Judge rejects alleged thalidomide survivor’s bid to launch class action suit against feds – National


A group of Canadians claiming they are victims of thalidomide, the prescription drug blamed for certain birth defects, are saying the government has let them down, yet again, after a Federal Court judge shot down an attempt to launch a class-action lawsuit against Ottawa.

“I just feel like our government is letting us down, and down, and down again. It just doesn’t end,” said Michel O’Neil, one of seven Canadians who announced they’d sue the government after they failed to meet specific criteria and subsequently had their applications for compensation rejected.

“It’s a very sad day, and hopefully it gets better from here.”

READ MORE: ‘Err on the side of compassion,’ health minister urged in dealings with potential thalidomide survivors

Bruce Wenham, another alleged victim of the drug commonly prescribed in the late 1950s and early 1960s, has said he’ll never forget when his mother once told him she’d been prescribed and taken thalidomide while pregnant with him.

He filed the application for a class-action suit after the government told him and more than 150 other alleged victims born with limb deformities they didn’t meet the threshold for evidence proving their cases and were therefore ineligible for compensation. Unable to afford a legal fight with Ottawa alone, many of the alleged victims were hoping to take part in a class action.

WATCH: More people from the thalidomide survivor community speaks out

Late last week, Federal Court Justin Ann Marie McDonald rejected the claim.

“I am not satisfied that Mr. Wenham has established that his application has a reasonable chance of success,” she wrote in her July 6 decision.

Wenham’s lawyer, David Rosenfeld, said he is preparing an appeal of McDonald’s decision.

“I’m surprised and disappointed,” he said of the ruling. “I think there’s a lot of frustration from those who’ve been rejected from this program … Even people who had affidavits from their mothers saying, ‘I took this drug,’ those people were still rejected. It seems fundamentally unfair that this should happen.”

READ MORE: Requirements for getting thalidomide compensation are nearly ‘impossible to meet,’ lawsuit alleges

Eligibility criteria for compensation require alleged victims to either retrieve medical records from more than 60 years ago, obtain testimony from the attending doctor at that time or be on an existing list of victims.

In 2015, the Conservative government announced a compensation package for 92 Canadian survivors of thalidomide, which included a one-time payment of $125,000 and a yearly pension.

Left out of that announcement was the group of Canadians born with limb deformities similar to those associated with thalidomide, but without the medical records to prove their mothers took the drug while pregnant.

WATCH: Why Thalidomide survivors are launching a class-action lawsuit

Last month, a House of Commons committee wrote to Health Minister Jane Philpott urging the government to “err on the side of compassion” when deciding which applicants born with disabilities qualify for compensation under the Thalidomide Survivors Contribution Program.

In the letter, committee chair and Liberal MP Bill Casey wrote that he and his colleagues want to ensure all thalidomide survivors are recognized and compensated.

No physical exams for applicants

During the committee’s study of the federal compensation program, the former director of the program in the U.K. (where settlements were agreed to decades earlier than in Canada), described a process for determining eligibility that was much more open than Canada’s.

“Probably 50 per cent of the original cases in the 1968 and 1973 [U.K.] settlements, where thalidomide exposure was agreed a virtual certainty, had no documentary evidence,” said Dr. Martin Johnson, explaining the widespread and casual distribution of the drug.

“From the outset, it was known that this standard could not be insisted on in every case.”

The U.K. required documentary proof that an applicant’s mother took thalidomide, but only if the individual was born after the drug was taken off the shelves, if there was no record of the drug’s distribution in the area the claim arose, or if the individual had symptoms atypical of thalidomide.

Another witness at committee, lambasted the government for neglecting to include a physical exam among its criteria for compensation.

Dr. Ivor Edwards, a professor of medicine who convened and chaired a World Health Organization meeting of experts on thalidomide’s developmental effects on an embryo or fetus, told committee members he was stumped as to how the government could reject applicants without having them undergo physical exams.

© 2017 Global News, a division of Corus Entertainment Inc.

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