Thalidomide Survivors rejected by Canada now allowed to sue as a class proceeding

TORONTO, Nov. 2, 2018 /CNW/ - In a decision released yesterday, the Federal Court of Appeal certified a class proceeding on behalf of forgotten Thalidomide Survivors who were rejected by the Thalidomide Survivors Contribution Program (TSCP), a Federal Government program designed to provide monetary support to the aging survivors of this terrible tragedy.

The TSCP was initiated in 2015.  At the time the Federal Government required previously unrecognized Thalidomide Survivors to submit medical records from the time of their births (some 60 years ago) to be entitled to the monetary support offered.   Many class members whose records were not available, destroyed or could not be found, submitted other evidence, such as doctors' opinions or statements from their parents, to provide proof that they are Thalidomide Survivors.  That additional evidence was not considered and those applicants were rejected from the program.

The class proceeding, initiated by Mr. Bruce Wenham, alleges that the eligibility criteria of the TSCP were unfair and should be changed to permit all evidence to be considered. 

Initially the Federal Court denied Mr. Wenham's motion to have the issue of the unfairness of the eligibility criteria determined for all those who were rejected by the program at the same time as a class instead of individually.  The Federal Court of Appeal reversed that decision noting "owing to legal errors, the order of the Federal Court cannot stand" and:

"Applying proper legal principles, including clear holdings on point from the Supreme Court, and making the order the Federal Court should have made, I find that Mr. Wenham has satisfied all five certification requirements and so I would grant his motion for certification and certify his application as a class proceeding."

Mr. Wenham was very pleased upon hearing of the decision:  "We are very happy. This has been a long time coming for me and the rest of the forgotten survivors who are all getting older.  The program was unfair and to get rejected and told we are not Thalidomide survivors because we don't have prescription records from 60 years ago is insulting and compounds what we have had to deal with all our lives." 

David Rosenfeld of Koskie Minsky LLP, the lawyer for Mr. Wenham and now the class, questions what the Federal Government will do in the face of this decision:  "The Federal Government has taken no steps to address the unfairness of this program.  They announced to great fanfare that they were going to amend the TSCP to make it more inclusive when they announced their 2018 Budget.  Since then there have been no changes announced and these forgotten survivors were left with no recourse until now.  If the Federal Government won't treat the Thalidomide Survivors fairly and with dignity, Mr. Wenham will ask the Federal Court to force them to."

SOURCE Koskie Minsky LLP