Appeals : Confirmed Referee Decisions : #12 - June 27th, 2001

Decision of the Court having jurisdiction in the Class Action attached - April 4, 2003

D E C I S I O N

Introduction

Claimant 1400893 from the Province of Ontario submitted a claim as a primarily infected person under the HCV Transfused Plan. The claim was denied on the basis that she did not receive a transfusion of "blood" as defined by the Settlement Agreement.

Facts

It appears that Claimant 1400893 from the Province of Ontario received Gammaglobulin on a monthly basis. This product is derived from pooled stored human plasma.

The definition of Blood for the purpose of the Plan is 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%, Factor VIII, Porcine Factor VIII, Factor IX, Factor VII, Cytomegalovirus Immune Globulin, Hepatitis B Immune Globulin, Rh Immune Globulin, Varicella Zoster Immune Globulin, Immune Serum Globulin, (FEIBA) FEVIII Inhibitor Bypassing Activity, Autoplex (Activate Prothrombin Complex), Tetanus Immune Globulin, Intravenous Immune Globulin (IVIG) and Antithrombin III (ATIII).

Gammaglobulin is an excluded blood product, under the definition.

A Dr. Growe, Medical Director, Blood Transfusion Service at Vancouver General Hospital, reviewed the file and by letter of June 1st, 2001, concluded that Gammaglobulin does not fall under the category of "blood" as outlined in the settlement plan.

Decision

I can understand that Claimant 1400893 from the Province of Ontario may well consider the decision of the Administrator to be unfair. I must, however, conclude that the Administrator properly determined that she is not entitled to compensation under the plan.

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Dated at Toronto on this 27th day of June, 2001.
The Hon. R. E. Holland, Q.C.
Referee

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

Judge Winkler's Decision - April 4, 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 and record provided to the court on this motion:

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 Ontario.

3. The following facts are undisputed:

(a) The Claimant is infected with Hepatitis C;

(b) In the period from 1978 to 2000, the Claimant received approximately 285 transfusions of IV gammaglobulin;

(c) The Claimant's treating physician confirmed that the Claimant did not receive any other blood product;

4. The Claimant died before this motion was filed. It has been filed by her husband, the executor of her estate. He was invited to make additional submissions in support of the motion but has not submitted any material that indicates that the Claimant received a blood transfusion other than gammaglobulin in the Class period. The additional submissions that were made argue that there is an inequity in the terms of the Settlement Agreement because of the express exclusion of the IV gammaglobulin from the definition of Blood.

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 Administrator properly determined that she is not entitled to compensation under the Plan".

8. This case concerns the same blood product that was at issue in File No. 00000527. The motion to oppose confirmation of the referee's report in respect of that claim was dismissed. Paragraph 8 of the reasons for the decision regarding that claim is applicable to the present motion. It states:
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 him. Accordingly, the referee's decision is confirmed.

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Winkler J.

Released: April 04, 2003