Individual’s application for financial assistance through Thalidomide Survivors Contribution Program was rejected because he did not meet the eligibility criteria set by the Program. His application for judicial review, wherein he essentially argued the eligibility criteria was unfair and an exception should be made, was dismissed.

Fontaine v. Canada (Attorney General), [2017] F.C.J. No. 439, 2017 FC 431, Federal Court, May 2, 2017, C.Y. Strickland J.

The applicant applied to the administrator of the federal Thalidomide Survivors Contribution Program for financial assistance, claiming his mother had taken thalidomide while she was pregnant with him in 1958 to 1959. The program provided ex gratia payments to victims of thalidomide, which was distributed to pregnant women in Canada from 1959 to 1962 and caused damage to infants’ limbs and organs. In order to qualify for the program, applicants needed to satisfy one of three eligibility criteria, including (1) verifiable information of receipt of a settlement from the drug company, (2) documentary proof of the maternal use of thalidomide in Canada during the first trimester of pregnancy, or (3) listing on an existing government registry of thalidomide victims.

The applicant did not meet any of the criteria. He said he was unable to obtain documentary proof of his mother’s use of thalidomide as his mother was deceased and her doctor was probably deceased or very elderly. The applicant was waiting to see an orthopedic surgeon who he expected could write a report concluding it is more probable than not that the applicant’s defects are the result of thalidomide. The administrator told the applicant that such an opinion, if the applicant could obtain it, would not satisfy any of the eligibility criteria. The administrator rejected the applicant’s application due to his ineligibility.

The applicant sought judicial review of the administrator’s decision, claiming the eligibility criteria was unreasonable. The Court concluded the reasonableness of the program’s eligibility criteria is not within the proper scope of a judicial review of the administrator’s decision. The Court was satisfied that the Crown’s decision to make ex gratia payments, including its stipulation as to who will be eligible to receive those payments, derives from and is an exercise of the Crown’s prerogative power. As such, it was not reviewable by the Court. The Court also noted it did not have jurisdiction to assess the reasonableness of the criteria because the program constitutes a policy decision by the Minister and is therefore not subject to judicial review. The application for judicial review was dismissed.