Thalidomide case can proceed as class action, court rules

TORONTO — A legal challenge against the Canadian government by alleged thalidomide survivors can proceed as a class action, the Federal Court of Appeal ruled on Thursday.

In addition to certifying the class action, the Appeal Court also appointed Bruce Wenham as representative plaintiff.

“Owing to legal errors, the order of the Federal Court cannot stand,” the Federal Court of Appeal said in overturning a ruling that denied certification.

Developed by the German pharmaceutical company Chemie Grunenthal, thalidomide was widely prescribed to pregnant women in the 1950s and 1960s. However, it turned out to cause severe fetal defects.

Among other things, babies were born with deformed limbs and other horrific impairments.

Ottawa set up a payment scheme in 1990 and revamped it in 2015 amid complaints that the cash payouts were not enough. The new plan gave victims $125,000 as a one-time payment, and an annual pension of up to $100,000.

To qualify, the government required documentary proof that included a listing on its registry of thalidomide victims, information showing settlement with the drug company, and proof the claimant’s mother had taken the drug during the first trimester of pregnancy.

Wenham, 60, and his family moved to England in 1959 and he was never registered in Canada as a thalidomide victim. His parents and the doctor who he says gave his mom the drug are dead and the relevant medical records no longer available.

As a result, Wenham, like 167 others, was unable to meet the documentation requirements. His application for benefits was denied in 1991 and again in August 2016.

He turned to the Federal Court for help, asking to pursue his judicial review of the denial as a class proceeding. The government opposed him.

In July last year, Justice Ann Marie McDonald rejected his request. Wenham, she said, had failed to meet the requirements for class-action certification.

Among other things, the judge found Wenham had shown no evidence of an identifiable class aggrieved in the same way. She also questioned whether he could adequately represent the proposed class.

In its unanimous decision on Thursday, the Federal Court of Appeal saw things differently. It said Wenham had satisfied all five criteria for a class action.

Noting the relatively low bar required for certification, the Federal Court of Appeal cited the “common sense position that there is no sense certifying a proceeding that is doomed to fail,” but said McDonald had misapplied the law.