Judges who are deciding what should happen to excess cash in a fund for people who contracted hepatitis C through tainted blood are inviting the federal government to say it will use the money to compensate other victims who were left with nothing when a second fund ran dry.
But the government is unwilling to make such a commitment, saying only that, if the money is returned to federal coffers, an undetermined amount would be used to pay for initiatives that will help those who are fighting the disease.
"This is a new position and it's a step in the right direction, but it's lacking in detail and it doesn't address the problem faced by the people whose loved ones have passed away – people who were promised compensation, who qualified for that compensation and aren't receiving it," said David Klein, the lawyer who negotiated the settlement for Canadians who were infected before 1986 and after 1990.
The fund set up by the federal government to compensate those victims has been depleted and no payments have been made from it in roughly four years, even though the deadline for applying for that money was June 30, 2016, and hundreds of people have yet to be paid.
Meanwhile, the fund set up for those who were infected between 1986, when the United States began testing donated blood, and 1990, when Canada began screening, has an estimated excess of $240-million, and everyone in that class has now been compensated.
Lawyers for the federal Justice Department and those for the 1986-to-1990 victims were in court late last month to argue about whether the money remaining in that fund should go back to the government or be dispersed among those who were infected during those years.
At that hearing, Justice Christopher Hinkson of the B.C. Supreme Court said he and the other two judges – one from Ontario and one from Quebec – are aware that the second fund is empty and some hepatitis C victims have not been compensated. "Is that a use of the reallocation that the federal government has any appetite to address?" he asked Justice Department lawyer Paul Vickery.
Justice Paul Perell of the Ontario Superior Court followed up by asking Mr. Vickery whether he believed that the court had the jurisdiction to direct that the money go to the uncompensated victims if the government stepped forward in advance to say that is what it intended to do with it.
Mr. Vickery replied that the court has no power to order the government to transfer the money from one fund to the other. But he said that if the government said it wanted the money for that purpose, the judges could factor that into their decision. "Obviously," he told the judges, there has been no such commitment.
When asked if the government would be willing to tell the court that it will top up the depleted fund if it is given cash from the fund that has extra, Andrew MacKendrick, a spokesman for Health Minister Jane Philpott, said in an e-mail Monday: "The government of Canada is seeking a return of the surplus in order to pursue public health initiatives that would support hepatitis C sufferers in the face of effective, but extremely costly new drug therapies."
Mr. MacKendrick would not say that all of the money that is returned to the government would be used to help those infected with hepatitis C. Further commitments would have wait for the outcome of the court decision, he said. And he would not discuss how the government plans to help the families of those uncompensated victims who are now dead.
Mr. Klein said the government is trying to dodge the questions. "We have both judges inviting Canada to make a commitment to use the money," he said, "and in my view it would immeasurably increase the prospect of Canada receiving the surplus back if they made that commitment."
Janet Ashdown of West Vancouver was infected with HCV during surgery in 1985, but she did not learn until 1997 that she had contracted the disease. And it was not until October of last year, as she and her husband, Ian, were faced with paying $35,000 from their savings to cover the cost of a needed drug, that she was told there was a fund to compensate people in her situation.
"Now we learn that the billion-dollar fund established to pay compensation to the pre-1986 [and] post-1990 tainted-blood victims has long been exhausted. Even if our application is approved, it will not be paid," Mr. Ashdown said in a recent letter to his Liberal MP. "Your government is attempting to recoup the unused funds from the 1986-90 settlement while leaving the pre-1986 [and] post-1990 victims uncompensated. There is a word for this: Morally repugnant."
With a report from Leyland Cecco in Toronto