A legal challenge against the Canadian government by alleged thalidomide survivors can proceed as a class action, the Federal Court of Appeal ruled on Thursday.
In addition to certifying the class action, the Appeal Court also appointed Bruce Wenham as representative plaintiff.
“Owing to legal errors, the order of the Federal Court cannot stand,” the Federal Court of Appeal said in overturning an earlier ruling that denied certification.
Developed by the German pharmaceutical company Chemie Grunenthal, thalidomide is still considered one of the worst failures of drug research. The government-approved anti-nausea and sleep drug was widely prescribed to pregnant women in the 1950s and 1960s. However, it turned out to cause severe fetal defects.
Among other things, babies were born with deformed limbs and other horrific impairments.
Ottawa set up a payment scheme in 1990 and revamped it in 2015 amid complaints that the cash payouts were not enough. The new plan gave victims $125,000 as a one-time payment, and an annual pension of up to $100,000.
To qualify, the government required documentary proof that included a listing on its registry of thalidomide victims, information showing settlement with the drug company, and proof the claimant’s mother had taken the drug during the first trimester of pregnancy.
Wenham, 60, and his family moved to England in 1959 and he was never registered in Canada as a thalidomide victim. His parents and the doctor who he says gave his mom the drug are now dead and the relevant medical records no longer available, he says.
As a result, Wenham, like 167 others, was unable to meet the documentation requirements. His application for benefits was denied in 1991 and again in August 2016.
He turned to the Federal Court for help, asking to pursue his judicial review of the denial as a class proceeding. The government opposed him.
In July last year, Justice Ann Marie McDonald rejected his request. Wenham, she said, had failed to meet the requirements for class-action certification.
Among other things, the judge found Wenham had shown no evidence of an identifiable class aggrieved in the same way. She also questioned whether he could adequately represent the proposed class.
“I am not satisfied that Mr. Wenham has established that his application has a reasonable chance of success,” McDonald wrote. “I am also not satisfied that a class proceeding is the preferable procedure for this application as it would appear to add elements of complexity and delay to an application that is otherwise ready for adjudication.”
In its unanimous decision on Thursday, the Federal Court of Appeal saw things differently. In fact, the upper court said, Wenham had satisfied all five criteria for a class action.
Noting the relatively low bar required for certification, the Federal Court of Appeal cited the “common sense position that there is no sense certifying a proceeding that is doomed to fail” but said McDonald had misapplied the law and Wenham’s case was obviously far from doomed.
“Wagering on whether the cause of action will cross the finish line is no part of the court’s task,” the Appeal Court said. “The test is whether a cause of action has been pleaded that is not plain and obvious to fail.”
Wenham was not immediately available to comment.