Appeals: Confirmed Referee Decisions : #149 - June 15, 2004

Decision of the Court having jurisdiction in the Class Action attached - December 15, 2004

D E C I S I O N

The Claimant submitted a Claim under the Transfused HCV Plan.

The Claimant, who was born in August 1921, argues in the documentation submitted to the 1986-1990 Hepatitis C Class Action Settlement Administrator that she received a blood transfusion while hospitalized at the Hôpital du Sacré‑Cœur in Montreal, during the month of October 1989. The Claimant also argues, with medical evidence in hand, that she was subsequently diagnosed with an HCV infection.

The fact that the Claimant received a transfusion on October 12,1989 is confirmed by documentation provided by the health center and was not challenged by the Fund Counsel. Also, the Administrator does not challenge the fact that the Claimant was HCV infected.

However, the Fund Administrator informed the Claimant by letter dated December 12, 2003, that there was insufficient evidence that her first HCV infection had occurred during the Class Action Period and that her claim was therefore rejected. It is on the basis of that decision that the Claimant is submitting a Request for Review and that I must now render my decision as a Referee.

The Claimant indicated that she considered that all applicable documentation had already been sent to the Administrator and I am asked to render my decision on the basis of such documentation, without holding a hearing in that matter.

Therefore, the Claimant received a transfusion at the Hôpital du Sacré-Cœur on October 12, 1989, and documents to that effect on the hospital center file are complete and have facilitated the identification and possibly the donor's traceback.

Tests completed by Héma-Quebec on this donor proved to be negative. In fact, the letter signed by Dr Gilles Delage, MD, MSc., first Medical Director at Héma-Quebec and the attached traceback report confirm that the donor gave blood eighteen times between June 5, 1990 and August 18, 2003, and that all tests, whether the ortho 1.0 test (2 blood donations), the ortho 2.0 test (4 donations) and the ortho 3.0 test (12 donations) proved out to be negative. Subsection 3.04 (1) of the Transfused HCV Plan 1986 - 1990 provides that if the traceback results reveal that none of the donors is or was anti-HCV positive, the Administrator must reject the Claim of that HCV Infected Person.

Subsection 3.04 (2) provides that, notwithstanding the traceback results, the Claimant can prove, in certain circumstances, having been infected for the first time, following a transfusion. In this case, the Claimant submitted no evidence to that effect.

Having reviewed the file thoroughly, it seems evident to me that the Claimant has not established that she had contracted HCV following the blood transfusion received in 1989, and that the Administrator had no alternative but to reject the Claimant's argument that she had been HCV infected.

As mentioned in various previous decisions, the Referee, as well as the Administrator do not have any discretionary power to approve a Claim or a Request for Review, if the required evidence under the Agreement has not been provided. As Referee, I cannot modify, ignore or contradict the terms, conditions or modalities of the Agreement.

I must therefore conclude that the Claimant did not demonstrate that her illness had been contracted following the transfusion that she received in 1989. The decision to reject the current Claim is therefore well founded and I reject the Request for Review.

MONTREAL, June 15, 2004,

Jacques Nols

Referee

J U D I C I A L D E C I S I O N

Judge Morneau's Decision - December 15, 2004

SUPERIOR COURT
CANADA
PROVINCE OF QUEBEC
DISTRICT OF MONTREAL

NO: 500-06-000016-960

DATE: December 15, 2004

_________________________________________________________________________

PRESIDING JUDGE: THE HONORABLE NICOLE MORNEAU, SCJ _________________________________________________________________________

DOMINIQUE HONHON
Petitioner
V.
ATTORNEY GENERAL OF CANADA
AND
ATTORNEY GENERAL OF QUÉBEC
AND
THE CANADIAN RED CROSS SOCIETY
Defendants

AND
CLAIMANT NO 12347
APPELLANT

_________________________________________________________________________

JUDGMENT TO REEXAMINE A REFEREE'S DECISION
1986-1990 Hepatitis C Settlement Agreement Transfused Plan

_________________________________________________________________________

[1] The Claimant appeals the Referee's decision rejecting her Request for review of the Administrator's decision refusing her claim for compensation under the 1986-1990 Hepatitis C Settlement Agreement, on the basis that she had not provided sufficient proof that her first HCV infection had occurred during the Class Period, pursuant to the Agreement, that is, between January 1,1986 and July 1, 1990.

[2] In the Superior Court as well as before the Referee, the Appellant stated that she estimated that all relevant documentation had been sent to the Administrator and was requesting that a decision be made on the basis of this submission, without holding a hearing in the matter.

[3] Let us emphasize immediately that the Claimant's HCV infection is not disputed, nor that she received a blood transfusion on October 12, 1989 at the Hôpital Sacré-Coeur de Montréal.

[4] In fact, it is recognized that the hospital center documentation is complete and that the donor has been traced back. It is also mentioned that he has even donated blood 18 other times, between June 5, 1990 and August 18, 2003, and that all his tests proved to be anti-HCV negative.

[5] According to the wording used by the Claimant in her Request for review, it is clear

that she understood that this donor would have donated blood "since June 5, 1990". She concluded erroneously, since she received her transfusion on October 12, 1989.

[6] Yet, the evidence shows that after having given the blood received by the Claimant on October 12,1989, the same donor gave blood 18 other times after June 5, 1990, which explains the reference to the negative results of the tests that were administered subsequently, since they confirmed that the donor was not an HCV carrier.

[7] Therefore, it must be recognized that the Claimant has not established that she had been HCV infected as a result of a blood transfusion received during the Class Period pursuant to the Agreement. Her request must therefore be rejected.

[8] As mentioned by the Referee, and despite the sympathy that we can have for HCV Infected people, we do not have any discretion to approve a claim or a Request for review nor an appeal, if the required proof has not been provided, pursuant to the Agreement. The Superior Court must apply the same rules.

ON THAT GROUND, THE COURT:

ALLOWS the Administrator's and the Referee's decisions;

REJECTS the appeal;

ALL THIS, without costs

ORIGINAL SIGNED BY NICOLE MORNEAU, SCJ

Me Catherine Mandeville
MCCARTHY TÉTRAULT
Fund Counsel

Claimant No. 12347

Me Michel Savonitto, in his quality of Member of the Joint Committee
MARCHAND MELANÇON FORGET

Hearing Date: June 22, 2004