Motherisk: Hospital for Sick Children; Ontario: The CBC's very bizarre, fascinating investigative story by CBC reporter Jorge Barrera, alleging that a lab involved in a "dog DNA debacle" used a phoney Facebook identity to recruit Sixties Scoop, Motherisk plaintiffs. (See 'Background' immediately below for an explanation of the infamous 'Sixties Scoop)..." "The same Toronto forensics lab that allegedly determined a chihuahua and a French poodle have Indigenous ancestry recruited Sixties Scoop survivors and Motherisk victims for lawsuits using what appears to be a phoney Facebook identity, a CBC News investigation has found."
PASSAGE OF THE DAY: "CBC
first reported on Viaguard Accu-Metrics in June after receiving tips
about odd results from the company's Native American DNA tests. Two
men in Quebec both claimed they sent in DNA samples from their dogs —
labelled with human names — that came back with positive results for
Indigenous ancestry. CBC
sent samples to Viaguard from two employees born in India and one born
in Russia. The results indicated all three employees were 12 per cent
Abanaki and eight per cent Mohawk. A different DNA testing company later
determined that none of the employees had any trace of Indigenous
ancestry. Viaguard defended its testing methods but stopped advertising its Native American DNA tests shortly after the story was published."
BACKGROUND: (Thank you Wikipedia!) "The Sixties Scoop
refers to a practice that occurred in Canada of taking, or "scooping
up", Indigenous children from their families and communities for
placement in foster homes or adoption. Despite the reference to one
decade, the Sixties Scoop began in the late 1950s and persisted into the 1980s."
STORY: "Lab in dog DNA debacle used phoney Facebook identity to recruit Sixties Scoop, Motherisk plaintiffs," by reporter Jorge Barrera, published by CBC News on September 15, 2018. (Jorge
Barrera is a Caracas-born, award-winning journalist who has worked
across the country and internationally. He is currently working for the
CBC Indigenous unit based out of Ottawa.)
SUB-HEADING: 'False hope can destroy people,' says Sixties Scoop survivor who was contacted by 'Carl Lee' Facebook account."
PHOTO CAPTION: "Toronto-based
Viaguard Accu-Metrics determined Snoopy the chihuahua had Indigenous
ancestry after it was sent the dog's DNA sample under a human's name."
GIST: "The same Toronto forensics lab that allegedly determined a chihuahua and a French poodle have Indigenous ancestry recruited
Sixties Scoop survivors and Motherisk victims for lawsuits using what
appears to be a phoney Facebook identity, a CBC News investigation has
found. In at least one case, Viaguard Accu-Metrics owner Harvey
Tenenbaum sent a Sixties Scoop survivor a retainer agreement from his
son's law firm that required a 33.3 per cent cut of any settlement. The
lawsuit never materialized. Another survivor who spoke
with Tenenbaum said he was led to believe he could earn a
multimillion-dollar payout, but instead was left bitter and broken. "False
hope can destroy people," said Steve Maher, 45, an Oji-Cree survivor
from the Peterborough, Ont., area who says Tenenbaum carelessly dredged
up painful thoughts about his past that sent him spiralling into drink
and depression. Tips from DNA story: CBC
first reported on Viaguard Accu-Metrics in June after receiving tips
about odd results from the company's Native American DNA tests. Two
men in Quebec both claimed they sent in DNA samples from their dogs —
labelled with human names — that came back with positive results for
Indigenous ancestry. CBC
sent samples to Viaguard from two employees born in India and one born
in Russia. The results indicated all three employees were 12 per cent
Abanaki and eight per cent Mohawk. A different DNA testing company later
determined that none of the employees had any trace of Indigenous
ancestry. Viaguard defended its testing methods but stopped advertising its Native American DNA tests shortly after the story was published. The investigation led to tips about the company's role in organizing lawsuits; The mystery of 'Carl Lee': Maher said last fall he received a Facebook message from a user named "Carl Lee" asking if he was a Sixties Scoop survivor. The
Sixties Scoop was a period from the 1950s to the 1980s when thousands
of Indigenous children were seized by provincial child-welfare agencies
and adopted out to non-Indigenous families. Maher is a
survivor and was intrigued by the message. He began communicating with
the Carl Lee account, which told him a lawsuit was in the works for
survivors and their biological mothers. Maher provided his biological
mother's phone number. Sometime between Nov. 10 and 14, Maher said he received a phone call from Tenenbaum. Tenenbaum
told him that, if successful, the lawsuit against the federal
government could net him and his biological mother $2.5 million each,
according to Maher's recollection of the phone call. Maher said the dollar figure impressed him. "Five million bucks — that is like, 'Wow!'" Steve
Maher, 45, a Sixties Scoop survivor, was approached over Facebook about
becoming a plaintiff in a lawsuit against the federal government. (Steve Maher) But
Maher said Tenenbaum then shared something that shattered him: His
biological mother had tried to get him back from his adoptive parents
but was refused. Maher had never heard this before. He didn't have a close relationship with his biological mother. "It blew me right apart," he said. He
started thinking about how his life could have been different, he
said, how he could have been spared so much pain and so many problems if
he'd been able to return to his mother.
