Appeals: Confirmed Referee Decisions : #148 - May 17, 2004

Decision of the Court having jurisdiction in the Class Action attached - December 9, 2004

D E C I S I O N

A Claim was submitted by the Claimant as Representative of his deceased wife in September 1986.

The Claim was rejected on March 27, 2003 by the Claim Center's Administrator stating in his refusal letter that "you have not provided sufficient evidence in support of your Claim that the deceased person was infected with HCV".

A Request for Review was submitted which asked that the Administrator's decision be reviewed by a Referee.

A hearing was scheduled for April 27, 2004, but the Representative of the deceased person indicated to the assistant of the undersigned on April 26, 2004, that he preferred not to be there in person, considering instead that the file was complete and that he didn't have anything to add to such documentation. It is therefore on the basis of the completed file, including the written arguments submitted by the Fund's Legal Counsel, that I must render a decision in this case.

The Claimant reported that his wife had received some 22 transfusions before 1986 (from August 3 to December 13, 1985) and 23 transfusions during the period covered by the 1986-1990 Settlement Agreement in relation to the Transfused HCV Plan.

The Fund's Legal Counsel doesn't argue the fact that the deceased person received several transfusions during the Class Action Period. However, she feels that the Claimant has not proven that the deceased person was HCV Infected at the time of her death and she adds that the Claimant has not proven that HCV was the cause of his wife's death.

Paragraph 3.05 of the Transfused HCV Plan provides that, regarding the Claims submitted by the Personal Representative of a HCV Infected Person:

« (1) A person claiming to be the HCV Personal Representative of a HCV Infected Person who has died must deliver to the Administrator, within three years after the death of such HCV Infected Person or within two years after the Approval Date, whichever event is the last to occur, an application form prescribed by the Administrator together with:

• proof that the death of the HCV Infected Person was caused by his or her infection with HCV;
• unless the required proof has already been previously delivered to the Administrator:
• if the deceased was a Primarily-Infected Person, the proof required by Sections 3.01 and 3.03; or
• if the deceased was a Secondarily-Infected Person, the proof required by Sections 3.02 and 3.03; and

c) …

I read with interest all the documentation on the hospital file of the person who died at the Hôpital Notre-Dame in Montreal, and I cannot find any information allowing me to believe that the Claimant's wife had been diagnosed with HCV.

In fact, I have not found any information or documents on the investigation file allowing me to believe that the Claimant's wife had been infected with HCV.

Furthermore, Dr. Yves Lapointe, the Hôpital Notre-Dame Hematologist, wrote the following note on the TRAN 2 Form on May 17, 2002:

"This patient, who was suffering from secondary breast cancer, died on September 1, 1986 of a retrostatic breast cancer of the bones, liver and marrow .

There is no suspicion of an infection with HCV."

On the Autopsy Report, which Dr. Lapointe then refers to in his note of May 17 ( the Report was signed by Dr. Marie-Josée Gérard, Pathologist), there are indications as to a metastatic breast carcinoma, an infection of the respiratory route, esophagus and cardial ulcerations and pelvic endometriosis, but there is no mention of Hepatitis C problems.

On the basis of all the documentation, I feel that the Claimant did not prove that his wife was HCV infected at the time of her death.

Also, the Claimant did not prove that his wife had died of HCV nor that HCV had contributed to her death.

The hospital file describes the story of a young woman who is not even 40 years old, fighting against an illness that at times, progresses insidiously then, at other times, very quickly. I do not have difficulty understanding the Claimant's disarray following this terrifying illness and then his wife's death, but my sympathy for the Claimant does not allow me to ignore the terms and conditions of the Transfused HCV Plan.

The Administrator must implement the Plan according to its terms and conditions. The same rules apply to the Referee, and as such, I do not have the power to modify the Plan's terms and conditions.

Paragraph 3.05 (1)(a) of the Transfused HCV Plan provides that the Personal Representative of the HCV Infected Person must provide "proof that the death of the HCV Infected Person was caused by his or her infection with HCV".

This proof has not been made and I must therefore uphold the Administrator's decision to refuse the Claimant's Request for Compensation.

MONTREAL, May 17, 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 9, 2004

SUPERIOR COURT

CANADA
PROVINCE OF QUEBEC
DISTRICT OF MONTREAL

N° 500-06-000016-960

DATE: DECEMBER 9, 2004

PRESIDING JUDGE: THE HONORABLE NICOLE MORNEAU, JSC

DOMINIQUE HONHON
Applicant
Vs.
THE ATTORNEY GENERAL OF CANADA
And
THE ATTORNEY-GENERAL OF QUEBEC
And
THE CANADIAN RED CROSS
Defendants

And
CLAIMANT NO 5200
APPELANT

REPORT OF THE PROCEEDINGS

Beginning at: 9:32 a.m.
Ending at: 10:05 a.m.

Present: Hon. Nicole Morneau, JSC
Me. Christine Kark (Fund Counsel)
Me Michel Savonnitto (Joint Committee Member)
Claimant N° 5200 (The Appelant)

Clerk of the Court: Rollande Levasseur

Note: Request for Review of a Decision of the Referee before the Superior Court.

Claimant N° 5200

(9:32 a.m.) Session Opening
Exchange between Me Savonnitto and the Court
Exchange between Me Savonnitto and the Claimant

(9:34 a.m.) Proof provided by Claimant

Witness: Claimant N° 5200

The Claimant addresses the Court
Questioned by Me Savonnitto
Interrupted by questions from the Court

(9:58 a.m.) The Court addresses the Claimant

Decision:

There is no ground to review the Referee's decision and for the reasons mentioned orally, the appeal is rejected.

(signed) Nicole Morneau, JSC
(signed) Rollande Levasseur, g.a.c.s.

(10:05 a.m.) End of Hearing