Appeals: Confirmed Referee Decisions : #147 - May 14, 2004

Decision of the Court having jurisdiction in the Class Action attached - December 15, 2004

D E C I S I O N

The Claimant submitted a Request for Review following the decision by the 1986-1990 Hepatitis C Settlement Agreement Fund Administrator to reject a Request for Compensation, which she submitted on behalf of her son who died in June 2000.

It is conceded that the Claimant's son was a HCV carrier and that he died of cirrhosis of the liver.

Firstly, it must be decided if the Claimant has been able to establish that her son had received one (or several) transfusion(s) during the period covered by the Agreement.

The Claimant indicated that she relied on documents which had already been submitted, and there was no hearing in this case. As Referee, I must therefore make a decision, based on the current Request for Review, on the basis of documents already provided and submitted to the Claims Center.

The Claimant's son who was 32 years old at the time was seriously injured on November 6, 1987 in a car accident and was first brought to the Hôpital de Val-d'Or, then, transferred to the Hôtel-Dieu d'Amos, and from there, to the Hôpital du Sacré-Cœur in Montreal.

The Hôtel-Dieu d'Amos file indicates that 3 units of blood had been cross-matched and the Claimant argues that her son had received several or all of the units, either during his stay at the Hôtel-Dieu d'Amos or during his transfer from Amos to the Hôpital du Sacré-Coeur in Montreal.

But, there is nothing in the Hôtel-Dieu d'Amos file which allows us to conclude that the blood set aside for the Claimant's son had indeed been transfused. Incidentally, the Hôpital du Sacré-Cœur file, in Montreal, indicates instead that 2 of those 3 units were still available, when the patient arrived in Montreal. A letter signed by Suzanne Deschênes-Dion, the person in charge of transfusional security for Héma-Québec (tab 23 of the Fund's Legal Counsel notes) confirms that the third unit was administered to another patient on November 14, 1987.

As well, there is nothing in the Sacré-Coeur file that allows us to establish that the units that had been cross-matched at the Hôtel-Dieu d'Amos were subsequently transfused to the Claimant's son.

In the Tran 2 Form completed by the Attending Physician in December 2000, it is mentioned that the Claimant's son had received 3 transfusions in November 1987. In a letter dated July 14, 2003 (reproduced at tab 22 of the Fund's Legal Counsel's observations), this same doctor wrote:

"… on rereading the file recently, my interpretation of the Hôtel-Dieu d'Amos blood bank form is somewhat different. The blood cells were sent for transfer by airplane, but there is no note confirming reception of these blood cells by the patient. The nurse's and doctor's notes, during the plane trip, allowing to confirm or infirm the receipt of the bloods cells by Mister ( )are missing." ( the name of the patient was omitted from this decision in order to protect his identity).

I am satisfied that there is no evidence that the Claimant's son received a blood transfusion as an immediate result of his accident of November 6,1987.

The Claimant's son was again operated on, at the Hôpital du Sacré-Cœur, in January 1990, but everything points to the fact that the surgery was well tolerated and that the units of blood then set aside were not transfused.

However, the file contains a letter dated September 5, 2002 from Dr. Gilles Delage, Chief Manager, Medical Affairs, at Héma-Québec, confirming that "according to information obtained from the Hôpital du Sacré-Cœur in Montreal and the Hôtel-Dieu d'Amos blood banks, Mr. ( ) did not receive any blood products in their establishments."

The 1986-1990 Hepatitis C Settlement Agreement puts a heavy burden on the Claimant, a burden that is often difficult to discharge, and unfortunately, the Claimant was unable to do so in this case.

I must however point out that beyond the proof derived from hospital records and arguments derived from the Agreement's own wording, it was established by the documentation submitted to me that the Claimant's son had used intravenous drugs (letter from a Centre Hospitalier doctor in Rouyn-Noranda to the Hôpital St-Luc doctor), that he had drunk heavily "for many years", that he had been tattooed and that he had been incarcerated for a brief period. These are as many factors that must be considered as risk factors and which could explain the Claimant's son's disease.

The Referee, like the Administrator, has no discretionary power to approve a Claim or a Request for Review if the proof required under the Agreement was not submitted. As Referee, I have no authority to modify, ignore or contradict the terms, conditions or provisions of the Agreement.

The Administrator rejected the Claimant's Request for Compensation and as Referee in this case, I must come to the same conclusion and maintain the decision to reject the Claimant's Request for Compensation.

Montreal, May 14, 2004

Jacques Nols

Referee

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

Judge Morneau's Decision - December 15, 2004

SUPERIOR COURT
CANADA
DISTRICT OF MONTREAL

NO: 500-06-000016-960

DATE: December 15, 2004
_________________________________________________________________________

PRESIDING JUDGE: THE HONORABLE NICOLE MORNEAU, SCJ _________________________________________________________________________

DOMINIQUE HONHON
Petitioner
V.
ATTORNEY GENERAL OF CANADA
AND
ATTORNEY GENERAL OF QUEBEC
AND
THE CANADIAN RED CROSS SOCIETY
Defendants

AND
CLAIMANT NO 2784
APPELLANT

_________________________________________________________________________

JUDGMENT TO REEXAMINE A REFEREE'S DECISION
1986-1990 Hepatitis C Settlement Agreement
Transfused Plan

_________________________________________________________________________

[1] The Claimant is acting as Representative of her son who died of a liver cirrhosis. She is appealing the decision of the Referee who has rejected her Request for review of the Administrator's decision to reject her claim. Therefore, she is disputing the approval of this decision, which rejects her claim for compensation, pursuant to the 1986-1990 Hepatitis C Settlement Agreement.

[2] There is no dispute regarding the Claimant's son's HCV infection and his death, as a result of his HCV infection in June 2000.

[3] In this case, t he disputed decisions are based on the fact that the Claimant and his representative failed to discharge their burden of proof, that is, to establish that he had received one or some infected blood transfusions during the Class Period, pursuant to the Agreement, that is, between January 1, 1986 and July 1, 1990 inclusively.

[4] Here, we can only sympathize with the mother who specially came from Rouyn, under difficult road conditions, in order to discharge the mandate that her son had given her of not giving up on the claim. However, this court cannot allow her appeal.

[5] The Claimant has actually not been able to prove that the Referee had committed an error in evaluating her evidence. Her son's medical record, while incomplete, contains sufficient information to establish that in spite of her contentions, he (the Claimant's son) did not receive any of the three units of packed red blood cells (culots de sang) that had been set aside for him in case of need during his airlift from the Hôpital d’Amos to the Hôpital Sacré-Coeur de Montréal.

[6] Furthermore, o ther notes in his hospital record mention the presence of many other risk factors that could explain the Claimant's son HCV infection. It is possible that the mother was unaware of those, but such facts are well documented. Finally, no additional proof was brought forward to justify the Superior Court's intervention.

[7] On the basis of the foregoing and the obligation of this court to apply the terms of the Settlement Agreement, the appeal must be rejected.

ON THAT GROUND, THE COURT:

REJECTS the Request for review No. 2784;

DECREES that the Administrator's and the Referee's decisions do not need to be revised;

REJECTS the appeal as a matter of consequence;

ALL THIS , without costs.

ORIGINAL SIGNED BY NICOLE MORNEAU, SCJ

Me Christine Kark
MCCARTHY TÉTRAULT
Fund Counsel

The Claimant's Representative No. 2784

Me Michel Savonitto, in his quality of Member of the Joint Committee
MARCHAND MELANÇON FORGET

Hearing Date: December 8, 2004