Ontario civil | Torts | Defamation | Justification
Individual plaintiff doctor believed he found means and developed procedure of obtaining fetal DNA from mother’s blood without risk of intruding directly on fetus. Individual plaintiff began selling test to public through corporate plaintiff and had not published paper, did not made presentation, and did not hold debate or discussion on his findings. Problems appeared with testing as some individuals who had purchased and relied on test questioned results, and more conventional tests produced dramatically different results than plaintiffs’ testing. Individual defendant conducted 18-month investigation and wrote article that was published in corporate defendant’s magazine, which reviewed experiences of some purchasers, referred to issues with test, mentioned plaintiff by name, and suggested that test results were unreliable. Various experts provided testimony on relevant issues, including accuracy of plaintiffs’ test, validity of testing method, and lack of proper protocol. Plaintiffs brought action in defamation against defendants. Action dismissed. Defence of justification was made out. Evidence was overwhelming that science necessary to confirm plaintiffs’ assertion that test was reliable and accurate was not done. Failure to produce proper protocol was further demonstration that requirements of proper scientific methodology were not met in work that supposedly supported usefulness of plaintiffs’ test. Implications of failure to complete science necessary to confirm validity of test led to conclusion that test could not be reliable or accurate. Cases where follow-up tests were conducted demonstrated that test was unreliable, inaccurate, and prone to error.
Health Genetic Center Corp. o/a Health Genetics Center v. New Scientist Magazine (2018), 2018 CarswellOnt 21558, 2018 ONSC 7224, Lederer J. (Ont. S.C.J.).
