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Appeals : Confirmed
Referee Decisions : #4 - June 1st, 2001
Decision of the Court having jurisdiction
in the Class Action - November 27th, 2001
R E F E R E E D E C I S I O N
June 1st, 2001
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 on the basis that the Claimant did not provide sufficient
evidence to support her claim that she received blood during
the Class Period.
3. The Claimant requested that a Referee review the decision
of the Administrator.
Facts
4. In 1997, the Claimant was diagnosed with Hepatitis C.
She initially thought that she was infected from a 1992 blood
transfusion. When she subsequently learned that this was not
the case, the Claimant reviewed her previous hospital admissions
in an effort to identify the source of her infection.
5. Prior to 1992, the Claimant had been hospitalized on a
number of different occasions for a variety of reasons. Based
on her recollection of her previous admissions, the Claimant
now believes that she contracted Hepatitis C during the 1989
Caesarean section birth of her daughter.
6. The Claimant was admitted to Doctor's Hospital on August
29, 1989, and was told that she had placenta previa and might
need a blood transfusion. She also thinks that prior to her
surgery, one of the doctors told her that she was to receive
a small amount of blood as a precautionary measure, but that
the transfusion would be stopped if it were not necessary.
The Claimant was unconscious during the birth of her daughter
and did not actually see blood being transfused at the time;
she does, however, distinctly remember seeing a bag of blood.
7. In support of her belief that she received blood in 1989,
the Claimant produced hospital records that indicate that
her blood was identified and cross-matched against units of
blood available in the hospital. She pointed out that the
lab work was requested 'A.S.A.P.'. The Claimant interprets
this request as an urgent demand for compatible blood products
during her surgery in order to begin a transfusion.
8. The Claimant's daughter has suffered from ill health since
birth, and has recently experienced an elevation in her ALT
levels. These health concerns have aroused additional concerns
regarding the circumstances surrounding her daughter's birth.
9. The Claimant's current physician completed the Treating
Physician Form that was submitted in support of this application.
When asked if the Claimant received a blood transfusion in
the Class Period, her physician responded affirmatively. Along
side his response, the doctor wrote, "see attached",
he did not append any further explanation of his response.
10. In support of the Administrator's decision, Fund Counsel
submitted that there was no documentation(1)
to demonstrate that the Claimant was transfused in 1989, or
at any other time in the Class Period. Moreover, the documents
that were provided indicate expressly and by implication that
no transfusion took place during the 1989 hospital admission.
The only evidence of blood products being transfused to the
Claimant was during her 1992 hospitalization, which is outside
the Class Period.
Analysis
11. 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.
12. In order to qualify as an eligible class member, there
are a number of factual elements that must be established.
In this case, the Claimant must demonstrate that she received
a blood transfusion in Canada in the period January 1, 1986
to July 1, 1990. She can do this by producing one of the approved
documents listed in the settlement, such as a medical or laboratory
record. Or, if the designated records are not available, she
can also prove her entitlement by supplying independent evidence
to support her claim. She could, for example, call the attending
physician as a witness, or some other individual who witnessed
the transfusion, so long as that person is not a family member.
The Claimant's own recollection that she received a transfusion,
or the recollection of someone in her family would not (2),
according to the terms of the settlement, be enough to substantiate
her claim.
13. Based on my review of the evidence in this case, and
bearing in mind the limitations that I have just outlined,
I cannot conclude that the Claimant received blood during
the Class Period. In response to the concerns raised by the
Claimant in this Reference, my reasons are restricted to her
suggestion that she received a blood transfusion in August
1989 (3):
a. The Operative Report prepared at the time expressly
states that "Transfusion was not necessary";
b. The Operating Room Record, Post Anaesthesia Record,
Recovery Room Nursing Report, Anaesthesia Records, and the
Discharge Summary are all silent where they would have recorded
details related to a blood transfusion had one been performed;
c. At the request of the Claimant, a hospital record search
was performed, and by letter dated January 18, 2001, the
Manager of the Blood Transfusion Laboratory confirmed that
the only transfusion record on file for the Claimant was
with respect to her 1992 admission. The Doctors Hospital
had no other record of her receiving any transfusions in
any of her hospital admissions, including the August, 1989
admission.
