Appeals : Confirmed Referee Decisions : #65 - July 26, 2002

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

D E C I S I O N

This is an appeal by Claimant #4521 who was denied compensation as a Secondarily-Infected Person. The application indicates that the Primarily-Infected Person is the son-in-law of the claimant.

"Secondarily-Infected Person" is defined in the Settlement Agreement as:

(a) A Spouse of a Primarily-Infected Person or Opted-Out Primarily-Infected Person who is or was infected with HCV by such Primarily-Infected Person or Opted-Out Primarily-Infected Person provided the Claim of the Spouse is made:

…

(c) A Child of a HCV Infected Person or Opted-Out HCV Infected Person who is or was infected with HCV by such HCV Infected Person or Opted-Out HCV Infected Person;

The claimant is not the spouse or child of a Primarily-Infected Person and, therefore, does not fall within the definition.

With regret, I must uphold the rejection of the Administrator.

There is no discretion vested in the Administrator or the Referee. The appeal is, therefore, dismissed.

Dated at Toronto, this 26th day of July 2002.

The Honourable Robert S. Montgomery 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

WINKLER J.:

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 July 26, 2002:

1. The Administrator denied the Claimant's claim for compensation under the Agreement on October 29, 2001.

2. A hearing was held by the referee on July 5, 2002.

3. The following facts were undisputed:

(a) The Claimant is infected with Hepatitis C;

(b) She was not infected by a blood transfusion.

4. The Claimant resides with her daughter and son-in-law. Her son-in-law is a Primarily-Infected Person as defined under the Settlement Agreement. She claims on the basis that since there is no other known reason for her infection with Hepatitis C, it must have occurred through her daily contact with her son-in-law, or possibly her daughter who, based on the Claimant's submissions, also appears to be infected with Hepatitis C as well. In support, she provides an article obtained from the Internet website "familydoctor.org" that indicates that Hepatitis C may be transmitted by sharing of personal items such as razors or toothbrushes.

Standard of Review

6. In a prior decision on a motion to oppose confirmation of a referee's 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 Claimant's position is that she is a secondarily infected person, having contracted Hepatitis C from someone who was directly infected by a blood transfusion. The basis for this claim is substantially the same as that put forward by the claimant in File No. 00000192. There, as here, the evidence presented on the application and at the appeal did not necessarily establish the connection between the Primarily-Infected Person and the infection of the claimant. However, as determined in File No. 00003192, the real difficulty with a claim presented on this basis is that only certain classes of persons infected by secondary means are eligible for compensation under the Plan. Accordingly, "Secondarily Infected Person" is a defined term under the Plan that is restricted to Spouses and or Children of Primarily-Infected Persons. Since the Claimant is not a Spouse or a Child of the Primarily-Infected Person, she is not eligible for compensation under the Plan.

8. In the Claimant's additional submissions she states that she has lived with her daughter and son-in-law, both of whom now appear to be infected with Hepatitis C, since 1966. As a result, she considers herself "closer than a spouse or child and [to] have had more opportunity to be exposed to the virus". She argues that her situation is unique and that entitlement shouldn't be dealt with on a basis of set definitions but rather that each case should be determined on its own facts. This is essentially an argument based in equity. However, as stated in an earlier decision "it must be remembered that the Settlement Agreement is not a general compensation scheme for all persons infected with Hepatitis C. Rather, it is an agreement reached in the context of class proceedings brought to advance the claims of a particular class or classes of Canadians who were infected with Hepatitis C through the blood system." Accordingly, it is beyond the court's jurisdiction to give effect to the Claimant's equitable argument on this motion.

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.

______________________
Winkler J.

Released: April 4, 2003