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Appeals : Confirmed Referee Decisions : #7 - June 14th, 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 Claimant's request for compensation as a Primarily-Infected Person under 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 that the Administrator's denial of his claim be reviewed by a referee.

3. Both parties waived their entitlement to an oral hearing.

EVIDENCE

4. The Claimant did not file submissions but requested that the referee review all the material in his claim file from The 86-90 Hepatitis C Claims Centre.

5. Fund counsel, on behalf of the Administrator, filed written submissions on June 6, 2001 and copies of previously rendered decisions on June 7, 2001.

6. The relevant facts are not in dispute and can be summarized as follows:

(a) The Claimant is infected with Hepatitis C.

(b) The General Claimant Information Form indicates that the Claimant has received only one blood transfusion during his lifetime.

(c) The Claimant's Blood Transfusion History Form states that, on July 10, 1991, the Claimant received two units of blood while being treated for anaemia. The hospital medical records of July 10, 1991 indicate that the Claimant "has chronic active hepatitis".

(d) The Treating Physician's Form, which was signed by the Claimant's Treating Physician on June 15, 2000, confirms that the Claimant did not receive a blood transfusion during the Class Period.

ANALYSIS

7. The Claimant seeks compensation as a Primarily-Infected Person under the Transfused HCV Plan. The Transfused HCV Plan defines "Primarily-Infected Person", in part, as meaning "a person who received a Blood transfusion in Canada during the Class Period…".

8. The 1986-1990 Hepatitis C Settlement Agreement defines "Class Period" as meaning "the period from and including 1 January 1986 to and including 1 July 1990". "Class Period" is defined identically in the Transfused HCV Plan.

9. Article 3.01 of the Transfused HCV Plan requires that a person claiming to be a Primarily-Infected Person must deliver to the Administrator an application form together with, among other things, medical "records demonstrating that the Claimant received a Blood transfusion in Canada during the Class Period".

10. I find that the Claimant did not provide the evidence required by Article 3.01 to establish that he was infected as a result of a blood transfusion during the Class Period. Based on the evidence before me, the Claimant's only blood transfusion was on July 10, 1991, outside the Class Period. Therefore, the Claimant does not qualify as a Primarily-Infected Person and is not entitled to compensation under the terms of the Transfused HCV Plan.

11. The Administrator under the Settlement Agreement is required to administer the Transfused HCV Plan in accordance with its terms. The Administrator does not have authority to vary the terms of the Plan nor does an arbitrator or a referee when asked to review the Administrator's decision.

CONCLUSION

12. I uphold the Administrator's denial of the Claimant's request for compensation.

____________________________
JUDITH KILLORAN 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 14, 2001:

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

2. The appeal to the referee was in writing. The Claimant did not file any additional material at that time but asked the referee to review the claim file that he had submitted to the Administrator. The Fund Counsel, on behalf of the Administrator did file additional written submissions on June 6, 2001.

3. The following facts are undisputed:

(a) The Claimant is infected with Hepatitis C;

(b) The Claimant has received only one blood transfusion during his lifetime, being two units of blood on July10, 1991,while being treated for anemia;

(c) The Claimant received no 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 but has not submitted any material that indicates that he received a blood transfusion 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. The referee denied the claim on the basis that the Claimant "did not provide the evidence required by Article 3.01 [of the Transfused HCV Plan] to establish that he was infected as a result of a blood transfusion during the Class Period."

8. When the referee conducted her review of the Claimant's rejection by the Administrator, it was undisputed that the Claimant had not received a transfusion of blood during the Class Period. No new evidence has subsequently been provided by the Claimant that establishes that he did receive a transfusion of blood during the class period. Evidence of the receipt of blood or a blood product during the class period is a necessary prerequisite to obtaining compensation under the Settlement Agreement.

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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