Dockets: T-1584-16
T-1712-16
Citation:
2017 FC 331
[ENGLISH
TRANSLATION]
Ottawa, Ontario, March 29, 2017
PRESENT: The Honourable Mr. Justice LeBlanc
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Docket: T-1584-16
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BETWEEN:
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CLAUDIE BRIAND
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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Docket: T-1712-16
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AND BETWEEN:
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DENIS RODRIGUE
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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ORDERS AND REASONS
[1]
In each of these two cases, the Court is dealing
with a motion to strike certain paragraphs (4 to 10 and 23) and certain exhibits
(A to F) or parts of exhibits (G, M and N) from an affidavit in each case
signed by a representative of Health Canada, Ms. Cindy Moriarty, as part
of applications for judicial review filed in each case against the decisions
made by an agent of the Minister of Health tasked with administering the most
recent compensation program implemented by the Government of Canada for the
victims of thalidomide.
[2]
Should they not obtain the desired strike, each
moving party is alternatively applying to be authorized to submit an item of
evidence in reply.
[3]
Given that the same questions are being asked
about the same affidavit, these motions were heard together on March 8,
2017. By the end of the hearing, the parties agreed to try to settle the
dispute that is the subject of each motion, and in order to accommodate the
parties, the Court agreed to suspend the proceedings. On March 21, 2017,
the parties informed the Court of their partial settlement of the issue, in
which the settlement was incorporated in a written agreement that was dated
that same day. Following this agreement, all that remained in dispute was the
presence of paragraphs 8 to 10 of Ms. Moriarty’s affidavit and, by
the same token, that of exhibits E and F, to which these paragraphs refer.
[4]
Given the identity of the issues raised in both
motions, it will be settled in one single judgment that will be filed in each
case. Before beginning the analysis of these issues, a short contextualization
is required. Applicant Claudie Briand was born in June 1959 with a certain
number of malformations that she attributes to the fact that her mother,
afflicted by severe nausea during pregnancy, allegedly took samples of
thalidomide while pregnant with her that were supposedly given to her by her
attending physician. The other applicant, Denis Rodrigue, was born on November 9,
1958, also with a certain number of malformations that he also attributed to
the fact that his mother allegedly took thalidomide samples while pregnant with
him on the advice of her attending physician.
[5]
Thalidomide was taken off the market in Canada
in 1962, but it had enough time to create many victims. Ms. Briand and Mr. Rodrigue
(collectively the “applicants”) feel that they
should be counted among these victims.
[6]
In 1990, the Government of Canada implemented
its first financial support program for thalidomide survivors. In 2015, new
measures were implemented with the creation of the Thalidomide Survivors
Contribution Program (the Program) and its administration was conferred
upon a third party, Crawford & Company (Canada) Inc. (Crawford). To be
eligible for the financial aid provided in the Program, the person making an
application must have:
a)
verifiable information of the receipt of a
settlement from the drug company;
b)
documentary proof (for example, medical or
pharmacy records) of the maternal use of thalidomide (brand names Kevadon or
Talimol) in Canada during the first trimester of pregnancy, or
c)
listing on an existing government registry of
thalidomide victims.
[7]
In February 2016, Ms. Briand filed an
application under the Program. Since she had not reached a settlement with a
drug company and was not listed on an existing government registry of
thalidomide victims, she must provide documentary proof of the maternal use of
thalidomide during the first trimester of pregnancy.
[8]
On August 24, 2016, Crawford denied Ms. Briand’s
financial support application on the grounds that the aforementioned
application did not satisfy any of the three Program criteria.
[9]
As for Mr. Rodrigue, he filed an application under
the Program in May 2016. He also had to provide documentary proof of the
maternal use of thalidomide in Canada during the first trimester of pregnancy.
Just like with Ms. Briand, his application was denied by Crawford.
[10]
In terms of the judicial review underlying their
respective motions, the applicants are addressing a series of allegations in
Crawford’s refusal to entitle them to the financial support set forth in the
Program. Essentially, they feel that Crawford incorrectly interpreted the
eligibility criteria set forth in the Program, imposed an unreasonable standard
of proof on them, did not give grounds for its decision, and did not consider,
but concluded as though it had, either the objectives of the Program or the
values underlying the Canadian Charter of Rights and Freedoms (the
Charter).
