Appeals : Confirmed Referee Decisions : #68 - November 12, 2002

Decision of the Court having jurisdiction in the Class Action attached - May 27, 2003

D E C I S I O N

Following the refusal by the Administrator of the Plan ("the Administrator") on November 30, 2001, the Claimant filed a request for review of the aforementioned decision with the undersigned as referee. Essentially, the motives of the Claimant's request for review are based, according to him, on the absence of a certain other risk factor related to his disease. In this regard, he bases his request on the content of his "medical record" and on the statements of his "treating physicians". On submitting documents to the undersigned, he referred to "partial destruction of some lab tests in his medical record, prior to 1991". This fact is also confirmed by a letter from the Archives Department of the Centre de santé Sainte-Famille dated October 19, 2000. According to the Medical Archivist concerned, this weeding of files would have been conducted in compliance with the Archives Act. It is not for the undersigned to debate this specific matter.

The study of this matter thus proceeded on the basis of the record currently constituted to which were added various complementary material submitted by the Claimant last January. All this new material was also forwarded to the Administrator's Fund Counsel. The parties having waived the right to a hearing, I closely reviewed all material and documents on file and took into consideration the written version submitted to me by the Claimant as well as the arguments submitted by the Administrator's Fund Counsel.

Based on evidence provided, it is clear that the Claimant is HCV infected, as diagnosed in 1994. Further, during the period covered by the 1986-1990 Hepatitis C Settlement Agreement ("Settlement Agreement"), he received blood transfusions. As I understand, the Claimant would have been transfused thirteen (13) units, and six (6) other units would have been prepared for him, but not transfused. All these units were submitted for a Traceback and all donors tested negative on the HCV Antibody Test.

As a first step, the Canadian Red Cross Society confirmed, in a letter dated June 20, 1996, having completed a Traceback on thirteen (13) donors involved in the blood transfused to the Claimant. Subsequently, on December 18, 2000, Héma-Québec confirmed by letter that even the six (6) other donors of the non-transfused units were also traced back and tested. Results indicated that the nineteen (19) tested negative. The Traceback Procedure used seems to comply with Section 3.04 of the Transfused HCV Plan.

3.04 Traceback Procedure

1. Notwithstanding any other provision of this Agreement, if the results of a Traceback Procedure demonstrate that one of the donors or units of Blood received by a HCV-Infected Person or Opted-Out HCV Infected Person before 1 January 1986 is or was HCV antibody positive or that none of the donors or units of Blood received by a Primarily-Infected Person or Opted-Out Primarily Infected Person during the Class Period is or was HCV antibody positive, subject to the provisions of Section 3.04(2), the Administrator must reject the Claim of such HCV Infected Person and all Claims pertaining to such HCV Infected Person or Opted-Out HCV Infected Person including Claims of Secondarily-Infected Persons, HCV Personal Representatives, Dependants and Family Members.

2. A claimant may prove that the relevant Primarily-Infected Person or Opted-Out Primarily-Infected Person was infected, for the first time, with HCV by a Blood transfusion received in Canada during the Class Period or that the relevant Secondarily-Infected Person or Secondarily-Infected Person who opted out of the Class Action in which he or she would otherwise be a Class Member was infected for the first time with HCV by his or her Spouse who is a Primarily-Infected Person or Opted-Out Primarily-Infected Person or Parent who is a HCV Infected Person or Opted-Out HCV Person, notwithstanding the results of the Traceback Procedure. For greater certainty, the costs of obtaining evidence to refute the results of a Traceback Procedure must be paid by the claimant unless otherwise ordered by a Referee, Arbitrator or Court.

In the Claimant's view, this does not explain the cause of his infection and according to him, "these tests are not 100% reliable". Nonetheless, these were duly conducted and no proof has been provided to modify the scope of the conclusions in this case. To that effect, a comment regarding the Claimant's allegations relative to the burden of proof is in order. The Claimant wrote and I quote: "In her decision (Honorable Justice Nicole Morneau, JSC), it is clearly written that victims should not have to contend with the burden of proof". A careful reading of Honorable Justice Nicole Morneau's decision calls for some qualifications of the conclusions that the Claimant seems to draw from it. If it is true that in her decision, Honorable Justice Morneau shows a clear concern to resolve certain difficulties related to the burden of proof and this, in favor of the victims, however, she does not dismiss the results of a duly conducted Traceback according to Section 3.4 previously quoted.

In this case, an unchallenged proof satisfactorily establishes that blood transfusions are not the cause of the infection for which the Claimant is the unfortunate victim. One cannot easily conceive that absence of clear evidence regarding the origin of this infection can be incomprehensible for the Claimant, but this does not mean that the Administrator's decision was not substantiated in this case. On the contrary, the Administrator's decision of November 30, 2001 complies with the provisions of the Transfused HCV Plan (Appendix A).

Consequently, based on the above, this request for review is rejected.

Montreal, November 12, 2002

___________________________
Martin Hébert, Referee

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

Judge Morneau's Decision - May 27, 2003

[2] The Administrator and Referee's decisions are based on the results of the Traceback conducted on the donors of 13 units of blood transfused to the Claimant between November 6 and December 6, 1989. In fact, they all came out negative further to the HCV Antibody Test. The same applies to the 6 other units prepared for him. Even though the units were not transfused, they were still submitted to the HCV Antibody Test. The results also came out negative.

