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Closed Budget and Litigation-Management Appeal Design

Day 2 · 3:46:58 · Jasmeet Grewal · Shawn Buckley

  • 🔒 Fixed contribution envelope plus high admin share created an inherent incentive to delay or deny payouts.
  • 📋 The later-unredacted “litigation management plan” scheduled appeals expressly to slow suits against PHAC and the administrator.
  • ⏱️ Contract language allowed resubmission whenever new reliable evidence arose, yet claimants were told of only short appeal windows.

Structural features of the original VISP contract that limited compensation and transparency.

← Daniel Freiheit Sworn: ATIP Exposes VISP Contract Redactions | Q&A: What Is It Like Helping Clients Navigate VISP? →

Transcript

Jasmeet Grewal · 3:46:58

Correct. And to that point, I think if every application was just accepted without too much review, that can create its own hazard. So I can see the need for a bit of a pushback in some of these applications. I do recall that Thailand had a different approach. In this regard. Thailand was much more, to your point, accepted the injury as stated, but they just awarded a lesser amount for each application. So there's some advantages to this.

Shawn Buckley · 3:47:21

Slow down, because you just revealed something I hadn't thought of. They've only got a limited amount of money to dish out under the contract, so they're kind of obligated, then it's not going to come out of their own pockets. So they're actually limited in the amount. So it's a closed amount regardless of the number of people that apply, and regardless of the injuries they have.

Jasmeet Grewal · 3:47:44

Well, that's one of the reasons why I thought it was important, why I wanted to come here today, is that that is part of the constraints of the program, is that there is an incentive, uh, to, um, or just the way the mechanism works. It's you have a limited budget, a certain portion goes to, uh, the administrative costs, and you have to reserve, hold back the funds for those who've been injured from the vaccine. And so yes, there is a, a sort of mechanism to delay payments, and you see that with the appeal process, which, going back to my earlier comments about the redactions, what that appeal process revealed to me was that it was part of a schedule to that document, the contribution agreement, called the litigation management plan or process. So meaning that schedule was really designed to slow down litigation against Health Canada or Public Health Agency of Canada and the third-party provider of the service. That was the whole point of that schedule. It was ultimately unredacted by the Office of the Information Commissioner in September, for me, I think it was September of 2023.

Jasmeet Grewal · 3:48:52

And so that showed how you deal with the appeals process, which from my experience with the Vaccine Injury Support Program, I do not believe they complied with that aspect of the contract.

Shawn Buckley · 3:49:05

And I apologize we didn't create a slide, but you provided me with those documents, which I have to say just shocked me. So thank you for doing that work of doing the ATI request to reveal this. But I'm just going to read the paragraph that you flagged to my attention. So this, this is in the contract, and this is what should govern the right to access an appeal. And it reads: So this is Section 3.1.3. Claimants will be advised that a claim can be resubmitted for assessment only if new reliable evidence from a recognized source has arisen to support a causal relationship between the injury and/or the progression of injury. Now tell us what that means.

Jasmeet Grewal · 3:49:50

So that's very interesting. And that to me suggests that when people were being refused or denied on their initial application, and they were given a time limit to appeal. When I saw that unredacted component, I mean, that really opened up the appeal time frame. It means that anytime there's new studies, anytime, uh, someone with a, a, an injury from the vaccine gets a proper diagnosis, um, and it's been taking a lot of people a lot of time. We've heard that here the past couple of days. I personally have, uh, have assisted one individual who took it, whose diagnosis took, I think 4 or 5 years. So once that diagnosis is in, it's a fresh application. To Public Health Agency Canada credit, the new program, the new VIAP, does open up this window. They're willing to look at it now. So it, you know, that's the silver lining. The downside is that I think they're still overwhelmed. They haven't addressed the administrative issue here, which is that there is more applications than they anticipated.

Jasmeet Grewal · 3:50:53

And, um, that's also revealed— that's also revealed in the— just in the— another ATIP, which shows that 255 people are being moved over from the original program.

Shawn Buckley · 3:51:02

Yeah, and I just want to slow this down again because some people might not understand, um, how this would affect the people that are refused. So if you're refused and you're told you have a short window to appeal, well, that wasn't what the contract said. The contract said Well, at any time new information comes forward. So if your appeals— your applications refused, we don't recognize this as vaccine injury, and all of a sudden other countries and there's research, no, no, this is vaccine injury under the contract. Well, you could just reapply because you have new information and people weren't told this and you were surprised because it didn't— you're helping people in the appeal process and it's surprising you that the contract isn't matching what everyone believes.

Jasmeet Grewal · 3:51:47

There was, I think, confusion in the communication as to, yes, what is the finality of that first decision, and also confusion about the 3-year final cutoff for any application. So I think there was some, you know, some provisions that said there's a firm 3-year cutoff, but then you have this other provision that says subject to, you know, if there's additional information or evidence.

Shawn Buckley · 3:52:10

What's the experience been like dealing with the Vaccine Injury Support Program, like as a lawyer trying to help clients?