Appeals : Confirmed Referee Decisions : #3 - June 1st, 2001

Decision of the Court having jurisdiction in the Class Action attached - February 11, 2003

D E C I S I O N

1. The Claimant has submitted an application for compensation as a primarily infected person under the HCV Transfused Plan.

2. By letter dated March 19, 2001 the Administrator denied her claim because she did not establish that she received blood, as defined by the Settlement Agreement, during the Class Period.

3. The Claimant requested that a Referee review the decision of the Administrator.

Facts

4. There was no dispute with respect to the facts in this matter. The Claimant acknowledged that the only blood product that she received during the Class Period was Rh Immune Globulin. Her physician, in completing the Treating Physician Form, stated that, having regard to the definition of blood contained in the Settlement Agreement, the Claimant did not receive a blood transfusion in the Class Period. He confirmed that she did receive Rh immune Globulin, a pooled, blood by-product.

5. At the hearing, the Claimant acknowledged that she understood the limits of the Settlement Agreement, however, she felt that she deserves to be compensated. She is convinced that she contracted Hepatitis C from a blood product, and she knows of no other way that she could have become infected. The Claimant was especially frustrated by the Plan's failure to incorporate the recommendations contained in the Krever report, which would have entitled her to compensation. She similarly found it unfair that some recipients of pooled products were eligible for compensation under the terms of the Agreement and she was not.

6. In support of the Administrator's decision, Fund Counsel submitted that Rh Immune Globulin is not considered a compensable blood product under the terms of the Plan. "Blood" is specifically defined, and the definition expressly excludes Rh Immune Globulin, along with a number of other blood by-products. Since the Claimant did not receive "Blood", as defined under the settlement, she is not eligible for compensation. In Fund Counsel's submission, neither the Administrator nor an Arbitrator have any authority to deviate from the eligibility requirements set out in the Court approved Settlement Agreement.

Analysis

7. The Claimant has applied for compensation under the terms of the Hepatitis C 1986-1990 Class Action Settlement, as approved by Court Order dated October 22, 1999. The terms of the settlement provide a detailed outline of who is eligible for compensation, and how eligibility can be proven.

8. In order to qualify for compensation as an eligible class member, there are a number of factual elements that must be established. In this case, to be accepted as a primarily infected person under the HCV Transfused Plan, the Claimant must first demonstrate that she received blood in the Class Period. Membership in the class is a pre condition of eligibility for compensation.

9. For the purposes of determining class membership, "Blood" is specifically defined under the terms of the Settlement Agreement as follows:

"Blood" means whole blood and the following blood products: packed red cells, platelets, plasma (fresh frozen and banked) and white blood cells. Blood does NOT include:

Albumin 5%, Albumin 25%, Factor VIII, Porcine Factor VIII, Factor IX, Factor VII, Cytomegalovirus Immune Globulin, Hepatitis B Immune Globulin, Rh Immune Globulin, Immune Serum Globulin, (FEIBA) FEVIII Inhibitor Bypassing Activity, Autoplex (Activate Prothrombin Complex), Tetanus Immune Globulin, Intravenous Immune Globulin (IVIG) and Antithrombin III (ATIII).

10. I must make my findings, and base my conclusion on the basis of what is required under the express terms of the Settlement Agreement. By the Claimant's own admission it is clear that she does not satisfy the eligibility requirements of the HCV Transfused Plan. Rh Immune Globulin is the only blood product that the Claimant received, and in determining eligibility for compensation, recipients of that product are specifically excluded.

11. I do not doubt that the Claimant contracted Hepatitis C in the manner that she has described, and I fully appreciate her dismay and disappointment with the definitions contained in the Settlement Agreement. Nonetheless, the Plan does not, and was never intended to apply to all persons infected with Hepatitis C. Compensation under the HCV Transfused Plan is limited to a defined class of individuals, and inevitably there will be some individuals, like the Claimant, who are infected with Hepatitis C but who are not entitled to receive compensation.

12. In determining eligibility for compensation under the terms of this settlement, I am limited by the conditions set out by the Order as approved by the Court. In this case, the only blood product received by the Claimant is explicitly excluded from the definition of "Blood". Based on the evidence before me I must therefore conclude that the Claimant has not met the eligibility requirements for compensation under the HCV Transfused Plan contained in the Hepatitis C 1986-1990 Settlement Agreement. I would therefore recommend that the decision of the Administrator be upheld.

Dated June 1, 2001

_______________________________________________
Reva Devins, 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 June 1, 2001:

1. The Administrator denied the Claimant's claim for compensation under the Agreement on March 19,2001.

2. The Claimant's appeal was argued before the referee.

3. The following facts are undisputed:

(a) The Claimant is infected with Hepatitis C;

(b) The Claimant acknowledged that the only blood product that she received during the Class Period was RH Immune Globulin. This was confirmed by the Claimant's treating physician;

(c) The Claimant received no other blood transfusions during the period from January 1, 1986 to and including July 1, 1990;

4. The Claimant was invited to make additional submissions on appeal. Those submissions do not provide any further evidence of a blood transfusion during the class period but rather advance an equitable argument regarding the exclusion of RH Immune Globulin from the definition of "blood" under the Settlement Agreement.

Standard of Review

6. In a prior 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 was claiming under the Transfused HCV Plan part of the Settlement Agreement. The referee denied the claim on the basis that the Claimant was not eligible for compensation under the Settlement Agreement because "the only blood product received by the Claimant [in the class period] is explicitly excluded from the definition of Blood".

8. In her appeal to the referee, the Claimant took the position that she was being unfairly treated by the exclusion of RH Immune Globulin from the definition of Blood in the Settlement Agreement. Accordingly, the Claimant argued that she should be compensated. However, the referee found that the terms of the Agreement were binding upon her, including the provision stipulating that certain blood products are excluded as a basis for compensation, and rejected the Claimant's appeal.

9. When viewed in this light, it is clear that the Claimant is really seeking an amendment to the Settlement Agreement itself. It is not disputed that she has contracted Hepatitis C, and it is probable that she contracted it from the RH Immune Globulin. However, given that this product is expressly excluded by the express terms of the Agreement as a basis for a compensation claim, absent an amendment to the Agreement, the Claimant cannot succeed. In short, the court simply does not have the jurisdiction to amend the Agreement in the manner sought by the Claimant.

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