Appeals : Confirmed Referee Decisions : #32 - January 14, 2002

Decision of the Court having jurisdiction in the Class Action attached - April 4, 2003

D E C I S I O N

Introduction

1. Claimant 192 from the Province of Nova Scotia submitted a Claim as a Secondarily-Infected Person under the HCVC Transfused Plan.
2. By letter dated October 29, 2001, the Administrator denied the Claim on the basis that the claimant was not eligible for compensation as she did not meet the requirements of the Settlement Agreement as a "Secondarily-Infected Person".
3. The Claimant requested a review of the Decision of the Administrator by a Referee on November 6, 2001.
4. A hearing with respect to the Claim was held in Halifax, Nova Scotia on January 11, 2002.

Facts

5. The Claimant submitted in the General Claim Introduction Form that she believed she had been infected with the Hepatitis C Virus by her daughter who was infected with the Hepatitis C Virus through a blood transfusion received in Canada between January 1, 1986 and July 1, 1990.
6. The Claimant stated that she did not receive a blood transfusion.

Decision

7. The Claimant has applied for compensation under the terms of the Hepatitis C 1986-1990 Class Action Settlement Agreement as approved by Court Order dated October 22, 1999.
8. The Settlement Agreement does allow for compensation of Secondarily-Infected Persons who are able to establish, on a balance of probabilities, that he or she was infected with HCV, for the first time, by an Approved Primarily-Infected Person.
9. The term "Secondarily Infected Person" is defined in the Settlement Agreement at Section 1.1 and reads as follows:
   1. "A SPOUSE of a Primarily-Infected Person or Opted-Out Primarily-Infected Person who is or was infected with HCV by such Primarily-Infected Person or Opted-Out Primarily-Infected Person provided the Claim of the Spouse is made:
      1. Before the expiration of three (3) years from the date the Primarily-Infected Person first makes a claim or the HCV Personal Representative makes the firm claim
      2. In accordance with Section 3.05 (1), where a HCV Personal Representative makes first claim on behalf of a deceased Primarily-Infected person; or
      3. In accordance with Section 3.8, where the Primarily-Infected Person has not made a claim; or
   2. A CHILD of a HCV Infected person or Opted-Out HCV Infected Person who is or was infected with HCV by such HCV Infected Person or Opted-Out HCV Infected Person;"
      
      
      
10. This definition provides that a Secondarily-Infected Person must be either a spouse or a child of the Approved Primarily-Infected Person.
11. The Claim acknowledges that she is the parent of a Primarily-Infected Person in the present case. That individual is the Claimant's daughter.
12. Based on the evidence and documentation provided in the present Claim, the Claimant has failed to establish that she is a Secondarily-Infected Person within the specific definition set forth within the Settlement Agreement.
13. I can understand the frustration of the Claimant in the present case. As she has noted, if her daughter had become infected from her, the daughter would have been entitled to compensation. The Claimant regards the Settlement Agreement as being unfair in denying her compensation simply because she is a parent and not a child.
14. Unfortunately, the eligibility requirements for compensation for a Secondarily-Infected Person are clearly defined in the Settlement Agreement. Because the Claimant does not fall within that definition, I must uphold the position of the Administrator.

Dated at Halifax, Nova Scotia this 14th day of January 2002.

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Gregory I. North, Q.C., C. Arb.

J U D I C I A L D E C I S I O N

Judge Winkler's Decision - April 4, 2003

Nature of the Motion

1. This is a motion to oppose confirmation of the decision of a referee appointed pursuant to the terms of the Settlement Agreement in the Hepatitis C litigation for the class period January 1,1986 to July 1, l990. The Claimant has made a claim for compensation pursuant to the Agreement which was denied by the Administrator charged with overseeing the distribution of the settlement monies. The Claimant appealed the denial to a referee in accordance with the process set out in the Agreement. The referee upheld the decision of the Administrator and denied the appeal. The Claimant now opposes confirmation of the referee's decision by this court.

Background

2. The Settlement Agreement is Pan-Canadian in scope and was approved by this court and also approved by courts in British Columbia and Quebec. (See Parsons v. The Canadian Red Cross Society (1999), 40 C.P.C. (4th) 151 (Ont. Sup. Ct.)). Under the Agreement, persons infected with Hepatitis C through a blood or specified blood product transfusion within the period from January 1,1986 to July 1, 1990 are entitled to varying degrees of compensation, depending primarily on the progression of the Hepatitis C infection.

3. The following factual summary pertinent to this motion is taken from the referee's decision dated January 14, 2001:

1. The Administrator denied the Claimant's claim for compensation under the Agreement on October 29, 2001.

2. A hearing was held by the referee on January 11, 2002.

3. The following facts were undisputed:

(a) The Claimant is infected with Hepatitis C;

(b) She was not infected by a blood transfusion.

4. The Claimant based her claim, and her appeal, on her belief that "she had been infected with the Hepatitis C Virus by her daughter who was infected with the Hepatitis C Virus through a blood transfusion received in Canada between January 1, 1986 and July 1, 1990."

Standard of Review

6. In a prior decision on a motion to oppose confirmation of a referee's decision in this class proceeding, the standard of review set out in Jordan v.McKenzie (1987), 26 C.P.C. (2d) 193 (Ont. H.C., aff'd (1990), 39 C.P.C. (2d) 217 (C.A.) was adopted as the appropriate standard to be applied to motions to oppose confirmation of a referee's decision by a rejected claimant. In Jordan, Anderson J. stated that the reviewing court "ought not to interfere with the result unless there has been some error in principal demonstrated by the [referee's] reasons, some absence or excess of jurisdiction, or some patent misapprehension of the evidence".

Analysis

7. The Claimant's position is that she is a secondarily infected person, having contracted Hepatitis C from her daughter who was directly infected by a blood transfusion. While the evidence the Claimant presented on her application and at the appeal does not necessarily establish that she contracted Hepatitis C from her daughter, the real difficulty with her claim is that only certain classes of persons infected by secondary means are eligible for compensation under the Plan. Accordingly, "Secondarily Infected Person" is a defined term under the Plan that is restricted to Spouses and or Children of Primarily-Infected Persons. Since the Claimant is a parent rather than a Spouse or a Child of the Primarily-Infected Person, she is not eligible for compensation under the Plan.

8. The Claimant's additional submissions, contained in her Notice of Motion to oppose confirmation, set out her position that the Plan is inequitable and should be amended to include Parents under the definition of Secondarily-Infected Persons. However, as stated in an earlier decision "it must be remembered that the Settlement Agreement is not a general compensation scheme for all persons infected with Hepatitis C. Rather, it is an agreement reached in the context of class proceedings brought to advance the claims of a particular class or classes of Canadians who were infected with Hepatitis C through the blood system." Accordingly, it is beyond the court's jurisdiction to give effect to the Claimant's equitable argument on this motion.

Result

9. In my view, the referee committed no errors in principle, with respect to jurisdiction or by misapprehending the evidence before him. Accordingly, the referee's decision is confirmed.

______________________
Winkler J.

Released: April 4, 2003