre-existing congenital condition by the applicant, and the pleading by the defendant Margaret Banfield is no more than a bare assertion that the plaintiff suffered injury, loss or damage attributable to congenital defects. This is a bare allegation boilerplate form.
-  The plaintiff has aptly described the application at para. 35 of her written submissions where she states that:The applicant is proposing that an unnamed clinician with unknown expertise will provide a list of unknown diagnostic considerations and the testing recommendations for a test be conducted and interpreted by unknown consultants.
-  Having regard to the importance of a qualified practitioner in the field of genetics undertaking the design and supervision of the genetic testing contemplated in this case, in my view the plaintiff is entitled to know the identity of the person who will conduct that testing and have an opportunity to consider their qualifications before she is compelled to submit to tests which have the potential to result in a significant invasion of privacy. I say this because genetic testing involves an examination of the test person’s genetic composition and may involve the identification of a wide range of medical conditions.
-  Depending on the nature of the testing ordered, there is also a potential that some of that testing may be performed in laboratories other than BC Children’s Hospital, including laboratories located in the United States. That consideration serves to underline the potential for invasion of privacy.
-  Another factor I take into account here in determining that the application should be dismissed is time limits. Drs. Wambera, Armstrong and Collins have all opined that there is at least the potential for follow-up studies, including the testing of relatives of the plaintiff which would undoubtedly result in the production of expert reports well beyond the date set for the delivery of expert reports in the case.
-  Without information identifying the medical practitioner who will conduct the test, and information describing the scope of the testing that expert proposes to perform, and on the current state of the pleadings, I am not persuaded that there is any sound basis for the court to exercise its discretion in favour of the defendant…
The reality is that each person has a unique genetic makeup. Each of us will have duplications and alterations in our chromosomes. Genetic testing has the ability to reveal a great deal about each of us. It is likely to form an integral part of future scientific advances that will reduce suffering, improve our survival and hopefully find cures to many terrible diseases. However, at least at this stage it appears that the courts will be appropriately cautious about allowing defendants to embark upon fishing expeditions into a plaintiff’s genetic makeup.