Niemela v. Malamas Page 19 [63] While the decision in L.D. was subsequently overturned, the British Columbia Court of Appeal endorsed the comments quoted above: 2012 BCCA 491 at para. 19. [64] However, Sewell J.’s comments must be read in context. In that case, the plaintiff commenced a proposed class proceeding against the Provincial Health Services Authority (“PHSA”). At the time of the birth of the plaintiff’s child, the PHSA had a policy to take a blood sample from newborns with parental consent in order to test for possible genetic disorders. Samples were retained for 19 years to facilitate re-testing in the event of subsequent illness, for quality assurance and to develop better or new test processes. The plaintiff mother gave consent to have the samples taken, but claimed she would not have given consent had she been aware of the storage of the samples beyond the initial testing period. [65] The plaintiff's statement of claim alleged the blood samples were obtained through negligent or fraudulent concealment of material facts. It further alleged the collection and storage of the samples was an unlawful seizure contrary to s. 8 of the Charter and a tort under the Privacy Act. The Health Authority applied for dismissal of the plaintiffs' claims pursuant to Rule 9-6(4). The chambers judge found it unlikely the mother would have refused consent to the taking of the samples had full disclosure of their storage and use been provided. The judge dismissed all of the claims and granted leave to amend to address the issue of whether the Health Authority acted improperly in making the samples available to outside parties for medical research purposes, thereby giving rise to a tort under the Privacy Act or a breach of fiduciary duty. The plaintiffs appealed. [66] The appeal was allowed on the basis that the issues raised by the action were unsuitable for resolution under Rules 9-6(4) and (5) (at para. 20). 2015 BCSC 1024 (CanLII) issue of law is well settled by authoritative jurisprudence. It seems to me that Rule 9-7 is better suited for deciding novel points of law because on a summary trial the court will have a more complete record framing the question of law. I also note that Rules 9-3 and 9-4 are available for determining points of law on an agreed record.