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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