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Thalidomide Survivors Contribution Program Class Proceeding
Koskie Minsky LLP has initiated a class proceeding against the Attorney General of Canada on behalf of all individuals whose applications to the Thalidomide Survivors Contribution Program (“TSCP”) were rejected on the basis of failing to provide the required proof of eligibility.
Thalidomide is an immunomodulatory drug that was prescribed to pregnant women across the world in the late 1950s and early 1960s to combat nausea and morning sickness. The use of Thalidomide in the first trimester of pregnancy was directly linked to children being born with debilitating malformities.
In 2015, Health Canada announced that new funds were to be made available for Canadian Thalidomide survivors through the TSCP. The TSCP requires that applicants meet a very specific criteria to receive recognition and compensation, which has resulted in the rejection of many self-identified Canadian Thalidomide victims. It is alleged that the TSCP eligibility requirements effectively mean that previously unidentified Thalidomide survivors could only be eligible if they have prescription records from 60 years ago or an affidavit from the prescribing doctor, who given the passage of time is likely deceased.
This class proceeding alleges that the establishment and/or application of the TSCP evidentiary criteria and/or documentary proof requirements are unlawful as they are effectively impossible to meet.
This case has now been certified as a class proceeding. The court has approved a notice of certification, which among other things, explains what the class proceeding is about and how a person can take steps if they do not want to be part of the class proceeding. To read the Thalidomide Survivors Contribution Program Class Application FAQ, please click here.
If you are a Thalidomide survivor whose application to the TSCP has been rejected, please contact us at 1-866-474-1741 or email us at thalidomideclassaction@kmlaw.ca.
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Latest Developments
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September 3, 2024
CORRECTED
We were advised by the Attorney General for Canada that the Government of Canada’s Office of Audit and Evaluation (OAE) at Health Canada will be conducting an evaluation of the Canadian Thalidomide Survivors Support Program (CTSSP) for the period from April 2019 to March 2024.
We were advised that the OAE may be contacting confirmed Thalidomide Survivors pursuant to the CTSSP to conduct interviews. We were advised that the interviews are voluntary and confidential.
We have been advised to expect such evaluation to take place after September 1, 2024.
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May 6, 2024
When the Canadian Thalidomide Survivors Support Program (“CTSSP”) was established in April 2019, it restricted eligibility only to those who were born within the period December 3, 1957, to December 21, 1967. That resulted in a number of class members who were born outside that period being excluded from consideration for the benefits provided by the CTSSP.
On April 29, 2024, in a case styled Richard v Canada, the Federal Court determined that the date restrictions imposed on the CTSSP were unreasonable and set them aside. A copy of the decision can be found here. At this time, we have no information to suggest that Canada has appealed this decision.
As a result, pursuant to this decision, those who were born before December 3, 1957, or after December 21, 1967, are no longer automatically excluded from consideration for benefits under the CTSSP. We strongly encourage those people who were born before December 3, 1957, or after December 21, 1967, to submit their applications to the CTSSP as soon as possible and, in any event, before June 3, 2024, which is the deadline to submit applications to the CTSSP.
Information about the application process can be found on the CTSSP website via the following link: https://tsspcanada.ca/.
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December 18, 2023
We are writing to encourage class members who have not yet submitted applications under the Canadian Thalidomide Survivors Support Program (CTSSP) to submit an application, and to do so as soon as possible given the upcoming June 3, 2024 deadline for submitting applications. Information about the application process can be found on the CTSSP website via the following link: https://tsspcanada.ca/.
We also invite Class members who received a “Probable” finding at Step 2 of the application process, but were rejected at Step 3 of the application process to reach out to us so we may determine whether we are able to assist you in seeking reconsideration of your Step-3 application.
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August 15, 2022
Agreement on the use of the Algorithm result at Step 2 of the CTSSP
We are pleased to report that we have finalized an agreement with Canada that provides that all applications that obtained any result from the algorithm employed at Step 2 of the CTSSP application process will now proceed to be reviewed by the multi-disciplinary committee (MDC) at Step 3 of that process. This includes all applicants who previously had their application to the CTSSP rejected at Step 2 based on failing to receive a “probable” result from the algorithm.
Background
Since its approval, Class Counsel and Mr. Wenham have been fighting for the Class to enforce the terms of Settlement in this class proceeding – in particular, in relation to providing reasons for the results reached by the algorithm at Step 2 of the CTSSP application process and the standard (i.e. level of probability) used by that algorithm.
In May 2021, Class Counsel and Mr. Wenham brought a motion for a declaration that Canada (through the CTSSP Administrator) was in breach of the Settlement Agreement in this class proceeding for failing to provide Class members with adequate reasons when they are denied at Step 2 of the CTSSP application process for failing to meet the “probable” standard under the valiDATE algorithm. The motion was heard in May 2021 and was ultimately dismissed by the Federal Court. The motion judge effectively suggested that each class member would have to raise this issue in their own individual judicial review of the rejection of their application to the CTSSP.
We disagreed with this decision and, in September 2021, Mr. Wenham and Class Counsel appealed the motion judge’s decision. Around the same time, Class Counsel also filed a separate individual judicial review application on behalf of Mr. Michel O’Neil challenging the CTSSP Administrator’s failure to provide reasons in denying his application at Step 2. The application for judicial review also challenged the CTSSP Administrator’s interpretation of the Order-in-Council establishing the CTSSP on the basis that it was unreasonable for the CTSSP Administrator to deny applications solely on the basis of the algorithm result. A similar application for judicial review was also brought on behalf of Mr. Petkau, another CTSSP applicant.
Both the appeal of the motion judge’s decision and the individual judicial reviews were part of a strategy to address the algorithm’s use in the CTSSP and to ensure that it was not used as the only factor and the only basis for denying Class members applications to the CTSSP.
Agreement on use of the algorithm at Step 2
Ultimately in June 2022, the Attorney General of Canada and Mr. Wenham, Mr. O’Neil and Mr. Petkau reached an agreement to resolve the issues raised in Mr. Wenham’s appeal of his motion about the reasons provided at Step 2 as well as the two applications for judicial review about the use of the algorithm in the CTSSP. As part of the agreement, the parties agreed to have the Federal Court issue an Order that would direct the CTSSP Administrator to interpret the Order-in-Council establishing the CTSSP program as allowing the CTSSP Administrator to refer applicants with an “unlikely” or “uncertain” result from the algorithm utilized at Step 2 to the MDC appointed to review applications under step 3. As such, applicants who did not receive a “probable” result from the algorithm may now still have their applications referred to the MDC at Step 3 of the CTSSP application process.
On August 9, 2022, the Federal Court issued the Orders directing the CTSSP Administrator as described above. Copies of the Orders can be found on Class Counsel’s website.
Class Counsel and Mr. Wenham are very pleased with this result and trust that you are as well.
Next Steps
As a result of the settlement, Class Members whose applications were previously denied at Step 2 will be re-assessed by the CTSSP Administrator in accordance with the directions provided in the issued Orders and the CTSSP will not be denying applications simply because Class Members do not obtain a “probable result” from the valiDATE algorithm. We understand that the CTSSP Administrator will be in touch with impacted applicants in that regard. You are welcome to follow up with the CTSSP Administrator in due course.
Please note that the agreement reached only applies to Step 2 of the CTSSP process. Class Members will still have to pass Step 3 of the CTSSP process.
Class Counsel are not seeking any further fees from the Class for these efforts above that which the Federal Court awarded by Order of May 8, 2020.
For Step 3 Applicants who have been denied
Finally, further to our previous email, we would like to remind class members whose applications have been rejected at Step 3 of the Application process to contact us if you would like our assistance with a reconsideration/oral hearing through the CTSSP or a potential judicial review.
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July 21, 2022
Class Counsel is aware that some class members that have proceeded to Step 3 of the CTSSP application process have been unsuccessful in their applications. If you have been denied at Step 3 of the CTSSP application process, we invite you to provide us with your Step 3 determination letters so Class Counsel may review it and assist you, if possible.
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May 19, 2022
On May 5, 2022, Class Counsel wrote to the CTSSP to raise concerns regarding the delay in the review and recommendations by the multi-disciplinary committee of Class Member applications at Step 3 of the CTSSP. In response, the CTSSP Administrator advised that it has received all of the MDC’s recommendations, but for two that pertain to the TSCP Class Members. The CTSSP Administrator indicated that it is expecting to finalize and distribute decision letters for whom they have received a recommendation within the next 6-8 weeks.
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January 5, 2022
In June 2021, the Federal Court dismissed the Applicant’s motion alleging that the CTSSP Administrator and Canada breached the Settlement Agreement by failing to provide class members with reasons when they are denied at Step 2 of the CTSSP application process.
The Applicant has filed a Notice of Appeal in the Federal Court of Appeal to appeal of the Federal Court’s decision dismissing the Applicant’s motion.
A copy of the Federal Court decision and the Notice of Appeal can be found in the Documents Tab.
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June 22, 2021
A settlement between the Federal Government of Canada (“Canada”) and Bruce Wenham of Toronto, Ontario (the “Representative Applicant”) has been approved by the Federal Court and is now final.
Please click here to view the Notice and click here to view the Revocation Form.
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June 10, 2021
The Supreme Court of Canada today dismissed the application brought by four class members for leave to appeal the Federal Court of Appeal’s decision denying leave to appeal the settlement approval. As all appeal periods under the settlement agreement have now passed, the settlement is now final and implementation of the settlement will begin.
Notice of the settlement approval will be provided in accordance with the settlement order issued by the Federal Court on May 8, 2020. A copy of that order can be found in the “Documents” tab of this page under “Settlement Approval Documents”.
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May 25, 2021
The Plaintiff’s motion regarding breach of the Settlement Agreement will be heard by the Federal Court on Friday, June 4, 2021. The hearing will begin at 9:30 a.m. E.S.T via video-conference. Please make sure to check back before June 4, as the motion date/time can be subject to change.
The hearing is open to the public. However, the Federal Court requires individuals who wish to attend the hearing to write to HEARINGS-AUDIENCES@FCT-CF.CA, at least 48 hours before the hearing to register and obtain a link to the virtual hearing.
For further information, please see the Federal Court’s General Policy Statement re Virtual Hearings and User Guide for the Public and Media.
All documents in support of this motion will posted in the Documents section of this page on June 2, 2021.
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May 7, 2021
The Plaintiff’s motion regarding breach of the Settlement Agreement will be heard by the Federal Court on June 4, 2021.
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April 7, 2021
The Plaintiff has filed a motion alleging that the CTSSP Administrator and Canada are breaching the Settlement Agreement by failing to provide class members with reasons when they are denied at Step 2 of the CTSSP application process for failing to meet the “probable” standard under the valiDATE algorithm. Class members denied at Step 2 are receiving a letter that simply notes their score on the valiDATE algorithm with no explanation of what the “probable” standard means or how the algorithm weighs relevant factors for each CTSSP applicant. The motion also seeks certain information about the status of class members’ CTSSP applications so that Class Counsel can properly supervise the implementation of the Settlement Agreement and the court’s order on Class Counsel fees.
We will provide a further update when the parties’ motion records are complete.
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January 13, 2021
The class members seeking leave to appeal the settlement approval decision were denied leave by the Federal Court of Appeal in November 2020. A copy of the Federal Court of Appeal’s decision can be found here: http://canlii.ca/t/jbdk7.
However, one class member has now filed a further application for leave to appeal this dismissal to the Supreme Court of Canada. This means that implementation of the Settlement approved in May 2020 remains on hold for all class members.
We will provide a further update as this leave to appeal process progresses.
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November 3, 2020
The Federal Court of Appeal refused to grant leave to proceed with the proposed appeal of the settlement agreement initiated by four class members. A copy of the decision of the court can be found here.
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October 5, 2020
As per our previous update of August 4, 2020, as a result of an appeal initiated by four class members, the implementation of the Settlement approved in May has been delayed. The class members must be granted leave by the Federal Court of Appeal to proceed with their appeals. That process to seek leave to appeal is progressing. At this time the parties have filed their motion materials (including written submissions) and await a decision by the Court. A decision is expected in the following weeks.
- The reply Memorandum of Fact and Law – Hebert et al (motion for leave to appeal) can be found here.
- The responding Memorandum of Fact and Law – Wenham (motion for leave to appeal) can be found here.
- The responding Memorandum of Fact and Law – AGC (motion for leave to appeal) can be found here.
- The moving party’s Memorandum of Fact and Law – Hebert et al (motion for leave to appeal) can be found here.
We will provide a further update when a decision has been rendered.
Until the proposed appeal by the four class members is resolved, the implementation of the terms of Settlement is on hold for all class members.
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August 4, 2020
As a result of an appeal initiated by four class members, the implementation of the Settlement approved in May will be delayed. The class members must be granted leave to appeal the settlement approval order. That process to seek leave to appeal and the potential hearing of an appeal, if leave were granted, could take months to resolve.
Until that appeal by four class members is resolved the terms of Settlement are on hold for all class members.
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May 8, 2020
The Federal Court approved the settlement of this class proceeding today. In addition, the Federal Court approved Class Counsel’s fee request (a maximum of 15% deduction on all payment to class members approved under the CTSSP up to a maximum of 10 years of annual payments and up to a total maximum of $1.85 million plus taxes and disbursements). The Applicant’s motion to have Canada defray some of the class’ fees by way of a cost order was unfortunately denied.
You can find copies of the orders and reasons for decision of the Federal Court here. The orders will become final after applicable appeal periods expire. Further information about the approval of the settlement will be disseminated at that time.
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February 28, 2020
On February 26 and 27, 2020, the Federal Court heard the motions for approval of the proposed Settlement Agreement, approval of Fees, and request for Costs. Justice Phelan reserved his decision. The decision will be posted here when it becomes available.
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February 20, 2020
Locations and Times for Settlement Hearing regarding the Thalidomide Survivors Contribution Program Class Proceeding
The Settlement Approval, Fee Approval and Costs Motions will be heard by the Federal Court next week, on Wednesday, February 26 and Thursday, February 27, 2020, beginning at 9:30 a.m. EST.
Class member submissions will likely be scheduled for the morning of February 26, 2020.
The locations and times where the hearing can be accessed are as follows:
Toronto Federal Court (in person)
9:30 EST
Courtroom 4C on 4th floor, 180 Queen St West, Toronto, ON M5V 3L6
Accessibility: Wheelchair ramp at front entranceVancouver Court Registry (via videoconference)
6:30am PST
701 West Georgia Street, Vancouver, BC V7Y 1B6
Accessibility: Wheelchair accessible
Further information on accessing the Registry outside of court hours may be made available at a later time, if necessary.Montreal Court Registry (via videoconference)
9:30 EST
30 McGill Street, Montréal, QC H2Y 3Z7
Accessibility: Wheelchair accessibleFredericton Court Registry (via videoconference)
10:30 AST
82 Westmorland Street, Suite 10, Fredericton, NB E3B 3L3
Accessibility: Ground floor; power-assisted doors at main entranceClass members attending at any of the above registries should arrive plenty of time in advance to go through the security screening process. Class members may advise security that they are observing the hearing of Wenham v. Canada, File T-1499-16.
The hearing will also be accessible through live video feed, at the link below:
ZOOM Video Link
https://cas-satj.zoom.us/j/766839959A copy of the Notice of Settlement Approval Hearing is available here.
More information and documents about the Settlement, including the Settlement Agreement, can be found at Class Counsel’s website: https://kmlaw.ca/cases/thalidomide-survivors-contribution-program-class-action/.
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December 18, 2019
Class Counsel’s request for fees is set out in the notice of motion found here.
More information on the work Class Counsel completed for the Class can be found here.
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December 5, 2019
The Federal Court of Canada has now approved notice to the class members of the terms of the proposed settlement between the parties and set a date for a hearing to determine whether to approve the proposed settlement.
The hearing to determine whether to approve the Settlement, class counsel’s request for fees and the applicant’s request for costs from Canada is to be heard on February 26 and 27, 2020.
A copy of the notice of the hearing for settlement approval is available here.
A copy of the final settlement agreement is available here.
A copy of the Participation Form is available here. To register your support or objection to the Settlement or class counsel’s fee request you must submit a Participation form by February 12, 2020 or attend at the hearing. More information is provided in the notice of the hearing for settlement approval.
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October 22, 2019
The Representative Applicant and the Federal Government have reached an agreement to resolve this class proceeding. Further details will be provided soon.
As a result, the hearing scheduled for October 23, 2019 will not be proceeding. Instead a hearing to determine whether the settlement is fair, reasonable and in the best interests of the class will be held. Further information about that hearing will be provided soon.
If they have not done so already, all class members should make an application to the Canadian Thalidomide Survivors Support Program: https://tsspcanada.ca/
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September 4, 2019
The judicial review hearing has now been scheduled by the Federal Court to be heard on October 23, 2019 in Toronto.
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June 17, 2019
A Dispute Resolution Conference was held today. The parties continue their discussions with a view to resolving the issues in dispute. In the interim, the parties await the court’s scheduling of the judicial review hearing.
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May 30, 2019
At a case management conference held today the Attorney General of Canada agreed to postpone the scheduling of its motion to dismiss the class proceeding until after the Dispute Resolution Conference scheduled for June 17, 2019. In addition, the parties reached an agreement to resolve the Applicant’s motion which sought further and better answers about the CTSSP and which was to be heard on June 5, 2019. Therefore there would be no motions heard on June 5, 2019.
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May 24, 2019
In its latest effort to seek to circumvent this class proceeding, Canada has filed a motion to dismiss this class proceeding on the basis of the existence of the CTSSP. This despite the lack of information provided on the adjudicative process of the CTSSP and despite the fact that the CTSSP has not started yet. Canada wants the motion heard within 12 days – on June 5, 2019. Canada did so despite the fact that it agreed to participate in a Dispute Resolution Conference (a judicial mediation) to be held on June 17, 2019.
It appears Canada wants to avoid a determination of whether the TSCP was fair or not and whether it should be required to make retroactive payments to class members who were unfairly rejected under the TSCP and who subsequently get approved. The Applicant will be strenuously opposing the motion and, in particular, the timing of the motion. A Case Management Conference has been scheduled for May 30 to address this motion.
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April 11, 2019
Yesterday the Government of Canada announced new details of the program sought to rectify the problems with the Thalidomide Survivors Contribution Program. The news release can be found here. The Order-in-council establishing the program can be found here.
Class counsel and the Representative Applicant are reviewing and considering the details announced. There are a number of details that are still unknown such as, how the administrator will make the decisions, what standard of proof will be applied, what the diagnostic algorithm for thalidomide embryopathy measures, and how and when the multi-disciplinary committee of medical and legal experts will order a genetic test or a medical assessment, among many other questions. It is also not clear when all this will happen, or whether the details are still to be determined by an administrator. We will be seeking more information about the program from the Attorney General of Canada.
Class counsel and the Representative Applicant continue to consider the announcement and any new information that might be provided to assess the impact on this proceeding.
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March 29, 2019
This case has now been certified as a class proceeding. The court has approved a notice of certification, which among other things, explains what the class proceeding is about and how a person can take steps if they do not want to be part of the class proceeding. To read the Thalidomide Survivors Contribution Program Class Application FAQ, please click here.
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March 5, 2019
The Dispute Resolution Conference scheduled for March 12, 2019 has now been adjourned by the Court to a date to be determined in April 2019. The Attorney General of Canada refuses to discuss the issues of eligibility and evidentiary requirements with the court-appointed representative of those rejected from the Thalidomide Survivors Contribution Plan before it announces details of the revised program for compensation for those persons. The Representative Applicant’s attempts to seek meaningful direct consultation with the Attorney General of Canada about the eligibility and evidentiary requirements on behalf of those rejected from the Thalidomide Survivors Contribution Plan have been rebuffed.
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February 26, 2019
The Dispute Resolution Conference will be held on March 12, 2019 with Justice McDonald.
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February 12, 2019
The federal government has agreed to meet with the Representative Applicant, who was appointed by the Federal Court of Appeal to represent all those who were rejected from the Thalidomide Survivors Contribution Program, in a Dispute Resolution Conference to attempt to reach a mutually acceptable resolution of the dispute about the eligibility and evidentiary requirement of the program. That Dispute Resolution Conference will occur in the coming weeks.
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November 2, 2018
The Federal Court of Appeal overturned the decision of the Federal Court denying certification. The class proceeding is certified.
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October 31, 2018
A decision of the Federal Court of Appeal on the appeal of the denial of certification is expected to be released by November 5, 2018.
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January 9, 2018
The hearing of the appeal of Justice McDonald’s decision not to certify this proceeding as a class proceeding was heard this day. The Federal Court of Appeal reserved its decision.
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November 27, 2017
The appeal of the motion for certification will be heard on January 9, 2018 at 9:30 a.m. at 180 Queen Street West, 7th Floor, Toronto.
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July 14, 2017
The applicant has filed an appeal of the motion for certification. The Notice of Appeal is available here.
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July 6, 2017
Justice McDonald denied certifying this application as a class proceeding. A copy of the decision is available here.
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May 9, 2017
The motion to determine whether this proceeding ought to proceed as a class proceeding on behalf of all those rejected by the TSCP was heard on May 9, 2017. The Honourable Madame Justice MacDonald reserved her decision, which is estimated to be rendered in the coming months.
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April 18, 2017
The motion to determine whether this proceeding ought to proceed as a class proceeding on behalf of all those rejected from the TSCP is now scheduled to be heard on May 9, 2017 in Toronto at the Federal Court by the Honourable Madame Justice MacDonald.
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September 3, 2024
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News Releases and Reports
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Documents
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FAQS
Frequently Asked Questions about Class Actions
What is a class action?
A class action is a lawsuit which provides a method for a large group of people with common claims to join together to advance one large claim. Class actions are a more efficient and cost-effective way for groups of people with common claims to gain access to the legal system and seek justice.
What does certification mean?
In order for an action to proceed as a class action, the court must determine whether it is appropriate for the case to be treated as a class action. Some of the factors the courts consider are the extent to which the claims of the class
members are common, and whether a class action is preferable to other methods (such as individual actions) of advancing the issues. The decision as to whether a class action should be certified takes place at a certification hearing and is decided by a judge. If certified, a representative plaintiff will advance the action on behalf of all of the class members.How do I know if I am a Class Member?
The certification order will always contain a description of who is a class member. We post the certification orders in our actions so that you can review them. You do not need to “sign up” to become involved in a class action. If you are included in the class description, you are automatically a class member who will be affected by the outcome of the class action unless you decide to “opt out”.
Are Class Members notified of the certification of the class proceeding?
Yes. After the claim has been certified, the court will authorize notice to be given to the members of the class.
Can I opt out of a class action and pursue independent legal action?
Yes. When a class action is certified, class members are always given an opportunity to opt out of the action. A deadline is imposed for opting out. If you do not opt out by the given deadline, class members will be bound by the outcome of the class action, whether it is successful or unsuccessful. If you opt out, you will not receive any benefit if the action is successful.
Will there be any cost to class members for legal fees?
Typically, class actions are handled on a contingency fee basis, which means that the class action lawyers will be paid only if the class action is successful at trial or settled. In that case, class counsel fees may be paid by the defendants or out of the settlement or judgment proceeds as approved by the court. In addition, the plaintiff may seek funding assistance from the Class Proceeding Fund which, if funding is granted, may provide funding for disbursements.
I still have questions…
Please feel to contact us by using the contact information on this site.
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Contacts
Toll Free Hotline: 1-866-474-1741