d. There was no other independent evidence that the Claimant
had been transfused in 1989. Her current physician did indicate
in the Treating Physician Form that the Claimant received
a blood transfusion in the Class Period. This physician,
however, was not in attendance at the 1989 surgery, and
did not substantiate his opinion in any way. His notation,
"see attached", presumably refers to the medical
documentation that accompanied the claim file. However,
as I have just reviewed, the medical documentation that
was forwarded to support this application does not in fact
identify any blood transfusion in the Class Period. There
was no additional evidence from this doctor to support his
conclusion.
e. At the time of her 1989 surgery, the Claimant did recall
seeing blood, and being provided with some details regarding
a blood transfusion. I must first note that the terms of
the settlement specifically limit a Claimant's opportunity
to establish their claim based solely on their own recollection.
In any event, the Claimant's evidence of the circumstances
surrounding the birth of her daughter is not sufficient
to convince me, on a balance of probabilities, that she
in fact received blood at this time. Her description of
what was said to her, and the identification and cross matching
of her blood is consistent with the possibility that she
might require a transfusion during surgery. It does not
establish that she did actually receive blood at this time.
Nor do the subsequent health difficulties experienced by
her daughter provide any proof that a blood transfusion
occurred.
The Claimant's evidence, when considered together with
all of the medical documents in this case, leads me to conclude
that blood was readied, as a precautionary measure, in case
a blood transfusion was necessary. Although blood products
were available for a transfusion, I am not satisfied that
a transfusion was ultimately required or in fact took place.
14. This Claimant is faced with an enormously difficult personal
circumstance. She is gravely ill, and she fears for her own
health and the health of her beloved daughter. The Claimant's
desire to obtain assistance, if it is available, is an understandable
human response to her situation.
15. The Claimant has experienced a number of painful losses,
and it is entirely natural for her to wonder how it is that
these misfortunes have fallen upon her. I can well understand
that she would consider all of the possible ways in which
she might have become infected with Hepatitis C. I can also
appreciate that some of these possibilities may seem more
likely to her than others. Nonetheless, as she has acknowledged,
there are other risk factors that may account for her illness
(4).
16. Unfortunately for the Claimant, speculation or doubts
regarding the source of her infection cannot, in this compensation
process, be relied upon to establish eligibility as a primarily
infected person. I must base my decision on the evidence that
was presented to me.
17. Based on the facts as I have determined them, I cannot
conclude that the Claimant is eligible for compensation under
the terms of the class action settlement. I am not satisfied
that this Claimant received a blood transfusion in the designated
Class Period, and I must therefore recommend that the decision
of the Administrator be upheld.
Dated June 1, 2001
________________________________________________
Reva Devins, Referee
Footnotes
1. The claimant arrived
at the hearing with numerous documents in addition to those
provided with her original claim. With the Claimant's permission,
all of these documents were reviewed by Fund Counsel to determine
if there was any other relevant information. Only one letter,
a record of transfusions performed at The Doctors Hospital,
was put into evidence. Production of this document was ordered
after its relevance was determined and production sought by
Fund Counsel.
2. See ARTICLE THREE
REQUIRED PROOF FOR COMPENSATION
3.01 Claim by Primarily-Infected Person
(1) A person claiming to be a Primarily- Infected Person
must deliver to the Administrator an application form prescribed
by the Administrator together with:
a. medical, clinical, laboratory, hospital, The Canadian
Red Cross Society, or Canadian Blood Services or Hema Quebec
records demonstrating that the claimant received a Blood
transfusion in Canada during the Class Period;
…
(2) Notwithstanding the provisions of Section 3.01 (1) (a),
if a claimant cannot comply with the provisions of Section
3.01(1)(a), the claimant must deliver to the Administrator
corroborating evidence independent of the personal recollection
of the claimant or any person who is a Family Member of
the claimant establishing on a balance of probabilities
that he or she received a Blood transfusion in Canada during
the Class Period.
3. With respect to this application,
the claimant did not argue that there were any other occasions
when she received blood products that would qualify her for
compensation. In any event, none of the documentation that
accompanied her claim would suggest that she did receive blood
products in the Class Period.
4. The claimant admitted,
and her physician confirmed, that she had used non-prescription
intravenous drugs in 1972.
