Dr. Barwin Class Action

A judge of the Ontario Superior Court of Justice has approved a settlement for former patients and their children in the class action lawsuit of Davina Dixon, Daniel Dixon, and Rebecca Dixon v. Dr. Norman Barwin, Court File No. 16-70454CP.

The action alleges Dr. Barwin’s patients in Canada gave him consent to use specific semen for AI procedures administered by him (or at another fertility clinic with semen previously stored with him). The action also alleges that Dr. Barwin’s patients entrusted their semen to him for safekeeping. The action alleges that Dr. Barwin used semen in the AI procedures that did not accord with the consent of his patients and/or that he failed to safekeep the semen entrusted to him.

An eligible claim (making you an eligible claimant) means that you fall within one of the classes (see below for the definition of the classes) and that as one of the members of those classes you can demonstrate that you fall within one of the Harm Categories. This is also described below. 

You must submit a Claim Form and send it to the claims Administrator along with the OrchidPro legal DNA test or other compelling evidence that proves your claim. You can obtain and complete the form here.

Please follow the instructions on the Claim Form carefully. Class Counsel is available to help you complete the form and send your DNA test results to the Claims Administrator.

You will need to swear an oath that the information you provide on the Claim Form is true. 

You can email a copy of your claim form to [email protected].

You can also mail a copy of your Claim Form. You must mail your Claim Form by February 28, 2022.

You should deliver a completed Claim Form to the Claims Administrator along with notarized copy of government issued photo identification and Orchid Pro Legal Chain of Custody DNA test that shows the nature of your claim, and if not possible to obtain, the next best evidence.

You can deliver completed form and supporting documentation by email at [email protected]  or by mail, courier, or personal delivery at:

Mothers Class: All patients of the defendant who were administered artificial insemination (AI) in Canada  between July 1973 and 2012 by either (i) the Defendant, or (ii) at another fertility clinic, with semen originally entrusted to the Defendant, from which AI they conceived and gave birth to a child whose biological father does not accord with the consent given by these patients in regard to the semen.

Spouse/Partner/Former Patient Class: 

a.    All persons who were a partner or spouse of a Mothers Class Member when the AI was administered and who agreed to have their own semen or specified donor semen used for the AI of a Mothers Class Member, but where the biological father of the child conceived during the Class Period and born of the AI does not accord with their said agreement; and

b.  All patients of the defendant in Canada who entrusted their semen to the defendant for storage, safe-keeping or specific purpose but which semen was used in the course of AI performed by the defendant during the Class Period that resulted in the birth of one or more children who do not accord genetically with the consent these patients gave in regard to the storage and/or use of their semen.

Children Class: All persons conceived and born by Mother Class Members as a result of AI performed by the defendant during the Class Period with semen entrusted to the defendant whose biological father does not accord with the consent given by their biological mother for the AI.

Harm Category 1: Cases where a couple went to see Dr. Barwin (typically husband and wife) and where the couple consented to the Spouse/Partner’s semen to be used in the process of artificial insemination. Claimants will qualify for compensation where they have DNA evidence showing that the child or children conceived with Dr. Barwin’s assistance or with semen previously entrusted to Dr. Barwin is/are not the biological child of the man in the couple.

The Claimants in this category include, the Mother, the Spouse/Partner and their Child(ren) conceived with semen other than the Spouse/Partner’s semen. 

Harm Category 2: Cases where a parent or parent(s) had one or more children by way of artificial insemination administered by Dr. Barwin and where the couple consented to a specific donor or donors being used in the artificial insemination procedure(s).  Claimants will qualify for compensation where they have DNA evidence demonstrating that (a) their child or children do not match their semen donor; or (b) the parent(s) consented to the same donor being used for all of their children and the children do not share the same semen donor.  In some cases, Claimants may prove their case by way of reliable evidence other than a legal DNA tests where, for instance, they are unable to locate their semen donor.

The Claimants in this category include, the Mother, the Spouse/Partner of the mother and any Child(ren) who were conceived by artificial insemination with semen other than the semen consented to by their Mother.

Harm Category 2A: In cases where the Child(ren) is/are the biological offspring of Dr. Barwin.

Harm Category 2B: In cases where the biological father has been identified otherwise or not all.

Harm Category 3: Cases where an individual entrusted semen with Dr. Barwin for the purposes of storage and safe-keeping or other specified purpose and that semen resulted in the conception of one or more children for another unrelated patient. Claimants will qualify for compensation where they provide DNA evidence that the semen entrusted with Dr. Barwin resulted in the conception and birth of another unrelated patient’s child or children. Anonymous semen donors are excluded from this claim.

