Lawsuit over province’s N95 mask purchase still a year from trial

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This article was published 14/04/2023 (1216 days ago), so information in it may no longer be current.

It could take years to resolve the legal battle over the Manitoba government’s pandemic purchase of N95 masks.

The government is being sued for US$6 million, plus interest and damages, by a U.S. company that claims Manitoba owes it for a 2020 order of five million masks that were later deemed unsuitable for hospital use.

It could take more than a year for a trial to begin in the case that was launched in fall 2020.

The provincial government made a multimillion-dollar deal weeks after the global COVID-19 pandemic was declared. The province was trying to secure medical-grade masks for health-care workers to use, but the masks it got came with a “non-medical” label, according to court filings.

As part of Manitoba’s defence against PTG’s lawsuit, the provincial government argues the fact the masks were not fit for their intended medical purpose violated the purchase order and it doesn’t have to pay.

Manitoba issued a purchase order April 7, 2020, to buy five million N95 respirator masks from China, via a Minnesota company Private Trading Group LLC (PTG). Manitoba was to pay the company US$19 million (US$3.80 per mask), with the final payment of US$6 million due upon delivery of the last shipment. The provincial government rejected the last delivery of about 60,000 masks, didn’t pay the US$6 million owing, and unsuccessfully tried to get a refund on the entire purchase.

The province had paid US$13 million (CAD$18,573,656).

None of the masks were fit for medical use, government officials determined, noting a user guide that came with a shipment said the masks were for “non-medical use,” Manitoba’s statement of defence indicates.

The government argues it has no obligation to pay PTG because final payment was subject to inspection of the masks and it didn’t have to provide the company with Manitoba’s fit-testing requirements for the masks.

PTG claims it never got fit-testing requirements and wasn’t responsible for making sure the masks passed fit testing. It argues the masks were fit for the purpose because they were legitimate N95 masks.

The purchase order said Manitoba wanted the masks for medical use, the government argues, but it says the delivered masks weren’t approved by the National Institute of Occupational Safety and Health. Therefore, even if the masks met the definition of N95, Manitoba argues, “they were not fit for the purpose intended of medical use related to COVID-19.”

It’s unclear whether the bulk of the delivered masks — more than four million — were used. Court filings don’t reveal what happened to them and the provincial government will not comment while the case is before the court.

Veteran Winnipeg litigator Robert Tapper represents PTG, which also names as a defendant the former deputy minister responsible for Central Services in Manitoba.

Tapper said he was unable to find out where the masks are being stored during the civil discovery process.

He said he believes the case is a “classic government fiasco.”

Tapper said he anticipates trial dates will be set, but they could be 15 to 24 months away considering court backlogs.

“COVID knocked out trials for a very lengthy period of time,” over a year, he said. “So all of a sudden we are now faced with this rush to get things done… it had nothing to do with this case in particular. It’s just one of the things we trial lawyers have to live with because of the experiences of losing access to the courts.”

katie.may@winnipegfreepress.com