Thousands of people who were infected with hepatitis C between 1986 and 1990 are to receive millions of dollars more in compensation after historic court rulings by judges from Ontario, British Columbia and Quebec.
Many of the victims have said their original payouts were inadequate, and a class-action lawsuit was launched to get access to a surplus in the settlement fund. The three judges heard the case in joint proceedings in Toronto, and ruled last week that about $175-million of the $205-million surplus should go to about 11,000 people and their families. The government argued the money should be paid into federal coffers.
The court accepted seven of nine recommendations from a joint committee representing tainted-blood victims and their families, known as class members in the settlement. The recommendations outlined where the surplus funds should be directed, including money for those who made late claims and dependents of those who died, and for increased payments to more than 5,000 victims and family members.
“The additional compensation will make a real difference in their lives,” the committee’s lawyers said in a statement.
The ruling has no impact on at least 300 people who were infected with HCV before 1986 and after 1990, who were told they are eligible for compensation through a separate settlement, but have not been paid because their own fund ran dry.
Although the court did not have authority to top up the other fund, federal lawyers could have told the judges that, if returned to the government, the money would be re-directed to the empty fund for those who have not received full compensation. It is estimated $60-million is required to pay the remaining claimants.
But the government was unwilling to make such a commitment – promising only to invest it in initiatives that would help those fighting the disease.
“This was a missed opportunity,” said David Klein, the lawyer who negotiated the settlement for those who were infected before 1986 and after 1990.
“It doesn’t matter to my clients where the money comes from,” he added. “It can come from general government revenues. The important thing is the people who were promised compensation receive the compensation that was promised to them.”
Instead of returning it to the government, the judges chose to leave about $40-million of the surplus untouched.
All three judges wrote separate decisions, but agreed on the recommendations.
“Canada’s submission that the money would be used for the benefit of all Canadians is not persuasive,” Ontario Superior Court Justice Paul Perell wrote in his Aug. 15 decision. “… One can hope [all Canadians] would at least share the empathy if not the liability or the responsibility to compensate the suffering Class Members, all of whom are innocent fellow citizens grievously injured from tainted blood.”
A spokesman for the office of Health Minister Jane Philpott said the government will review the decisions, but would not answer questions about topping up the fund for the people who have not yet been fully compensated.
“The Government of Canada recognizes the tremendous hardship that infected individuals and families have gone through,” Andrew MacKendrick said in an e-mail.
Both sides of the case have a maximum of 30 days to appeal the rulings.