Appeals : Confirmed
Referee Decisions : #2 - May 31st, 2001
Decision of the Court having jurisdiction
in the Class Action attached - February 11, 2003
D E C I S I O N
1. On March 19, 2001, the Administrator denied the claim
for compensation as a Primarily-Infected Person pursuant to
the Transfused HCV Plan on the basis that the Claimant had
not provided sufficient evidence that he had received a blood
transfusion within the Class Period.
2. The Claimant requested an oral hearing by a Referee to
review the Administrator's denial of his claim.
3. The parties presented a copy of the application, correspondence
pertaining to the Administrator's decision, written, oral
and videotape submissions and references to applicable, previously-rendered
decisions.
4. The hearing took place on May 25, 2001 in Edmonton, Alberta.
5. Neither party disputed the following facts:
(a) The Claimant is infected with Hepatitis C;
(b) Such infection was probably the result of a blood
transfusion the Claimant received during the only hospitalization
of his life on May 31, 1985 at the Royal Alexandra Hospital
in Edmonton, Alberta;
(c) The Claimant received no blood transfusions during
the period from January 1, 1986 to and including July 1,
1990;
(d) The Claimant was not diagnosed with Hepatitis C until
January, 2000.
6. The Claimant does not argue that he falls within the Class
Period as defined in the 1986 - 1990 Hepatitis C Settlement
Agreement or Transfused HCV Plan. Rather, he argues that it
is unfair to exclude him from compensation under the Plan.
Firstly, he submits that the selection of the commencement
date of the Plan at January 1, 1986 is arbitrary. Secondly,
he submits that there are social and political considerations
which were not taken into account in establishing the Plan.
Thirdly, he submits that other Hepatitis C victims may obtain
entitlement to compensation, who were in fact infected before
the Class Period, because they can produce sufficient evidence
of a blood transfusion within the Class Period. Given this
possibility, he contends it unfair to exclude him from entitlement
to compensation.
7. Fund counsel submitted that there is no authority in a
Referee to allow the subject claim which does not meet the
requirements of the definitions and articles of the Plan.
She cited an arbitration decision of S. Bruce Outhouse, Q.C.
dated May 18, 2001 on very similar facts and the decisions
of Mr. Justice W. Winkler in Parsons et al v. The Red Cross
Society [1999] O.J. No. 3572 and following.
8. I reject the Claimant's submissions for the following
reasons:
(a) The Claimant cannot bring his claim within the definition
of a "Class Period" in the 1986 - 1990 Hepatitis
C Settlement Agreement and the Transfused HCV Plan which
is "the period from and including January 1986 to and
including 1 July, 1990" or the definition in the Transfused
HCV Plan of "Primarily Infected Person" which
is " a person who received a Blood Transfusion in Canada
during the Class Period".
(b) Moreover, he cannot provide the proof required by Article
3.01 of the Transfused HCV Plan that as a person claiming
to be a Primarily Infected Person he could provide the Administrator
with medical "records demonstrating the claimant received
a Blood Transfusion in Canada during the Class Period".
(c) Finally, a Referee has no authority to alter or disregard
the terms of the Plans.
9. While it is not necessary to my decision, I also conclude
the Claimant's submissions are unfounded.
10. A careful reading of the reasons for judgment of Winkler,
J. in Parsons et al v. Canadian Red Cross Society
[1999] O.J. No. 3572 at page 5, paragraph 25, reveals that
the selection of the date for the Class Period at January
1, 1986 and July 1, 1990 was not arbitrary. It was based on
the decision of Canadian Red Cross Society and Canadian Blood
Supply not to conduct testing of blood donations to the Canadian
Blood Supply in the interval of time between the widespread
use of surrogate testing in the United States and the universal
adoption of the Chiron HCV Test in Canada.
11. Secondly, while the Claimant did not know he was infected
with Hepatitis C when the Plan was approved by the Court,
it is evident from the decision of Winkler, J. (supra) at
page 17, paragraph 77 that various interveners and objectors
had put forth social and political concerns about the settlement
during the argument on August 19 - 21, 1999. The Court concluded
that any of those concerns that were extralegal remained outside
the ambit of the Court's review of the settlement. Those concerns
are then equally outside the ambit of a Referee's review.
12. Finally, in his reasons for judgment in Parsons et
al v. Canadian Red Cross Society, [2000] O.J. No.
4457, at page 7, paragraph 28, Winkler, J. pointed out that
a claimant who produced evidence of an infection of Hepatitis
C and receipt of a blood transfusion within the Class Period
established a prima facie entitlement to compensation.
However, compensation could be denied if the Administrator
could establish on a balance of probabilities that the claimant
was not infected with HCV for the first time within the Class
Period. Thus the operation of the Plan is intended to evaluate
each case for sufficiency of evidence of infection by transfused
blood within the Class Period and to exclude all persons who
probably were infected outside the Class Period.
13. Accordingly, I uphold the Administrator's denial of the
Claimant's request for compensation.
DATED at Edmonton, Alberta, this 31 day of May, 2001.
Shelley L. Miller, Q.C.
Referee
J U D I C I A L D E C I S I O N
Judge Winkler's Decision - February 11, 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 May 31, 2001:
1. The Administrator denied the Claimant's claim for compensation
under the Agreement on March 19,2001.
2. A hearing was held by the referee on May 25, 2001 during
which, in addition to adducing oral evidence, the parties
produced correspondence and submissions in writing and by
way of videotape.
3. The following facts were undisputed:
(a) The Claimant is infected with Hepatitis C;
(b) The infection was probably the result of a blood transfusion
the Claimant received, during the only hospitalization of
his life, on May 31, 1985 at the Royal Alexandria Hospital
in Edmonton, Alberta;
(c) The Claimant received no blood transfusions during the
period from January 1, 1986 to and including July 1, 1990;
(d) The Claimant was not diagnosed with Hepatitis C until
January 2000.
4. Further, the Claimant did not argue on the appeal that
he fell within the Class Period as defined in the Agreement.
Rather his argument was one based on equitable considerations,
as he stated, in essence, that it was unfair to exclude him
from the compensation available under the Agreement.
5. The Claimant was invited to make additional submissions
on appeal. The additional material received from the Claimant
indicate that he is still relying on an argument based in
equity.
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 referee denied the claim on the basis that the Claimant
was not, on the evidence, a member of the class entitled to
receive compensation. Further, despite whatever sympathy the
referee may have had for the Claimant's position, she determined
that she was unable to "to alter or disregard the terms
of the Plan".
8. It was undisputed that the Claimant did not receive a
transfusion of blood during the Class Period. As a result,
he was not entitled to receive compensation under the terms
of the Agreement. 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. Those
classes are defined temporally as those persons infected between
January 1, 1986 and July 1,1990. Persons whose claims are
based on transfusions outside that period are not eligible
for compensation and, accordingly, the court's equitable jurisdiction
does not extend to permitting it to award compensation to
those persons.
Result
9. In my view, the referee committed no errors in principle,
with respect to jurisdiction or by misapprehending the evidence
before her. Accordingly, the referee's decision is confirmed.
______________________
Winkler J.
Released: February 11, 2003
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