D E C I S I O N of the Court having
jurisdiction in the Class Action
November 27, 2001
(On a motion to oppose confirmation of the decision of Referee
Reva Devins released June 1, 2001)
Reasons for Decision
WINKLER J. :
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, 1990. The Claimant has made a claim
for compensation which was denied by the Administrator overseeing
the implementation of the settlement. 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 Settlement 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 Claimant is infected with Hepatitis C. She made application
for compensation under the Settlement Agreement to the Administrator
jointly appointed by the courts in Ontario, Quebec and British
Columbia. However, the Claimant's application was rejected
by the Administrator. The decision of the Administrator was
based on the fact that the Claimant failed to provide acceptable
evidence of a blood or blood product transfusion within the
class period.
4. The Claimant appealed the decision of the Administrator.
The Settlement Agreement provides all claimants with a right
to have their appeal conducted as either a reference or an
arbitrator. In this case, the Claimant chose to have the appeals
conducted by way of a reference before Reva Devins, a designated
referee/arbitrator under the Agreement. Therefore, the Claimant
has the further right, under the Reference Rules, to bring
a motion opposing confirmation of the referee's decision.
I note that although the rights and the descriptions of the
triggering events are framed in language consistent with that
used in the normal rules of court, it is essential in dealing
with these appeals and subsequent motions to ensure that form
does not rule over substance. A simplified form has been developed
which permits claimants to notify the court of an intention
to oppose confirmation of a referee's decision in a summary
and expeditious manner. Nevertheless, in my view, simple notification
of an intention to oppose confirmation by a Claimant will
suffice to preserve their right even if a formal document
is not used. In the instant case, no formal document was submitted
to initiate the motion.
Issues
5. This is the first motion to oppose confirmation in respect
of a referee's decision. It therefore raises two issues, (a)
what is the appropriate standard for the court to use in reviewing
a decision of the referee and (b) should the referee's decision
on the appeal be confirmed by this court.
Standard of Review
6. The nature of the claims process itself provides a useful
context for determining the proper standard of appellate review
of the referee's decision. In that regard, it should be noted
that, initially, the claim process under the Settlement Agreement
is non-adversial. The Administrator has a mandate to ensure
that claimants are given assistance, if necessary, in presenting
their claims. Claims are only rejected where the evidence
presented by the claimant does not establish that he or she
is a class member entitled to compensation. However, the final
rejection or denial occurs only after a claimant has been
given every opportunity to correct deficiencies in his or
her claim.
7. After a claim has been denied, the claimant is entitled
to appeal the denial to an arbitrator or a referee as stated
above. In this case, the appeal was conducted as a reference.
There was an in-person hearing where the Claimant was given
an opportunity to present evidence, including her own testimony
and that of any witnesses she wished to call. In addition,
as part of the appeal procedure, all documents the Claimant
had provided to the Administrator in support of her claim
were forwarded to the referee by the Administrator. The Claimant
was also entitled to put additional documentation relating
to her claim before the referee.
8. In the circumstances, I am satisfied that the standard
of review for references as 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.) is the appropriate standard to be applied
where a rejected claimant opposes confirmation of a referee's
decision. As stated by Anderson J., 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
9. The referee denied the Claimant's appeal on the basis
that the Claimant did not provide evidence of a blood transfusion
within the class period as required under the Settlement Agreement.
The Claimant's testimony was that she had received a blood
transfusion during the class period in the course of a hospital
stay in 1989. However, the Claimant had no independent evidence
to verify her claim as required under the Agreement. Further,
as found by the referee, the Claimant's hospital and medical
records did not corroborate her evidence but rather was to
the opposite effect, expressly indicating that she had not
received a blood transfusion during her time in hospital in
1989. Under the terms of the Settlement Agreement, the recollection
of the class member or a person related to the class member
is not sufficient evidence to establish entitlement. In the
result the referee found that she was unable to conclude that
the Claimant had received a blood transfusion in the class
period. As this is an essential qualification for class membership
and compensation entitlement, the referee upheld the decision
of the Administrator and denied the Claimant's appeal.
Result
10. The Claimant was given the opportunity to provide additional
information and make further submissions on this motion. The
Claimant did not provide any additional evidence but did make
further submissions. I have reviewed those submissions, the
referee's reasons for decision and the documentary record.
I am not convinced that the referee made any errors in principal,
misapprehended the evidence or acted without jurisdiction.
Accordingly, the referee's decision is confirmed.
___________________________
WINKLER J.
Released: November 27, 2001
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