Two weeks later, he hit bottom. "I started drinking," he said. "I tried to kill myself." Maher said he stopped communicating with Tenenbaum and changed his phone number so he couldn't contact him again. He
said he thought Carl Lee was a real person, but after researching the
account with the help of a friend, they noticed the web address reads
"kyle.tsui.142." Kyle Tsui is the name of Viaguard's lab manager. 'I thought it was odd': In
June 2016, the Carl Lee Facebook account contacted a woman living in
Tsilhqot'in territory in the B.C. interior near Williams Lake. The
Tsilhqot'in woman, who can't be named under privacy laws because she
has children in the province's child-welfare system, was asked if she
was interested in joining a Motherisk lawsuit against Toronto's Hospital
for Sick Children. The hospital's Motherisk lab was used
to test parents' hair for evidence of drug use in thousands of
child-welfare cases across Canada over more than a decade. But by 2015,
those hair tests, which had helped split up families, had been exposed
as unreliable.v"I
thought it was odd, because if you do [a legal action], you do it over
mail or phone," said the Tsilhqot'in woman, who provided screengrabs of
her Facebook conversations with the Carl Lee account. She said Tenenbaum called her to discuss the lawsuit sometime in June 2016. In
a subsequent exchange on Facebook, the Carl Lee account asked her how
they could "strategically" get other families in her area to join
the lawsuit. Throughout
July and August of that year, she continued to receive messages from
the Carl Lee account asking her to help recruit others and offering to
pay her for it. She didn't hear from the account again until Nov. 6, 2017; this time it was about a potential Sixties Scoop lawsuit. "We have something that will definitely benefit you," the message said. "We would like to call you to discuss." On
Nov. 15, she was sent a retainer agreement "for the biological family
of the 60s Scoop Survivors." The retainer agreement was for the Toronto
law firm Tenenbaum and Solomon, and was sent through Tsui's Gmail
account. A screengrab of the retainer agreement sent to the woman from Tsilhqot'in territory by Kyle Tsui. (Facebook) According
to the agreement, which was provided to CBC News, the law firm — which
lists Harvey Tenenbaum's son, Sheldon, as a partner — would get a
contingency fee of 33.3 per cent from any settlement. The woman was also asked to recruit other families to join, according to copies of Facebook messages. "Hi
Harvey, I've gotten a hold of several families after our call this
morning and they were interested up until they found out how much you're
charging," the woman wrote to the Carl Lee Facebook account, believing
she was communicating with Harvey Tenenbaum. She received a
message back suggesting that if people weren't happy with the fee they
should try finding another lawyer because "there is no other legal firm
that is doing this so they are taking all the risk." The
Tsilhqot'in woman said she'd try to find other families who would be
interested, but communication from the Carl Lee account stopped. She sent
several messages asking for updates between January and May. When she
wrote the account to say she'd been contacted by a CBC News reporter,
she received a message saying the lawyer "had lost interest."
People
signing agreements with my name on it and I don't see it and I don't
get them, that is a recipe for a law society complaint.- Sheldon Tenenbaum , lawyer
It
is never explicitly clear, based on the content of the Facebook
messages, whether Tenenbaum or Tsui wrote to her using the Carl Lee
account. Neither of them responded to CBC's requests for an interview. CBC contacted the Carl Lee account multiple times but received no response. CBC also called Viaguard asking for Carl Lee. "Who?" said a woman who answered the phone. "Carl Lee?" After the reporter mentioned Motherisk, she transferred the call to a man. "What's this regarding?" he said. When asked if he was Carl, he said "no" and hung up. Sheldon
Tenenbaum confirmed that his father and Tsui were trying to find
clients for a potential Sixties Scoop lawsuit, but he said no money was
ever exchanged with them. He said his father had "contacts
with some very influential Native leaders in B.C. or Western Canada." He
could not recall their names. He said he did get calls
from interested people in B.C. and Alberta but decided not to proceed
with any court action due to the amount of work required and the limited
uptake. He
said he didn't recall sending the retainer agreement to the Tsilhqot'in
woman. He said it would be troubling if retainer agreements were being
sent without his knowledge. "It's one thing to refer a
client to me; it's another to represent themselves as part of the firm
or contractually obliging them to me," he said. "People
signing agreements with my name on it and I don't see it and I don't get
them, that is a recipe for a law society complaint." On
Aug. 30, 2018, the Tsilhqot'in woman received an email with a letter
attached signed by Sheldon Tenenbaum that says: "We are unable to accept
the retainer and will not be acting." In an email to CBC, Sheldon Tenenbaum said he would only speak with the Tsilhqot'in woman about the issue. Motherisk lawsuit; Harvey
Tenenbaum and Tsui employed similar tactics to recruit an Ontario woman
to join a lawsuit filed by Toronto lawyer Ben Salsberg over the
Motherisk scandal, according to copies of social media conversations and
an affidavit filed in June with Ontario Superior Court. The
affidavit was part of a motion to sever the woman from one of
Salsberg's Motherisk lawsuits. The court filings include copies of a
Facebook post and emails between the woman, Tsui and Tenenbaum. The
woman, who can't be identified as a result of privacy laws surrounding
child-welfare cases, began communicating with Tenenbaum and Tsui in
January 2017 through the email address info@harmedbymotherisk.com, which was posted on a Facebook group for people affected by the lab's flawed results. She was sent a FedEx package "with an agreement to retain Benjamin Salsberg as your lawyer against Motherisk." Salsberg has
filed multiple lawsuits since 2016 on behalf of various plaintiffs
against the Hospital for Sick Children and the director and manager of
its Motherisk lab. Tsui emailed the woman instructing her to send the agreement back to Viaguard's office in Toronto, according to the affidavit. He
asked the woman to take a photograph of the signed agreement and email
it back to him so they could get started on her case "ASAP." The woman wouldn't hear anything until March 4, 2017, when she wrote asking about the status of the case. Tenenbaum
responded by email saying the case was "in court, awaiting pre-trial
dates, moving ahead very well, the lawyer advises," according to a copy
of the email conversation filed as part of the court record. The
woman never heard from Salsberg and never saw the statement of claim
filed on her behalf, which spelled her last name incorrectly, according
to the filings."Mr.
Salsberg did not respond to Ms. Kirkpatrick but, rather, telephoned me
at home and began to berate me," the woman said in the affidavit. CBC
News also obtained a document that shows Salsberg's email address was
sent information about the case. The information included a photograph
of the woman's signature on the retainer agreement and email
correspondence between Tsui, Tenenbaum and the woman. "I
am not going to discuss this with you," Salsberg said in a telephone
interview with CBC News. "I did not authorize anyone to recruit anyone
for me." '2018 version of ambulance chasing': Richard
Devlin, acting associate dean of research at Dalhousie
University's Schulich School of Law in Halifax, said referring
someone to a lawyer or law firm doesn't raise regulatory issues unless
the law firm pays for that type of referral. "Lawyers are not allowed to fee-split with anyone else." He
said a person or company could also face possible civil liability if
they were acting and distributing retainer agreements on behalf of a law
firm without the law firm's knowledge. "That would be
misrepresentation," he said. "They are obviously representing that they
have some sort of relationship with the law firm. If the law firm is
saying, 'No, they don't,' that is drawing on the reputation of the law
firm for their own gain." Jasminka Kalajdzic, an associate
professor of law at the University of Windsor who specializes in class
action lawsuits, said the activities described in the court files and
alleged by the individuals contacted by Viaguard could contravene
Canadian Bar Association guidelines. Specifically, those crafted in
response to problems that arose from the Indian Residential Schools
Settlement Agreement. The CBA is the largest professional
association of lawyers in Canada and has a voluntary membership. While
it is not a regulatory body, it does provide general moral and ethical
guidelines for lawyers. The new guidelines say "lawyers
should not initiate communications" with residential school survivors or
"accept retainers" until they meet in person.
It is a question of common sense and it is certainly against the spirit of the rules.- Jasminka Kalajdzic , associate professor of law at the University of Windsor
A
passage that could apply to Sixties Scoop survivors says "lawyers
should recognize that survivors had control taken from their lives as
children" and should be "given as much control as possible" over the
direction of their case. "I think any reasonable person has
an immediate gut reaction that this is wrong," Kalajdzic said. "It is a
question of common sense and it is certainly against the spirit of the
rules." She said the Law Society of Ontario's rules also
say a lawyer should "not use means that are false or misleading" or
"take advantage of a person who is vulnerable or who has suffered a
traumatic experience and has not yet had a chance to recover." "This
is the 2018 version of ambulance chasing," she said. "That is why we
have rules to avoid behaviour and re-traumatize people and get them to
agree to something when they are not in a position to be making an
informed decision.""
PUBLISHER'S NOTE: I am monitoring this
case/issue. Keep your eye on the Charles Smith Blog for reports on
developments. The Toronto Star, my previous employer for more than
twenty incredible years, has put considerable effort into exposing the
harm caused by Dr. Charles Smith and his protectors - and into
pushing for reform of Ontario's forensic pediatric pathology system.
The Star has a "topic" section which focuses on recent stories related
to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith.
Information on "The Charles Smith Blog Award"- and its nomination
process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html
Please send any comments or information on other cases and issues of
interest to the readers of this blog to: hlevy15@gmail.com.
Harold Levy: Publisher; The Charles Smith Blog;