2022 QCCA 789, 2022 QCCA 789

McKenzie c. Xytex Corporation (Xytex Cryo International Outreach Health Services Inc.) 2022 QCCA 789 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500- 09-029776-218 (500-22-256546-196) MINUTES OF HEARING DATE: June 3, 2022 CORAM: THE HONOURABLE STEPHEN W. HAMILTON, J.A. CHRISTINE BAUDOUIN, J.A. PETER KALICHMAN, J.A. APPELLANT COUNSEL Jewell Mckenzie Mtre André Denis ( André Denis, avocat) By videoconference RESPONDENT COUNSEL Xytex corporation, doing business as XYTEX CRYO INTERNATIONAL Outreach health services inc.

Mtre Marika Douville ( Robinson Sheppard Shapiro ) Seang Lin Tan, practising the profession of medicine Originelle fertility clinic and women's health center inc. Mtre MATTHEW MELAND Ms. ZACHARY ZEIGLER, articling student (Greenspoon Winikoff) On appeal from a judgment rendered on October 8, 2021 by the Honourable Sylvain Coutlée of the Court of Québec , District of Montreal. NATURE OF THE APPEAL: Application for leave to appeal granted – Abusive procedure.

Clerk at the hearing: Ariane Simard-Trudel Courtroom: Pierre-Basile-Mignault HEARING 9:36 Commencement of the hearing. Identification of counsel. 9:38 Submissions by Mtre Denis 9:44 Discussion between the Court and Mtre Denis. 9:47 Mtre Denis resumes his submissions. 10:00 Discussion between the Court and Mtre Denis.

Mtre Denis resumes his submissions. 10:03 Submissions by Mtre Douville 10:07 Discussion between the Court and Mtre Douville. 10:24 Submissions by Mtre Meland. 10:26 Discussion between the Court and Mtre Meland. 10:49 Submissions by Mtre Douville. 10:52 Reply by Mtre Denis. 10:53 Recess of the hearing. 10:58 Resumption of the hearing. 10:59 BY THE COURT : Judgement – see page 4. Conclusion of the hearing.

Ariane Simard-Trudel, Clerk at the hearing JUDGMENT [ 1 ] The Appellant sued the Respondents in connection with an in vitro fertilization (IVF) process in which she was provided sperm from a donor who was found to be the carrier of a genetic mutation. She claimed as damages the amounts that she paid for the sperm and the IVF services, as well as moral damages for the physical, psychological and moral harm that she suffered.

The judge in first instance granted the Respondents’ applications to dismiss and dismissed her amended originating application. [1] Essentially, the judge held that, since the Appellant was foreclosed from producing an expert’s report, her claim was clearly destined to fail.

She appeals from that judgment. [ 2 ] Without commenting on her chances of success at trial, and recognizing that the absence of an expert report will necessarily make it more difficult for her to meet her burden of proof at trial, we are of the view that it was premature for the judge to conclude at a preliminary stage that she cannot meet it and to dismiss her action entirely.

There may be ways to prove fault, damage and causality without expert evidence, particularly where the sale of the sperm may involve a warranty of quality and where the government has established standards applicable to fertility clinics and their activities. FOR THESE REASONS, THE COURT: [ 3 ] ALLOWS the appeal; [ 4 ] SETS ASIDE the original judgement rendered on October 8, 2021 by the Honourable Sylvain Coutlée, Court of Quebec, District of Montreal; [ 5 ] DISMISSES the respondents oral applications to dismiss; [ 6 ] THE WHOLE with legal costs, in first instance and on appeal.

STEPHEN W. HAMILTON, J.A. STEPHEN W. HAMILTON, J.A. PETER KALICHMAN, J.A.