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ARTICLE · 24 NOVEMBER 2020

Class Members Ineligible For A Settlement Denied The Right To Appeal

McCarthy Tétrault
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In Hébert v. Wenham, 2020 FCA 186, over a quarter of the class was ineligible for a settlement approved by the Federal Court.

CanadaLitigation, Mediation & Arbitration
Canadian Class Actions Monitor
Canadian Class Actions Monitor
Patrick Williams
Patrick Williams
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In Hébert v. Wenham, 2020 FCA 186, over a quarter of the class was ineligible for a settlement approved by the Federal Court. Several ineligible class members sought leave to appeal. The Federal Court of Appeal held that (i) the appeal was doomed to fail because of the deference owed to the settlement and the Federal Court and (ii) the ineligible class members could not opt-out. The case demonstrates the high burden on a class member who wants to overturn a settlement.

The case arises from the use of Thalidomide, a drug linked to birth defects. The federal government established a program to provide funds to children who survived. Mr. Wenham applied for inclusion in the program, but was rejected because the program effectively required individuals to prove beyond all reasonable doubt that they were eligible-a rigorous evidentiary threshold. He brought a class proceeding on behalf of all rejected applicants.

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