[11]
The applicants concluded that Crawford’s
decision was both unreasonable and contrary to the rules of procedural
fairness. In place of reparations, they have applied to the Court to declare
that they are eligible to receive the compensation set forth in the Program and
order the Minister of Health to pay them the compensation to which they feel
they are entitled. Alternatively, they are asking that the Crawford decision be
set aside and that the case be reopened so that it can be reviewed again in
compliance with the instructions that the Court deems appropriate.
[12]
The applicants initiated their respective
proceedings for judicial review on September 22, 2016, in Ms. Briand’s
case and on October 12, 2016 in Mr. Rodrigue’s case. The respondent served
Ms. Moriarty’s affidavit to Ms. Briand on December 19, 2016, and
to Mr. Rodrigue on January 12, 2017.
[13]
The applicants maintained that paragraphs 8
to 10 of Ms. Moriarty’s affidavit must be stricken because they have
information that Crawford did not have at the time of its decision. More
specifically, they maintain that those paragraphs imply, along with supporting
reports (exhibits E and F), that the symptoms associated with thalidomide
can be caused by other factors, thus suggesting, to their detriment, that they
may not be survivors of thalidomide.
[14]
It is clear that in matters of judicial review,
a hearing in a summary way according to section 18.4 of the Federal
Courts Act, RSC 1985, c. F-7, the Court will only exercise its discretion
to provide an advance admissibility ruling “where it is
clearly warranted” (Association of Universities and Colleges of
Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA
22 at para 11 [Access Copyright]).
[15]
Here, I feel that this is the case, especially
since the parties have done their part by trying to find common ground on what
should or should not be part of Ms. Moriarty’s affidavit. In other words,
I am of the opinion, as the Federal Court of Appeal teaches us in Access
Copyright, that there are grounds to decide on the issue of the eligibility
of paragraphs 8 to 10 of Ms. Moriarty’s affidavit in that the issue
is first and foremost one of law, is relatively clear cut, and its resolution
would allow the hearing to proceed in a timelier and more orderly fashion (Access
Copyright, at paras 12–13).
[16]
In principle, an application for judicial review
must be assessed on the basis of the case that was before the original
decision-maker. However, there are certain exceptions to this, one of which is
cited in the case at bar, in which as part of a judicial review, general
background that might assist the Court in understanding the issues relative to
the dispute can be submitted, even if the decision-maker does not have access to
it (Access Copyright, at para 20; Canada (Attorney General) v
Zone3-XXXVI Inc. 2016 FCA 242, at para 23).
[17]
The parties do not agree on the exact nature of
the information in the three paragraphs in dispute. The respondent is pleading
that those paragraphs only contain general background that might assist the Court
in understanding the issues on which it was called to decide on its merits and
that this background is all the more useful and justified in the case at bar in
light of the declaratory compensation and the nature of the mandamus sought by
the applicants and their claims that are based on the Charter.
[18]
The applicants correctly recall that by
examining their admissibility, the Court must ensure that the paragraphs in
dispute “[do] not go further and provide evidence
relevant to the merits of the matter decided by the administrative
decision-maker, invading the role of the latter as fact-finder and
merits-decider” (Access Copyright, at para 20). They add
that if these paragraphs are not stricken, that will likely constrain them from
providing evidence in reply, which will neither contribute to nor allow the
hearing to proceed in a timelier and more orderly fashion, contrary to the
sought-after goal of subsection 18.4(1) of the Federal Courts Act.
[19]
To be admissible, the background in paragraphs 8
to 10 of Ms. Moriarty’s affidavit must be likely to assist the Court in
understanding the issues on which it was called to decide on its merits,
without, moreover, providing evidence relevant to the merits of the matter. On
that basis, the line can sometimes be thin between what is admissible and what
is not. In certain respects, this is what we have in the case at bar, as
illustrated by, among other things, the compromises made by the parties as to
the portions of Ms. Moriarty’s affidavit that were identified in the
motion and on which they were able to agree.
[20]
Therefore, I feel that I should apply those
principles to paragraphs 8 to 10 while being as careful as possible not to
alter those compromises, even though I am not bound by them. Some continuity in
the approach seems desirable to me under the circumstances.
[21]
First, it makes sense to specify what the
substance of those three paragraphs is. Paragraph 8 summarily deals with
the initiatives taken by the Minister of Health in 1962 to understand and
attack the thalidomide problem. In particular, it makes mention of a federal-provincial
conference on the topic. As for paragraph 9, it deals with the Canada-wide
study that was conducted immediately after this federal-provincial conference.
