Date: 20190328

Docket: T-1499-16

Citation: 2019 FC 383

Ottawa, Ontario, March 28, 2019

PRESENT:  The Honourable Madam Justice McDonald

PROPOSED CLASS PROCEEDING

ORDER AND REASONS

[1]  On November 1, 2018, the Federal Court of Appeal in Wenham v Canada (Attorney General), 2018 FCA 199, certified this as a class proceeding and appointed the Applicant, Bruce Wenham, as the representative of the following class: “all individuals whose applications to the Thalidomide Survivors Contribution Program were rejected on the basis of failing to provide the required proof of eligibility” (at para 66).

[2]  On this Motion, the Applicant seeks an order to disseminate notice of certification to the 168 class members who had claims denied under the 2015 Thalidomide Survivors Contribution Program (TCSP).  The Applicant also asks that a Dispute Resolution Conference (DRC) pursuant to Rule 386 be scheduled.

[3]  Following the Federal Court of Appeal decision certifying this as a class proceeding, on January 9, 2019, the Government announced that a new program, the Canadian Thalidomide Survivors Support Program (CTSSP), would be launched in the Spring of 2019.  This was announced without prior notice to the Applicant or Class counsel.  This program would presumably target the potential class members.

[4]  To date, no further details of the CTSSP have been announced.

[5]  The Respondent opposes the Applicant’s Motion and argues that until the details of the CTSSP program are announced, notice to the class should be postponed.  The Respondent filed an Affidavit from Cindy Moriarty who is an Executive Director at Health Canada with responsibilities for the TCSP.  In her Affidavit dated March 20, 2019, she states: “I expect the details of the new program to be available for release in April 2019.”

[6]  According to the Respondent, as an announcement on the new CTSSP program is imminent, service of notice of certification to the class members would cause confusion.  The Respondent therefore asks that the notice to the class be held off until after the details of the new program are announced.

[7]  The Applicant argues that notice to the class should not be delayed and any confusion that may result when the details of the CTSSP program are announced can be addressed in the information provided to class members.  The Applicant seeks an Order directing that notice of certification be disseminated immediately and that an opt-out period be set.

ANALYSIS

Notice of Certification

[8]  The Notice requirements are outlined in Rules 334.32(1) and (5) as follows:

[9]  Rule 334.21 of the Federal Courts Rules, SOR/98-106 states as follows regarding opting- out and exclusion:

[10]  The Supreme Court of Canada at paragraph 42 of Canada Post Corp v Lépine, 2009 SCC 16 noted the importance of the notice procedure in class proceedings as follows:

A class action takes place outside the framework of the traditional duel between a single plaintiff and a single defendant.  In many class proceedings, the representative acts on behalf of a very large class.  The decision that is made not only affects the representative and the defendants, but may also affect all claimants in the classes covered by the action. For this reason, adequate information is necessary to satisfy the requirement that individual rights be safeguarded in a class proceeding.  The notice procedure is indispensable in that it informs members about how the judgment authorizing the class action or certifying the class proceeding affects them, about the rights — in particular the possibility of opting out of the class action — they have under the judgment, and sometimes, as here, about a settlement in the case.

[11]  As stated in Lépine the notice procedure is indispensable to provide class members with adequate information so that they can fully understand how the class proceeding affects their rights and to consider the possibility of opting-out.

[12]  The Respondent argues that the parties will be in a better position to provide a more accurate notice to the class members when the details of the new program are released.  However, that position fails to acknowledge that this class proceeding is a judicial review of a refusal under the 2015 Thalidomide Survivors Contribution Program.  How the underlying judicial review application will be impacted by the, as yet undetailed, 2019 TCSSP program, is unknown.

[13]  Accordingly, in my view, the impending announcement of a “new program” is not a valid reason to withhold notice of the class proceeding which relates to the 2015 TSCP and which was certified in November 2018.  It is in the best interests of all concerned that notice of certification be issued without further delay.

[14]  Ensuring class members have sufficient time to consider any new program can be addressed by providing a lengthier opting-out period.

[15]  Furthermore, if the new program provides class members with an alternate remedy to the class proceedings, having received notice of the class proceedings in advance, the class members will then be in a position to make a fully informed decision.

[16]  The parties have largely agreed on the form and content of notice of certification.  The main point of contention was the timing of when the notice of certification ought to be disseminated.

[17]  Accordingly, pursuant to Rule 334.32, I am ordering that notice be provided to class members.  Where the parties disagree on the wording of the notice and the attached schedules, I have chosen the Applicant’s wording of these documents.

[18]  I have also decided that given the possibility that the new program will be announced while the notice to class members is being disseminated, it is appropriate to provide a lengthier opt-out period of 60 days rather than the 30 days proposed by the Applicant.

Dispute Resolution Conference

[19]  A DRC was initially scheduled for March 12, 2019, but it did not proceed as the Respondent was not in a position to discuss a resolution until the details of the TCSSP program are announced.

[20]  Although the Court is prepared to facilitate a DRC on short notice, until such time as the new program details are disclosed it is premature to reschedule a DRC.

ORDER in T-1499-16

THIS COURT ORDERS that:

1. Notice of certification substantially in the form attached as Schedule “A” together with the Frequently Asked Questions document substantially in the form attached as Schedule“B” shall be disseminated within fourteen (14) days of this Order as follows:

1. Delivered by Class Counsel by regular mail and email to the Class Members on the list of names and last known contact information as required to be provided by the Respondent to Class Counsel pursuant to the Order of this Court of

February 26, 2019;

2. Forwarded by email or regular mail to any person who requests it from the Respondent or Class Counsel;

3. Posted on Class Counsel’s website;

4. Posted on the Respondent’s website for the Thalidomide Survivors Contribution Program; and

5. Issued by press release via the CNW Group – Canadian Basic Network.

A Class Member may opt-out of the class proceeding by returning a signed Opt-Out Form, in substantially the same form as attached as Schedule “C”, postmarked or otherwise received within sixty (60) days of the date of this Order (the “Opt-Out Deadline”), to the Class Counsel.

3.  No Class Member may opt-out of the class proceeding after the Opt-Out Deadline, except with leave of the Court.

4.  Class Counsel shall serve on the Respondent and file with the Court, within fourteen (14) days after the expiry of the Opt-Out Deadline, an affidavit listing all persons who have opted-out of the class proceeding, if any.

5.  The cost of distributing notice of certification pursuant to this Order shall be paid by the Respondent.

6.  The request for a Dispute Resolution Conference is denied.

"Ann Marie McDonald"

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: