2006 Annual Report
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Schedule N - Report of Fund Counsel
- The duties and responsibilities of Fund Counsel are defined by Section 7.01 of the January 1, 1986 - July 1, 1990 Hepatitis C Settlement Agreement. These duties and responsibilities include:
- defending decisions made by the Administrator;
- defending and advancing the interests of the Trust Fund;
- receiving financial statements and actuarial and other reports relating to the financial sufficiency of the Trust Fund from time to time; and if deemed necessary or desirable by Fund Counsel, making applications to courts pursuant to Section 10.01 of the Settlement Agreement.
- John Callaghan was appointed as Fund Counsel for the Ontario Class Actions by Order of the Ontario Superior Court of Justice. Carolyn Horkins, formerly acting as Fund Counsel for the Ontario Class Actions, was appointed a Judge of the Ontario Superior Court of Justice on May 3, 2004. An Order of the Superior Court of Justice was granted on October 20, 2004 replacing Ms. Horkins as Fund Counsel for the Ontario Class Action by Belinda Bain. Mason Poplaw was appointed Fund Counsel for the Quebec Class Actions by Order of the Quebec Superior Court. William Ferguson was appointed Fund Counsel for the British Columbia Class Actions by Order of the British Columbia Supreme Court.
- During the fiscal period of April 1, 2005 through to March 31, 2006, Fund Counsel were primarily involved in defending decisions made by the Administrator on appeals instituted by claimants. The appeals are conducted either as References or Arbitrations. Appeals can be conducted in writing or in person. In each case, written submissions are delivered to the claimant and the Referee/Arbitrator in advance of the appeal. When the appeal is conducted in person, Fund Counsel attends the hearing. The hearing is held where the claimant resides.
- If the appeal is conducted by way of Reference, the Referee’s decision is final and binding within 30 days of the release of the decision unless a claimant opposes confirmation within the 30 day period. If confirmation of the Referee’s decision is opposed by the claimant, the Referee’s decision is reviewed by the Court.
- In addition to the appeals, Fund Counsel have also handled claims where court approval was necessary for payments involving minors or a mentally incompetent adult.
- Fund Counsel also receive and review financial statements and other reports relating to the financial sufficiency of the Trust Fund.
- Below is a report of the activities of each Trust Fund Counsel in relation to the appeals conducted:
- Ontario Fund Counsel
Ontario Fund Counsel handles appeals from Claimants in Alberta, Manitoba, Ontario, Saskatchewan, New Brunswick, Newfoundland, Nova Scotia, Prince Edward Island, Yukon Territory, The Northwest Territories and Nunavut.
| Number of total appeals received
from the beginning to March 31, 2006: |
246 |
| Number of appeals received
from April 1, 2005 to March 31, 2006 |
33 |
Number of total completed appeals (decisions rendered)
from the beginning to March 31, 2006: |
148 |
Number of completed appeals (decisions rendered)
from April 1, 2005 to March 31, 2006: |
35 |
Number of total withdrawals
from the beginning to March 31, 2006: |
25 |
Number of withdrawals
from April 1, 2005 to March 31, 2006: |
1 |
| Number of total rescissions of denial
from the beginning to March 31, 2006: |
17 |
| Number of rescissions of denial
from April 1, 2005 to March 31, 2006: |
1 |
Number of pending appeals as of March 31, 2006: |
51 |
Number of total requests for judicial confirmation
from the beginning to March 31, 2006: |
35 |
Number of requests for judicial confirmation
from April 1, 2005 to March 31, 2006: |
9 |
| Number of total judicial decisions from the beginning to March 31, 2006: |
16 |
Number of judicial decisions
from April 1, 2005 to March 31, 2006: |
8 |
Because Ontario Fund Counsel is involved in appeals from a number of provinces, there is a significant amount of travel involved in conducting some of the appeals. In the past year, the volume of new appeals remained relatively constant at 33 in Year 6 compared to 31 in Year 5. The number of completed appeals increased in Year 6 by almost 40% compared to the number of completed appeals in Year 5.
Ontario Fund Counsel incurred fees of $324,103.00 plus GST on fees of $22,687.21 and disbursements of $45,320.90 including $21,300.44 for traveling expenses such as airfare, hotel, taxi, parking and meals together with $14,294.11 for medical experts’ fees and expenses with respect to preparing reports and testifying at hearings) plus GST on disbursements of $3,161.33. With taxes, the total amount of fees and disbursements incurred is $430,864.38.
