Thalidomide survivors who were shut out of federal benefits now have a judge-approved settlement of their class-action lawsuit against the Canadian government.
The settlement does not guarantee that the 156 survivors who were part of the lawsuit will receive the benefits, but it does provide a fair process, Federal Court Justice Michael Phelan said in a ruling on Friday.
“It’s wonderful, wonderful news," said Bruce Wenham, the representative plaintiff in the class action. "It seems to have gone on forever. It’s fantastic to be validated after all this time.”
Canada owes a debt to thalidomide victims because, unlike the United States, its health regulators approved the drug in 1961. It was billed as a “wonder” drug for morning sickness, but caused devastating health effects in babies, such as shortened or missing limbs.
A campaign led by the Thalidomide Survivors Taskforce and a series of stories in The Globe and Mail in 2014 revealed how those affected were suffering from deteriorating health as they aged, prompting the former Harper government to announce a compensation program in 2015.
But the program shut out many survivors who said their mothers took thalidomide but lacked the records required by the government.
The benefits program, updated by the government last year, provides for a lump sum of $250,000, plus tax-free payments for life, based on an individual’s level of disability, and payments for extraordinary medical expenses.
David Rosenfeld, part of a legal team that represented the group, said that if 120 of the survivors qualify, and receive the lump sum and payments of $50,000 a year for 10 years, the cost would be $90-million.
Health Canada is “committed to supporting Canadian thalidomide survivors,” but would not comment further while it reviewed the decision, spokesman Eric Morrissette said.
Mr. Wenham went to Federal Court in 2016, asking it to review a government refusal to grant him benefits (under a previous program). He converted his case to a class action when he learned in the early stages of the court process that 167 others were in his position, he told The Globe and Mail. (Twelve have since dropped out.)
Describing Mr. Wenham’s case, Justice Phelan said his mother was prescribed thalidomide when she became pregnant in 1957 to ease her morning sickness. He was born with no left arm, and a right arm that is six inches long, and with just two fingers, the 63-year-old Mr. Wenham, who lives in Toronto, said.
The family relocated to Britain in 1959 and he was not registered as a thalidomide survivor in either country. He returned to Canada in the early 1990s, and his application for benefits was denied because of an absence of records related to his mother’s thalidomide use, Justice Phelan said. When the government launched the new program in 2015, he applied.
But the criteria were strict: He needed copies of a doctor’s prescription, hospital birth records or pharmacy records, or a sworn statement from the prescribing physician.
Mr. Wenham provided instead affidavits from a geneticist and a family physician on the link between his condition and exposure to thalidomide during his mother’s pregnancy, and from a brother confirming he was the only one in the family born with disabilities. The evidence was rejected. The government set something like a criminal-law standard – certitude “beyond a reasonable doubt,” Justice Phelan said.
The settlement provides fairness safeguards, such as lowering the standard of proof to “balance of probabilities,” an opportunity to provide more information, and to have an oral hearing if denied benefits. If they die before being declared eligible, their estates would receive the lump-sum payment.
Mr. Wenham called the original criteria “impossible to meet. ... ‘could you phone up your doctor from 50 years ago and get them to confirm that your mother ingested [thalidomide].' Which we thought was quite ridiculous.”
Mr. Rosenfeld said some class members had affidavits from their mothers swearing to having used thalidomide, and were rejected.
“Having lived your life with these kind of malformations and then have a program dangled in your face – with very generous support – but then taken away on this basis, it’s a rejection of what you’ve understood your entire life. It’s quite personal to them,” he said.
Only those whose mothers took thalidomide between late in 1957 and late in 1967 are eligible, under the settlement. Forty-two members of the class were born before or after, some missing out by mere weeks. Canada said it would pay for only victims of “authorized use” of thalidomide, but Justice Phelan said he did not understand why those who were fetuses at the time should be held responsible.
“Canada’s explanation for its rigid approach, while coldly scientific, lacked the compassion for the individual which the government espoused,” he wrote.
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