In Provencher v. Canada (Attorney General), 2025 FC 1273, released on July 17, Justice Simon Fothergill found that the expert committee that recommended the denial had unreasonably attributed the applicant’s malformations to a genetic disorder without first ordering that he undergo genetic testing.
“The MDC did not require Mr. Provencher to undergo genetic testing. In the absence of genetic testing, the MDC could not definitively confirm whether Mr. Provencher suffers from a genetic disorder,” the judge wrote.
In the late 1950s and early 1960s, thalidomide was provided off-label to treat pregnant women with morning sickness. In 1962, the drug was recalled after it was discovered that maternal ingestion of thalidomide in the first trimester of pregnancy was linked to miscarriages or birth defects known as thalidomide embryopathy.
In 2015, the Government of Canada implemented a program called the Thalidomide Survivors Contribution Program. The government subsequently launched the CTSSP after acknowledging that some survivors may have been excluded under the previous program.
The CTSSP provides confirmed survivors an ex gratia payment for $250,000 as well as up to $100,000 in annual payment based on the level of disability and access to the Extraordinary Medical Assistance Fund (EMAF).
The applicant, Léo Provencher, submitted an application to the CTSSP in 2020 and submitted evidence including an affidavit from his mother stating that she had consumed half of a thalidomide tablet during her pregnancy. The administrator of the CTSSP follows a three-step process to determine eligibility set out in a 2019 Order in Council concerning the program.
Under the process, the administrator first conducts a preliminary assessment of the likelihood that an applicant’s congenital malformations are the result of maternal ingestion of thalidomide in the first trimester of pregnancy.
If on a balance of probabilities the administrator finds it to be likely that the applicant’s congenital malformations are the result of maternal ingestion of thalidomide, the administrator assesses whether the applicant’s malformations are consistent with known patterns of thalidomide embryopathy.
This is done using a diagnostic algorithm for thalidomide embryopathy called valiDATE, which generates a report assessing the “likelihood” that an applicant’s malformations are the result of thalidomide embryopathy.
The administrator then refers the application to a multidisciplinary committee of medical and legal experts (MDC), which reviews the application, conducts any necessary tests or examinations, and provides the administrator with its recommendation on whether the person should be found eligible under the CTSSP.
In the case at bar, the MDC found that the applicant’s malformations were not as severe as those seen in thalidomide survivors, and were more consistent with other well-known conditions such as orofaciodigital syndrome or Hanhart syndrome.
The MDC also observed that it was unlikely a physician would have prescribed thalidomide to his mother two years after the drug was recalled and concluded that the applicant’s malformations were likely due to other causes.
The administrator found the applicant to be ineligible for the CTSSP for the reasons explained in the MDC’s recommendation.
The applicant sought reconsideration of the decision. However, the administrator still found Provencher ineligible for the CTSSP following reconsideration.
The applicant sought judicial review of the decision, arguing, among other things, that the decision was unreasonable as the administrator had failed to adequately explain its conclusion that his malformations do not fall within the spectrum of thalidomide embryopathy.
The court noted that the MDC had expressed the view that maternal ingestion of a thalidomide tablet early in pregnancy would have caused more severe malformations than those of the applicant, including abnormalities in his internal organs.
The MDC had acknowledged that the mild scoliosis in the applicant’s thoracic spine could be consistent with thalidomide embryopathy, but noted that scoliosis is also associated with other syndromes.
Justice Fothergill noted that the MDC had not required the applicant to undergo genetic testing or explain which of the applicant’s malformations are inconsistent with thalidomide embryopathy or why.
“Considering the significance of the Administrator’s decision to Mr. Provencher, the reasons do not exhibit the requisite degree of justification, transparency and intelligibility,” the judge wrote.
He further found that the MDC’s conclusion that the applicant’s malformations are inconsistent with thalidomide embryopathy was the basis for its decision not to require him to undergo genetic testing.
“Genetic testing would have provided important additional information to either confirm or refute the MDC’s hypothesis that Mr. Provencher’s malformations may be explained by orofaciodigital syndrome or Hanhart syndrome,” he wrote.
The court found that the MDC unreasonably attributed the applicant’s malformations to a genetic disorder without first exercising its authority to require him to undergo genetic testing.
Justice Fothergill held that the administrator’s adoption of the MDC’s recommendation was therefore unreasonable.
The court remitted the matter to the administrator for redetermination.
Counsel for the parties were not immediately available for comment.
Counsel for the applicant were David Rosenfeld and Sue Tan of Koskie Minsky LLP.
Counsel for Canada were Christine Mohr and Margaret Cormack of the Department of Justice Canada.
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