UBC and donors reach $6.2m settlement over destroyed sperm

COURT: Many men who stored samples had cancer

A proposed settlement has been reached between the University of B.C. and hundreds of sperm donors whose semen samples were inadvertently damaged or destroyed in a lab.

The $6.2-million settlement was reached by both sides in April after years of wrangling in B.C. courts.

Sandy Kovacs, lawyer for the donors, hailed the settlement.

“It provides fair compensation for men who have suffered the loss of ability to have children of their own,” Kovacs said Tuesday.

About 400 men, mostly cancer patients who wanted their sperm preserved for future procreation before undergoing radiation treatment, stored samples with the UBC Andrology Lab for a fee. In 2002, the freezer suffered a power interruption that damaged or destroyed the samples.

The long-running, class-action suit was first filed nearly 12 years ago, but was denied certification by the B.C. Supreme Court. The plaintiffs appealed and in 2011, the B.C. Court of Appeal overturned the decision and certified the suit.

According to court documents, UBC based its defence on a facility agreement signed by donors waiving UBC’s liability in the event of damage to the sperm because of equipment malfunction.

The case turns on whether sperm is considered property under a Canadian warehousing law, which doesn’t allow the warehouser to insert a clause in a deal exempting themselves from liability.

In 2013, the judge concluded that the lab was similar to a warehouse, storing goods for a fee, and that sperm is property and falls under the definition of goods under the Warehouse Receipt Act — a precedent-setting decision in Canada, Kovacs said.

UBC appealed, but the B.C. Court of Appeal upheld the decision in a ruling in January.

Kovacs believes that out of the 400, fewer than 200 will have viable claims. Some might have died or regained their fertility, he said. Others might not want to go through the claims process.

The amount each individual will be eligible for depends on the total number of claimants, as well as a variety of factors, including whether the members were in arrears or whether they can prove they have been impaired in their ability to have children.

The proposed settlement is subject to court approval. A hearing is scheduled in B.C. Supreme Court June 10. The settlement will also pay the plaintiff counsel’s fee of $1.86 million, plus disbursements.

In a statement, UBC spokeswoman Susan Danard said the university is pleased a mutually agreeable resolution has been reached: “The university recognizes this was an unfortunate incident and we empathize greatly with the men and their families involved in this case.”