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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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