The Federal Court of Appeal has approved an application to treat a legal review of a federal program offering compensation to Thalidomide victims as a class proceeding.
The ruling overturns an 2017 decision from the Federal Court, in which the judge erred in law, according to an appeal court justice.
“It obviously feels really good to be vindicated in what we initially thought from the outset, that this is something that should be done on a class-wide basis,” said David Rosenfeld, lawyer for Bruce Wenham, who initiated the legal review.
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Wenham has deformities in his arms that he has claimed stem from his mother’s use of Thalidomide.
That’s a drug that moms took to battle nausea and morning sickness in the 1950s and ’60s.
Mothers ingested Thalidomide before it was discovered that the drug could cause deformities in kids.
READ MORE: Judge rejects alleged Thalidomide survivors’ bid to launch class action suit against feds
The federal government in 1990 set up the Extraordinary Assistance Plan for Thalidomide Victims, an initiative through which qualified survivors could collect compensation in lump sum payments.
The compensation offered under that plan was widely considered inadequate, however, and it was revised to become the Thalidomide Survivors Contribution Program (TSCP) in 2015.
Through the TSCP, survivors could receive one-time payments of $125,000 and an annual lifetime pension of $25,000 to $100,000, with the money depending on the degree of a person’s disability.
Wenham applied for judicial review of the TSCP’s requirements after the federal government determined that it wasn’t enough for him to provide affidavits — including one from a geneticist who provided expert opinion on the link between his deformities and Thalidomide.
This geneticist, however, didn’t have direct knowledge, and his affidavit therefore couldn’t satisfy the government’s requirements for documentary proof.
The federal government wanted documents such as information that showed a settlement with a drug company, a listing on an existing registry of Thalidomide survivors and proof that the drug had been ingested during the first trimester of pregnancy.
This proof could manifest as a doctor’s prescription, medical or hospital records, hospital birth records, or an affidavit from someone who had direct knowledge, such as a doctor who prescribed the drug.
READ MORE: Requirements for getting Thalidomide compensation are nearly ‘impossible to meet’: lawsuit
“For many people, that’s 60 years ago and very difficult to come by,” Rosenfeld told Global News.
“So we believe that is unfair for everybody.”
Nearly 170 other people were left without compensation because they couldn’t meet the government’s requirements, the court decision said.
“Many people provided other evidence, such as doctors’ opinions, expert evidence, witness evidence, and none of that was allowed to be considered.
“So we are going to be asking the court to say that those evidentiary restrictions were unfair for all 168 people who got rejected on that basis.”
The case
Wenham applied for judicial review alleging that the requirements of the compensation program are “unreasonable in the administrative law sense.”
The Federal Court denied his application to treat the case as a class action, ruling in July 2017 that it didn’t meet any of five requirements needed to be certified as one.
Wenham said that the Federal Court’s decision erred in law.
The Federal Court of Appeal agreed — it determined that Wenham met “all five requirements,” and that his application should have been certified as a class proceeding.
One of those requirements is that a pleading disclose a “reasonable cause of action.”
In short, that means a court action must be able to survive a “motion to strike” in order to be certified.
The Federal Court, however, tested whether “a reasonable case exists” and whether Wenham’s application had a “reasonable chance of success.”
“Wagering on whether the cause of action will cross the finish line is no part of the court’s task,” appellate Justice David Stratas wrote.
The next step in this case is a judicial review hearing where Wenham’s side will present arguments about why the program’s criteria should be set aside.
Rosenfeld said he doesn’t yet know the timing of such a hearing.
The respondent, in this case the Attorney General of Canada, can still apply for leave to appeal the latest decision to the Supreme Court of Canada.
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