Lab in dog DNA debacle used phoney Facebook identity to recruit Sixties Scoop, Motherisk plaintiffs

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!'"

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.  

"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.

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.

In December 2017, her new Toronto lawyer, Julie Kirkpatrick, wrote Salsberg informing him she was now representing the woman.

"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."

MORE FROM CBC INDIGENOUS: