Tainted-blood vic­tims press Ot­tawa to shift com­pen­sa­tion funds

The Globe and Mail (BC Edition) - - NEWS - GLO­RIA GAL­LOWAY OT­TAWA

Cana­di­ans liv­ing with hep­ati­tis C they con­tracted through tainted blood trans­fu­sions re­ceived be­fore 1986 and af­ter 1990, and sur­vivors of those who have died, are ask­ing the fed­eral gov­ern­ment to trans­fer money into a fund that ran dry be­fore hun­dreds of vic­tims were prop­erly com­pen­sated.

A lawyer for what is known as the Pre-86/Post-90 class ac­tion has writ­ten to fed­eral lawyers ask­ing them to ob­tain the gov­ern­ment’s per­mis­sion to re­quest that $40-mil­lion of ex­cess cash sit­ting in a fund cre­ated for other vic­tims be di­rected to the empty fund so that those who were de­nied their full set­tle­ment can get the money they are owed.

“It’s al­ways looked to us like a no-brainer,” David Klein said.

“The so­lu­tion is right in front of ev­ery­one’s faces. It’s just a mat­ter of mak­ing the de­ci­sion.”

Two funds for the pre-1986 and post-1990 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 Depen­dents (PELD) fund, was in­tended to pay ex­tra amounts for lost in­come and also to com­pen­sate fam­i­lies 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 sev­eral hun­dred peo­ple – most of them wid­ows and or­phans – will re­ceive just a small frac­tion of what they are owed. Best es­ti­mates sug­gest it would take be­tween $60-mil­lion and $70-mil­lion to cover off the deficit.

Mean­while, a fund that was cre­ated to cover an orig­i­nal set­tle­ment with those in­fected with hep­ati­tis C be­tween 1986, when the United States be­gan test­ing do­nated blood, and 1990, when Canada be­gan screen­ing, had an un­al­lo­cated sur­plus of $200-mil­lion af­ter all of those vic­tims were com­pen­sated.

In 2016, when jus­tices from On­tario, Bri­tish Columbia and Que­bec were de­cid­ing what to do with that ex­cess, the gov­ern­ment lawyers asked that it be given back to Ot­tawa.

Mr. Klein coun­tered in court that that it should be re­turned to the gov­ern­ment on the un­der­stand­ing that re­quired amount would then be used to top up the empty fund. But the gov­ern­ment lawyers were un­will­ing to make such a com­mit­ment.

In the end, the judges di­rected that about $160-mil­lion of the sur­plus be di­vided among about 11,000 peo­ple who were in­fected be­tween 1986 and 1990, many of whom who had al­ready been fully com­pen­sated. That left about $40mil­lion un­al­lo­cated.

An­other hear­ing will take place on Wed­nes­day of next week to deal with is­sues re­lated to that sur­plus. Mr. Klein says in his let­ter that it will be an ideal time for Canada to ap­ply to trans­fer the money to the empty fund.

“The judges made it clear [in 2016] that us­ing that money to top up the short­fall in the Pre-86/ Post-90 fund would be viewed by them as bet­ter” than go­ing straight back into the fed­eral cof­fers, said Mr. Klein. “And the gov­ern­ment’s lawyers said they did not have those in­struc­tions. So we are ask­ing them to now get those in­struc­tions.”

The Globe and Mail asked the of­fice of Health Min­is­ter Ginette Petit­pas Taylor whether she would be will­ing to put the ex­cess from the 1986 to 1990 fund into the PELD fund but the re­sponse re­ceived sev­eral days later from Health Canada did not ad­dress the ques­tion.

Mike McCarthy, a he­mo­phil­iac from On­tario who con­tracted hep­ati­tis C in 1984 from tainted blood that was col­lected in a prison in Arkansas, is the lead plain­tiff in the Pre-86/Post-90 class ac­tion. Mr. McCarthy has re­ceived all the money he was owed but con­tin­ues to speak for those who have not.

When the gov­ern­ment de­ter­mined a decade ago how much would be put into the fund for those in­fected be­fore 1986 and af­ter 1990, it un­der­es­ti­mated the num­ber of peo­ple who were af­fected, he said. But now things should be put right, Mr. McCarthy said.

“It’s a mat­ter of fair­ness,” he said in an in­ter­view on Tues­day. “It doesn’t mat­ter when you got in­fected through the blood sys­tem. Peo­ple should be treated fairly be­cause they were harmed in such an egre­gious way.”

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