The Claimants in this category are the Former Patients who entrusted the semen with Dr. Barwin

If you qualify for one of the three Harm Categories, the amount of compensation you receive will depend on the total number of eligible claimants. You may receive up to the following amounts:

There may not be sufficient funds to compensate all Claimants on the basis of the values set out above. In that scenario, the value of each category will be adjusted downward such that each Claimant receives the proportionate share of the settlement based on his or her Harm Category.

Other than as provided above, a Claimant may not recover twice under the Harm Categories. If a Claimant qualifies for more than one Harm Category, the Administrator will assign the Claimant to the Harm Category that provides the Claimant with the highest amount of compensation for which they qualify.

Claims forms will be available in November 2021 and once the Court approves the proposed settlement.  In most instances, Class Members will require an Orchid Pro DNA test.  Many Class Members already have these tests and in those cases no follow-up is required now.

If a potential Class Member does not yet have an Orchid Pro DNA test, they should consider participating in the DNA database or otherwise following up with Class Counsel to determine if the explanation of why they do not have an Orchid Pro DNA test in support of their application will be sufficient.

Further information on the DNA Database is below.

The settlement does not include semen donors or individuals who left semen with Dr. Barwin and consented to that semen being used on other patients. Individuals who previously resolved a claim against Dr. Barwin and executed a release in his favour are also not included.

The primary purpose of the DNA Database will be to provide the Children Class with the opportunity to identify their biological fathers, obtain medical health history, and locate half-siblings. It will also provide individuals who entrusted their semen with Dr. Barwin to determine if he misused the semen to conceive a child with another patient of his.

The DNA Database will run from August 3, 2021 until February 15, 2022. If you participate in the DNA database for the purpose of discovering whether you are eligible claimant in order to opt out from action, you must provide your DNA sample prior to September 15, 2021.

Class Counsel can assist you with the DNA Database process. Please contact:

Robyn Beaulne – law clerk

Tel:        613-231-8214

Fax:       613-788-2370

[email protected]

DNA testing done by OrchidPro creates a DNA profile.  The DNA profiles of all class members who wish to participate will be input into the database.  The database will compare the profiles to determine any matches.  If a match occurs, a technician will then verify the match by reviewing both profiles.

Any potential class member (someone who fits within the class definitions above) may participate. If a match is found, they will likely have the foundation for a claim. 

Anonymous sperm donors may also participate on a voluntary basis in order to help determine if there are any matches, but they will not be able to become an eligible claimant or be entitled to any compensation in the class action.

If you have already had DNA testing done by OrchidPro, then all you will need to do is sign (1) DNA Database Disclosure and Consent Agreement and (2) Orchid Pro Authorization for ReUse of DNA sample previously provided.  In some instances, male participants who have already provided DNA samples to Orchid Pro will need to provide new samples.  Class Counsel will be contacting these individuals directly. 

If you have not had DNA testing done through OrchidPro then you will need to do so and also will need to sign the DNA Database Disclosure and Consent Agreement.  In order to arrange for DNA testing contact:

Robyn Beaulne – law clerk

Tel:        613-231-8214

Fax:       613-788-2370

[email protected]

You can arrange to give a DNA sample at any time. It is a cheek swab.  You can give a sample at any of the OrchidPro labs.  To make arrangements to provide a DNA sample contact:

Robyn Beaulne – law clerk

Tel:        613-231-8214

Fax:       613-788-2370

[email protected]

Many patients are concerned that if a match occurs, it may give rise to legal rights and obligations.  The agreement addresses all of these concerns so that all parties will know and agree to the same terms in the event a match is made.

As noted above, in most cases all you will need to do is sign the DNA Database Disclosure and Consent Agreement and the Orchid Pro Re-Use Form and provide it to class counsel.

No.

The DNA Database Disclosure and Consent provides for what will happen if there is a match: your name and e-mail address will be provided to the individual that you matched with. This could be a paternity match or a half sibling match.

For former patients, it is strongly encouraged that they agree to complete the Medical and Health History Form so that it may be shared in the event of a match and to provide medical history to one or more members of the Child Class.

OrchidPro is required to continue to hold on to the DNA profile of anyone who tested at their labs.  The DNA Database will be destroyed once the claim period ends.

To properly and timely submit a claim, the Claim Form and proper supporting documentation must be postmarked by no later than February 28, 2022.

If you need further information, please contact Class Counsel for details.