An Ontario couple has filed notice of legal action against a Toronto fertility clinic after an alleged storage tank malfunction damaged their eggs and embryos.

In documents filed in Ontario Superior Court last week, the Mississauga, Ont., husband and wife, identified only by their initials, are seeking damages for negligence, breach of contract and breach of fiduciary duty. The notice of action seeks to commence a class-action lawsuit on behalf of the couple and any other affected individuals.

According to the court document, the couple was informed in late May that one of the cryogenic tanks owned by the ReproMed fertility clinic had malfunctioned. As a result of the malfunction, the couple’s nine embryos and 15 eggs were deemed “likely not viable,” the document claims.

The notice of action names The Toronto Institute for Reproductive Medicine Inc., ReproMed Ltd., its medical director, Dr. Alfonso Del Valle, and U.S.-based Chart Industries Inc., as the defendants.

Chart Industries Inc. makes cryogenic equipment and the plaintiffs believe that their eggs and embryos were stored in a Chart tank at ReproMed.

In April, Chart Industries issued a recall notice for some of its cryobiological tanks over a reported “vacuum leak.” The company has been named among the defendants in recent U.S. lawsuits over damaged eggs and embryos at two fertility clinics.

The Canadian class-action lawsuit will have to be certified by the court in order to proceed.

The plaintiffs, who want to remain anonymous, said they were “shocked” when they found out what happened to their reproductive materials.

“My husband and I put our trust in ReproMed to help us grow our family. When we were notified that our eggs and embryos were no longer viable, we instantly grieved the loss of the family we envisioned,” one of the plaintiffs told CTV News in a statement.

“We were shocked and frustrated that something like this could have happened. More than anything, we feel sadness for ourselves and other families that suffered the same loss.”

The couple’s lawyer, Bridget Moran of the Siskinds Law Firm, told CTV News that her clients are “heartbroken” over the loss of their embryos.

“Seeking fertility treatment and going through the months of uncomfortable, risky and uncertain medical procedures is one of the biggest things a family can do and often times it can be their last resort,” Moran said in an interview.

“So to find out that your eggs and embryos that you trusted were in a safe place are no longer viable -- that’s heartbreaking for these families … Our clients are heartbroken. They had dreams for a family that they are not sure they will be able to replicate.”

Moran said the fertility clinic offered her clients the opportunity to have another round of IVF and egg storage for free.

“In our view that is not sufficient compensation for what happened to them,” she said.

“It’s not just the financial impact that these families have suffered, for some people the genetic material they have stored at ReproMed could be their last opportunity to make the family they wanted.”

The Toronto Institute for Reproductive Medicine said Monday that it first learned about the proposed class-action lawsuit from CTV News. It also acknowledged the storage tank failure.

“ReproMed deeply regrets that this occurrence took place,” the company said in a statement. “The failure of the storage tank was not expected.”

The clinic said it has notified its patients and its team has been “working tirelessly to investigate and address their concerns.”

‘Real tragedy for everybody involved’

One fertility expert said his heart “really goes out to the families affected by this situation.”

“It’s a real tragedy for everybody involved,” according to the medical director of a fertility clinic in Toronto who is not involved in the legal case.

The science of storing eggs, embryos and sperm is based on mechanical processes that are designed with a series of alarms, but there is always a small chance the machines will malfunction, he said.

“Nothing is ever 100 per cent fail-safe. They are prone to failure. Any organization or community simply needs to do our best to have checks and balances to … minimize the chances of this ever occurring,” he said, adding that human oversight is essential.

Two U.S. clinics, one in San Francisco and the other in Cleveland, Ohio, also reported accidental human embryo destruction in March, linked to storage tank malfunctions.

There are estimates that more than 4,000 eggs and embryos were lost in the two locations. In the U.S., couples are charged about $600 a year to store their reproductive material.

The U.S. cases served as a heads-up to Canadian clinics, he said.

“Ever since those stories came out in the U.S. there was an opportunity for organizations to look internally to make sure that we are not just relying on bells and whistles, but also to make sure there are … 24-hour alarms systems, daily checks, external reviewers to make sure we are accountable to the standards we like to be held to,” he said.

On its website, ReproMed boasts “high pregnancy success rates and international renowned research achievements.”

The clinic says it serves patients from across Canada, as well as those from other parts of North America, South America and Europe.

A spokesperson for Chart Industries told CTV News that the company does not comment on any pending litigation.

There are no mandatory regulatory agencies for fertility clinics, but many of them voluntarily choose to use Accreditation Canada.

With a report from CTV News medical affairs specialist Avis Favaro and producer Elizabeth St. Philip