- Quebec Fund Counsel
Particulars of the appeals are as follows:
Number of total appeals received
from the beginning to March 31, 2006: |
68 |
Number of appeals received
from April 1, 2005 to March 31, 2006: |
6 |
Number of total completed appeals (decisions rendered)
from the beginning to March 31, 2006: |
47 |
Number of completed appeals (decisions rendered)
from April 1, 2005 to March 31, 2006: |
6 |
Number of total withdrawals
from the beginning to March 31, 2006: |
8 |
Number of withdrawals
from April 1, 2005 to March 31, 2006: |
0 |
Number of total mediated appeals
from the beginning to March 31, 2006: |
1 |
Number of mediated appeals
from April 1, 2005 to March 31, 2006 |
0 |
Number of total rescissions of denial
from the beginning to March 31, 2006: |
4 |
Number of rescissions of denial
from April 1, 2005 to March 31, 2006: |
2 |
Number of pending appeals as of March 31, 2006: |
8 |
Number of total requests for judicial confirmation
from the beginning to March 31, 2006: |
15 |
Number of requests for judicial confirmation
from April 1, 2005 to March 31, 2006: |
4 |
Number of total judicial decisions
from the beginning to March 31, 2006: |
12 |
Number of judicial decisions
from April 1, 2005 to March 31, 2006: |
4 |
Number of withdrawals of requests for judicial confirmation |
1 |
In the next fiscal year, Quebec Fund Counsel may need the assistance of medical experts to testify at the in-person hearings.
Quebec Fund Counsel has incurred fees of $99,995.00 and disbursements of $9338.24. With taxes, the total amount of fees and disbursements incurred in Quebec is $116,986.69.
- British Columbia
Particulars of the appeals are as follows:
Number of total appeals received
from the beginning to March 31, 2006: |
59 |
Number of appeals received
from April 1, 2005 to March 31, 2006: |
7 |
Number of total completed appeals (decisions rendered)
from the beginning to March 31, 2006: |
38 |
Number of completed appeals (decisions rendered)
from April 1, 2005 to March 31, 2006: |
10 |
Number of total withdrawals
from the beginning to March 31, 2006: |
8 |
Number of withdrawals
from April 1, 2005 to March 31, 2006: |
1 |
Number of total rescissions
from the beginning to March 31, 2006: |
0 |
Number of rescissions
from April 1, 2005 to March 31, 2006: |
0 |
Number of total mediated appeals
from the beginning to March 31, 2006: |
0 |
Number of mediated appeals
from April 1, 2005 to March 31, 2006: |
0 |
Number of pending appeals as of March 31, 2006: |
11 |
Number of total request for judicial confirmation
from the beginning to March 31, 2006: |
11 |
Number of requests for judicial confirmation
from April 1, 2005 to March 31, 2006: |
2 |
Number of total judicial decisions
from the beginning to March 31, 2006: |
11 |
Number of judicial decisions
from April 1, 2005 to March 31, 2006 |
2 |
B.C. Fund Counsel has incurred fees of $114,900.00 and disbursements of $3,049.51. With 7% GST on fees of $8,043.02 and on disbursement of $605.14, and 7% PST on fees of $8,043.02, the total amount of fees, disbursements and taxes incurred in B.C. is $134,640.69.
Appeals that are pending generally fall into one of the following categories:
-
Appeals that have been requested but not yet commenced. Some Arbitrators and Referees schedule a pre-appeal conference call before a date for the appeal is set. This can result in the delay in scheduling a date for the appeal. Often, claimants require additional time to collect evidence before commencing the appeal. Fund Counsel generally consent to a reasonable period of delay for the benefit of the claimant.
-
Appeals that have been commenced but not yet concluded. Appeals are often adjourned to allow the claimant an opportunity to collect and provide additional evidence. Fund Counsel generally consent to these adjournments. The Referee/Arbitrator usually monitors the adjournment to ensure that the appeal resumes in a reasonable period of time.
- Appeals that have been concluded and the decision from the Arbitrator or Referee is pending.
Pursuant to the Court Approved Protocol for Arbitration/References and subject to the discretion of the Referees and Arbitrators, Fund Counsel endeavour to conduct the appeals in the simplest, least expensive and most expeditious procedure. When practical and reasonable to do so, evidence from witnesses is introduced in writing or by telephone to eliminate the expense of having the witness testify in person. However, in some appeals, it is preferable to have the witness testify in person and on these occasions the expense is unavoidable.
- Fund Counsel anticipates that the time required to handle appeals during the forthcoming fiscal year will decrease somewhat. However, the recent experience is that the existing appeals which have not yet been resolved are more complex and therefore require more Fund Counsel time. Due to the complexity of existing appeals, the need for expert medical and other evidence is expected to increase.
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