It refers to a document prepared in 1963 by Health Canada (exhibit E),
which compiles all of the information that had been gathered on that problem up
to that point. Lastly, in paragraph 10, Ms. Moriarty indicated that
following a report from the World Health Organization published in 2014
(exhibit F), even today, it is difficult to distinguish the anomalies
caused by thalidomide from congenital anomalies or from other sources.
[22]
I am of the opinion that the information in
paragraph 8, which brings us back to 1962, is of a historical and
contextual nature and does not include evidence relevant to the merits of the
matter. It fits with the continuity of the preceding paragraphs, particularly
paragraph 7, in that it illustrates the first real efforts by the
governments of Canada to identify and understand a problem whose scale and
manifestations were just beginning to be grasped, and that years later
justified the creation of a national compensation program for the victims.
[23]
I would also retain paragraph 9 in that it
shows the study that was produced immediately after the federal-provincial
conference to which paragraph 8 refers. This study dates back to 1963 and,
once again, is in the interests of context. The fact that it mentions the
existence of malformations that may not be attributable to ingesting
thalidomide, moreover, does not add, in my view, to what is before the
decision-maker. In fact, in a document intended for the public titled “Thalidomide Survivors Contribution Program – Eligibility
FAQs” and which is part of Crawford’s project specifications, we can
read as follows:
Q.6 Individuals
may have similar impairments, injuries and/or conditions typically associated
with Thalidomide Survivors. Does this make then a Thalidomide Survivor?
Not necessarily.
Each year, a certain number of children are born with spontaneous or otherwise
unaccountable malformations similar to those caused by Thalidomide.
To be considered a
Canadian Thalidomide Survivor, individuals will need to satisfy one (1) of the
three (3) criteria set out in 1991. Confirmed Survivors have met the same
criteria, which are:
1. verifiable information of the receipt of a settlement from the
drug company;
2. documentary proof (e.g., medical or pharmacy records) of the
maternal use of Thalidomide (brand names Kevadon or Talimol) in Canada during
the first trimester of pregnancy; or
3. listing on an existing government registry of Thalidomide
victims.
[24]
It seems clear to me that this finding, in which
any malformation that has similarities to those generally associated with
thalidomide may not necessarily be attributable to the ingestion of
thalidomide, is one of the considerations that drive the Program, hence the
presence of eligibility criteria, including the one that requires proof of
maternal use of thalidomide in the first trimester of pregnancy. That
information was available to Crawford. There is no need to strike it.
[25]
However, exhibit E, to which paragraph 9
refers and which appears to be the integral contents of the study at issue in
that paragraph, does not appear necessary to me in order to assist the Court in
understanding the issues on which it was called to decide on its merits, which
for all useful purposes concern the reasonability of Crawford’s interpretation
and application of the Program’s eligibility criteria in connection with the
compensation requests filed by the applicants, particularly regarding the type
of evidence required to establish maternal use of thalidomide. Since it was not
available to Crawford and appears superfluous to me with a view to general
background, this exhibit will therefore be stricken. I also noted that in their
agreement from March 21, 2017, the parties agreed on the withdrawal of
exhibits (exhibits A and B), while the paragraphs that refer to them were
retained in whole or in part.
[26]
In my view, the same considerations apply to
paragraph 10 in that it aims to illustrate that what the 1963 study found
is still true today. The resulting finding, in which any malformation generally
associated with thalidomide is not necessarily attributable to the ingestion of
thalidomide, is not, as we have just seen, background that was not before the
decision-maker. Therefore, I do not see it as being useful to strike this
paragraph. However, for the same reasons as those cited regarding exhibit E,
I do not see the usefulness in producing the report to which this paragraph
refers. Therefore, this exhibit (exhibit F) will be stricken.
[27]
The applications submitted in both cases will
therefore be partially allowed. Under the circumstances, and given that the
parties were able to settle part of these applications through negotiation,
there will be no issue of costs. Each party will therefore need to assume their
own costs.
[28]
The respondent will have five (5) days
from the date on this order to serve an amended version of Ms. Moriarty’s
affidavit for each case, which is in accordance with the partial settlement
agreement that was reached in each case and with the conclusions of this order.
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