Appeals : Confirmed Referee Decisions : #6 - June 11th, 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 she had received a transfusion of blood within the Class Period as defined by the Settlement Agreement.

2. The Claimant requested an oral hearing by a Referee to review the Administrator's denial of her claim.

3. The hearing took place in Calgary, Alberta on June 5, 2001.

4. Neither party disputed the following facts:

(a) The Claimant received transfusions of IV gammaglobulin every three or four weeks since 1983 to the present at various hospitals in Alberta to control her condition of hypoglobulinemia.

(b) Gammaglobulin is manufactured from large pools of stored plasma from between several hundred to several thousand different donors. From this past pooling procedure, it has not been possible to trace back any individual donors retrospectively.

(c) The Claimant was tested and determined to be positive for Hepatitis C in February of 1996.

(d) In her initial application, her physician stated that she had received a blood transfusion within the Class Period.

(e) At the hearing, Carole Miller, a nurse who gave evidence on behalf of the Fund, testified that she communicated with the Claimant's physician who informed her that he did not read the definition of "Blood" when he gave the statement referred to in (d) supra, and that he was not aware that the Claimant received any blood product other than gamma globulin.

(f) Fund counsel produced a written opinion from Dr. G.H. Crowe to support the proposition that the blood product the Claimant received was excluded from the definition of blood contained in the Transfused HCV Plan.

(g) It is not possible to determine whether the infection occurred within or without the Class Period.

5. The definition of "Blood" contained in the Settlement Agreement provides 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 Prothombin Complex), Tetanus Immune Globulin, Intravenous Immune Globulin, (IVIG) and Antithromin III (ATIII)".

6. The Claimant submitted that she was infected with Hepatitis C from a gammaglobulin transfusion and considers it unfair that gammaglobulin users are treated differently from Hepatitis sufferers who received whole blood products.

7. Fund Counsel submitted that gammaglobulin is not contained in the definition of "Blood" under the Transfused HCV Plan and as such the Claimant is not eligible for compensation and further, neither the Administrator nor a Referee have any authority to alter the definitions under the Settlement Agreement.

8. I reject the Claimant's submissions for the following reasons:

(a) The Claimant cannot bring her claim within the definition of Blood contained in the 1986-1990 Hepatitis C Settlement Agreement or the Transfused HCV Plan since it excludes intravenous immune globulin (IVIG) also known as gamma globulin, the multiple donor product the Claimant received.

(b) While I am satisfied the Claimant contracted Hepatitis C by virtue of one of the gamma globulin transfusions, and I understand that she considers it unfair that she should be excluded from compensation, it is nevertheless clear that the Transfused HCV Plan was not intended to apply to all persons infected with Hepatitis C but was limited to a defined class of individuals.

(c) Finally, a Referee has no authority to alter or disregard the terms of the Plans.

9. Accordingly, I uphold the Administrator's denial of the Claimant's request for compensation.

DATED at Edmonton, Alberta, this 11 day of June, 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 June 11, 2001:

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

2. The referee conducted a hearing of the Claimant's appeal on June 5, 2001 in Calgary.

3. The following facts are undisputed:

(a) The Claimant is infected with Hepatitis C;

(b) Since 1983, the Claimant has regularly received transfusions of IV gammaglobulin every three or four weeks;

(c) Although the Claimant's treating physicial originally stated that she had received a blood transfusion within the Class Period, this statement was later clarified by the physician as meaning that the Claimant received only transfusions of IV gammaglobulin during the Class Period;

4. The Claimant was invited to make additional submissions on appeal but has not submitted any material that indicates that she received a blood transfusion other than gammaglobulin in the Class period.

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. In view of the fact that the blood product received by the Claimant during the class period is expressly excluded as a basis for compensation, The referee denied the appeal, holding that the Claimant could not "bring her claim within the definition of Blood contained in the 1986-1990 Hepatitis C Settlement Agreement".

8. The product received by the Claimant, gammaglobulin, is also known was Intravenous Immune Globulin. As noted by the referee, this product is expressly excluded from the definition of Blood under the Agreement. The consequence of the exclusion is that any person whose Hepatitis C infection is traceable to a transfusion of gammaglobulin is not entitled to receive compensation under the Agreement. Although the Claimant asserts that this is unfair, the fact remains that approval of claims based on blood products that are presently expressly excluded would require an amendment to the Agreement. Such an amendment is outside the jurisdiction of the court on a motion of this nature.

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