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Canadians who contracted hepatitis C from tainted blood before 1986 and after 1990 are appealing to the federal government to right what they say is a basic unfairness and provide them with compensation equal to that given to those infected between those years.

Fernando Morales/The Globe and Mail

Canadians who contracted hepatitis C from tainted blood before 1986 and after 1990 are appealing to the federal government to right what they say is a basic unfairness and provide them with compensation equal to that given to those infected between those years.

Although there is more than enough cash to cover an original settlement with those infected between 1986, when the United States began testing donated blood, and 1990, when Canada began screening, one of the funds established as part of a subsequent deal to compensate those who contracted hepatitis C outside of that time frame has run dry.

Without any direct legal recourse, and having failed in a bid to have a portion of an estimated $240-million that sits as excess in a fund for the 1986-1990 class transferred to top up the empty fund, the uncompensated victims are now reaching out to the government, through the court, to ask that everyone be treated equally.

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"The government made a commitment back in 2007 when the agreement was approved to pay the pre-post people the same amount as '86-'90 and they haven't lived up to that commitment," said David Klein, the lawyer who negotiated the settlement for those infected before 1986 and after 1990.

"When things don't work out and you can fix it, you should fix it," said Mr. Klein.

Two funds for the pre-'86 and post-'90 victims were created as part of a settlement reached with the Conservative government in 2007. One paid general compensation to those who were infected. The other, called the Past Economic Loss and Dependants (PELD) fund, was intended to pay extra amounts for lost income and also to compensate the spouses and children of those who died.

The general compensation fund still contains between $10-million and $15-million. But the PELD fund ran dry six years ago and many people who are entitled to the money have been left with nothing. Best estimates suggest it would take between $60-million and $70-million to pay all those who are still owed cash.

In an application for direction filed this week in the Supreme Court of British Columbia, the pre-1986 and post-1990 victims asked that the money in the general compensation fund be transferred to the PELD fund so that some payments can flow to at least a fraction of those who are waiting for redress.

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But the main objective of the court document was to remind the federal government that the 2007 settlement was written with the intention of providing all people infected with hepatitis C through tainted blood with roughly the same amount of compensation, regardless of when that infection occurred.

"The principle of parity with the '86-'90 settlement was cited by the courts as a fundamental feature of the pre-post settlement and a reason for approving it," it said.

Among the other documents filed with the court are letters written to MPs by people who have not been compensated. Although their names have been blacked out, their messages are clear.

"While financial compensation is cold comfort in the face of losing beloved family members," wrote one person to Terry Beech, the Liberal who represents Burnaby-North Seymour in B.C., "it does represent justice and therefore helps us all to heal from this senseless and devastating breach of our health care system."

Ottawa has so far been unmoved by the calls for parity between victims. When Health Minister Jane Philpott was asked Wednesday whether she would consider the request to top up the depleted fund, her spokesman said the government recognizes the hardship experienced by those who suffer from hepatitis C but the settlements were deemed fair and reasonable at the time they were signed.

Mike McCarthy, a former vice-president of the Canadian Hemophilia Society who was infected with hepatitis C by tainted-blood products, said his concern is that there is no equity.

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"Governments need to step in to ensure that all tainted blood victims are treated equally," said Mr. McCarthy. "I think Canadians would expect that there would be fairness here."

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