By: Jacques Gallant Staff Reporter – Toronto Star, Published on Fri Jan 22 2016
A Scarborough woman who claims she lost custody of her only child because of erroneous hair test results from the Hospital for Sick Children’s Motherisk laboratory is suing the hospital and the lab’s former director and manager in what could become a massive class-action lawsuit.
Among other requests, a statement of claim filed in Superior Court this week by lawyers for Yvonne Marchand, 33, seeks a court order certifying the lawsuit as a class action and a declaration that the defendants were negligent in operating and supervising the Motherisk lab.
“For years, I would just cry and tell anybody who would listen that I was a good mom and that I love my little girl so much, but people just think you’re crazy,” Marchand told the Star, reflecting on her life before recent revelations about the lab tests. “Now at least the truth comes out. I wasn’t just making things up.”
Marchand underwent hair testing by Motherisk when the father of her 2-year-old daughter made false allegations of alcohol abuse during a custody dispute and the Catholic Children’s Aid Society of Toronto decided to investigate, she alleges in her statement of claim.
She claims the test produced a “false-positive result,” meaning it showed she was abusing alcohol even though she wasn’t. The statement says Marchand then went for an independent test from an accredited lab, which concluded she was negative for alcohol abuse.
But the judge at her court proceeding, about four years ago, refused to admit the independent test because the author of the test wasn’t present, Marchand claims. The lab’s manager was in court, but Marchand, who represented herself, didn’t know how to qualify the manager as an expert in order to testify, according to the statement of claim.
She claims the judge then relied on the Motherisk test result to strip her of custody of her daughter, whom she said she now sees only six hours a week.
None of the allegations in Marchand’s statement of claim has been proven in court.
“I thought with the negative test she would be coming home,” Marchand told the Star, becoming emotional over the phone. “I was just sobbing in court. There’s nothing I could say. He’s the judge.”
Marchand said she was “very, very happy” to see the damning independent review of the Motherisk hair test results released by retired judge Susan Lang last December, which found the lab’s tests “inadequate and unreliable.” It confirmed, Marchand said, what she had believed all along.
The lawsuit comes as a commission begins to review potentially thousands of Ontario child-protection cases that relied on Motherisk hair testing over the past 25 years.
“Although it is difficult for us to comment on any specific situation, we recognize that in some cases, families may have been impacted by the practices of the lab,” Sick Kids CEODr. Michael Apkon told the Star in a statement Thursday.
“We apologize deeply that this may be so and acknowledge responsibility for the hospital’s role. We appreciate that in some cases, we may need to participate in compensating impacted families.”
A hospital spokeswoman said Joey Gareri, who worked as the lab manager at Motherisk and often testified at child protection proceedings, would not be commenting. The lab’s founder and long-time director, Dr. Gideon Koren, retired last year and could not be reached for comment.
Among the allegations in the lawsuit, which could become a $450-million class-action, is that, prior to 2010, Motherisk relied on a testing methodology that was not considered the “gold standard.” That methodology was the focus of a Star investigation that led to the independent review and the commission that is now reviewing old cases.
The statement of claim also alleges the lab lacked standard operating procedures, lacked oversight, failed to routinely wash hair samples before testing, and practised poor record-keeping.
“The disruption and removal of children from parents is unfathomable,” said one of Marchand’s lawyers, Rob Gain, “and has a dramatic effect that no amount of money will be able to make these families whole again.”