In 2021, the Ontario Superior Court released the monumental decision, Klinck v Dorsay, which held that medical examinations involving genetic testing may be ordered in private civil actions. This decision was made in a medical malpractice lawsuit and raised much controversy due to the intrusiveness of this order, and the privacy concerns that this poses for Canadians.
The Court held that it would be unfair to deprive the parties from acquiring evidence that may assist in their defence. In other words, it would be unfair for the Court to deprive the Defence from evidence that may assist in their defence as genetic tests can provide information that is relevant to the claim. The request to allow the Court to order genetic testing was deemed to be warranted, legitimate and in the best interest of the most just and expeditious result. However, a defendant’s right to genetic testing is not infinite as the Plaintiff’s genetics must be a significant issue and the case and must be properly raised.
In this episode, Bobbie and Jodie discuss and break down this development, considering the policy implications of this decision. While genetic testing can provide certainty in establishing causation and allow for a full defence to be made, there are serious privacy concerns with the courts intervening so deeply in one’s life. Genetic testing is incredibly intrusive and can result in an individual uncovering information about themselves that they wish to not have known. Join our hosts in a discussion on the balancing of fairness to the Court and a right to individual privacy.
Bobbie Alvernaz & Jodie Koniuch – Producers, Hosts, Editors
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Pro Bono Radio is part of the Queen’s chapter of Pro Bono Students Canada. The Pro Bono Radio team are not lawyers, and this is not legal advice.
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Research Referred to in the Podcast:
Klinck v. Dorsay, 2021 ONSC 6285
Benoit v Banfield, 2012 BCSC 26
Adacsi v Amin, 2013 ABCA 315
Preece v Nicholson et al., 2019 PESC 34
Courts of Justice Act, R.S.O. 1990, c. C.43
Rules of Civil Procedure, R.R.O. 1990, Reg. 194
Bernise Caralino, Ontario court orders genetic testing in obstetrical malpractice action despite privacy concerns (October 2021), online: The Canadian Lawyer https://www.canadianlawyermag.com/practice-areas/medical-malpractice/ontario-court-orders-genetic-testing-in-obstetrical-malpractice-action-despite-privacy-concerns/360990
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