Vitiating factors: How one Toronto doctor’s “wrongful birth” claim could change Tort Law
After they had a brief sexual relationship, a 42-year old Toronto physician recently attempted to sue a woman when she became pregnant with his child.
The physician and the defendant, a 37-year old medical practitioner, engaged in a brief and casual sexual relationship for several months in 2014. The defendant informed the plaintiff that she was on birth control, and the parties had sex numerous times without the use of a condom. The defendant later informed the physician that she was pregnant, and a paternity test proved that he was the father. The physician then sued her for over $4 million in damages.
The plaintiff argued he had been misled into believing the defendant was on birth control, and though he would not contest the child support payments, he believed he was entitled to punitive damages. The defendant’s lawyer said that the argument was, in essence, a claim for wrongful pregnancy and birth.
Thus far, the defendant has not allowed the plaintiff to see the infant, though the plaintiff has expressed an interest in having a relationship with the child.
The Ontario Superior Court of Justice dismissed the plaintiff’s claim. Justice Perell stated that the plaintiff’s pleading of fraudulent misrepresentation, even when read generously, was a disguised pleading of sexual battery.
Justice Perell concluded that there should be no order for costs, in order to safeguard the interests of the child. The child, now a healthy 10-month old baby, remains in the care of her mother. Thus far, the defendant has not allowed the plaintiff to see the infant, though the plaintiff has expressed an interest in having a relationship with the child.
However, the child’s best interests may have already been compromised due to the plaintiff’s actions.
The plaintiff is referred to as PP and the defendant as DD in the court ruling, following a confidentiality order made by Justice Perell out of concern that the child in question may someday “read the decision, self-identify, and be traumatized.”
Despite this, the potential for the child to self-identify still exists. Lynne Hanson, a torts and health law professor at Queen’s University, explains the potential for self-identification due to the nature of the case.
“I believe it is possible that the child could find out that this case was about them. It’s Toronto, and the parents are both health care professionals,” Hanson explains. “The circles aren’t that big. People talk, it’s in the media now, so I think the child would find out.”
Several major newspapers and social media sites have posted articles about the case, including the Toronto Star.
Despite the plaintiff’s questionable integrity in bringing such a case forward, the case does set an interesting precedent. Professor Hanson explains some of the impact that PP v DD is likely to have.
“I think it is very interesting that someone would allege that any dishonesty in a relationship context could vitiate consent. It is certainly a novel case. It provides some clarity in terms of what kinds of conduct will be legally actionable and what the law will not intervene in. It would be problematic if every form of dishonesty in human relationships would give rise to charges of fraud.”
Professor Hanson finds that the case sets an interesting precedent, which may affect how she teaches her students.
“When I read the case, I was very excited to see a tort case that expressly used the criminal law vitiating factors for consent. I teach both tort law and criminal law, but what I’d like is a case that expressly imports the criminal test into tort law.”
The unusual nature of the case may be the reason for the attention surrounding it.
“I was struck by the vindictiveness (of the case),” Professor Hanson concludes. “Speaking as a human being, not as an academic.”
Matthew Cook (3L) is a contributor to Juris Diction.