[3] The Appellant raises doubts about the results of the tests conducted by the Canadian Red Cross Society. He does not trust them. He fears that he is the victim of falsely negative results or of negative results based on antibody tests, which would have been conducted during a period said to be "quiet". He requested that the traceback be done over again by Héma-Québec in order to conduct new more thorough tests. He claims that his request was rejected because it would have been too costly to do so. He is insistent before the Undersigned. He wants the Court to order Héma-Québec to repeat the Canadian Red Cross Society's Traceback Procedure.

[4] The Appellant's situation is a difficult one. He is ill. He has already received a Liver Transplant. The Transplant is infected. He is convinced that he was infected with the Hepatitis C Virus during the blood transfusions he received in 1989.

[5] However, it was observed during the audition that the traceback that the Appellant was requesting had already been conducted by Héma-Québec after 1996. We also found out that the donors involved were regular donors who repeatedly gave blood after 1989. Their blood was tested each time. All results remained negative.

[6] Even if the Appeal's process before the Superior Court allowed him to do so, the Appellant did not identify witnesses or documents that could have supported his allegations. During the audition of his appeal , he reiterated the arguments that can be found in his file and in his Appeal's Notice of February 18, 2003.

[7] This case raises questions that are identical to those raised by Claimant number 1300593 before Mr. Justice Ian Pitfield, in British Columbia. Claimants do not accept traceback procedures' negative results. They insist that they be conducted over again. In either case, they do not bring any additional evidence justifying the rejection of traceback results.

[8] Like the British Columbia case, this appeal must be rejected because nothing supports the evidence that the Claimant meets the Settlement Agreement's requirements and qualifies under the terms of the Transfused HCV Plan.

[9] To this effect, the Court accepts Mr. Justice Pitfield's statements in the case mentioned above. There are good reasons to be reminded of their content since it seems that in the present case also, a more in-depth discussion could provide a better understanding of the 1986-1990 Hepatitis C Settlement Agreement as well as the meaning and purpose of its Section 3.04 as well as of all the Appeal's Process.

[10] We therefore have to examine what an HCV infected Claimant can do to support his claim for compensation when appealing a decision rejecting his claim for compensation under the terms of the Agreement, due to negative traceback procedure conclusions.

[11] The facts related to the current case can be summarized as follows: the Claimant was transfused 13 units of blood in Quebec between November 6 and December 6, 1989. In 1994, he is diagnosed as being HCV positive. His health deteriorates. He cannot work. In May 2000, he submits a claim for compensation to the Administrator further to the 1986-1990 Hepatitis C Settlement Agreement. Since all test results of the HCV Antibody Test conducted on 13 real donors and 6 potential donors were all negative, the Administrator requests additional evidence which would allow him to establish a link between the infection and such blood transfusions.

[12] The Claimant replies by insisting on the fact that he sees no other explanation, as he is unaware of any other risk factor. He asks that the aforementioned Traceback Procedure be conducted again without submitting additional evidence.

[13] Further to the Administrator's final decision to reject his claim on November 30, 2001, he forwards a Request for Review before a Referee. The latter examines the Claimant's file and written arguments. On November 12, 2002, he confirms the Administrator's decision.

[14] Given the results of the Traceback Procedure, the Administrator had no other choice. He had to reject the Claimant's request. In fact, Section 3.04 provisions are as follows:

3.04 Traceback Procedure

1. Notwithstanding any other provision of this Agreement, if the results of a Traceback Procedure demonstrate that one of the donors or units of Blood received by a HCV-Infected Person or Opted-Out HCV Infected Person before 1 January 1986 is or was HCV antibody positive or that none of the donors or units of Blood received by a Primarily-Infected Person or Opted-Out Primarily Infected Person during the Class Period is or was HCV antibody positive, subject to the provisions of Section 3.04(2), the Administrator must reject the Claim of such HCV Infected Person and all Claims pertaining to such HCV Infected Person or Opted-Out HCV Infected Person including Claims of Secondarily-Infected Persons, HCV Personal Representatives, Dependants and Family Members.

2. A Claimant may prove that the relevant Primarily-Infected Person or Opted-Out Primarily-Infected Person was infected, for the first time, with HCV by a Blood transfusion received in Canada during the Class Period or that the relevant Secondarily- Infected Person or Secondarily-Infected Person who opted out of the Class Action in which he or she would otherwise be a Class Member was infected for the first time with HCV by his or her Spouse who is a Primarily-Infected Person or Opted-Out Primarily-Infected Person or Parent who is a HCV Infected Person or Opted-Out HCV Person, notwithstanding the results of the Traceback Procedure. For greater certainty, the costs of obtaining evidence to refute the results of a Traceback Procedure must be paid by the Claimant unless otherwise ordered by a Referee, Arbitrator or Court.

[15] Section 3.04(1) applies, notwithstanding all other provisions of this Agreement subject to the provisions of Paragraph 2. Section 3.04(1) provides that the Administrator must reject a claim for compensation in either of the following cases: 1) if the Claimant has received blood before January 1, 1986 and the HCV Antibody Test reveals that the donor of this transfused blood was HCV infected; or 2) if the Claimant received one transfusion or more during the Class Action Period but that the VHC Antibody Tests reveal that none of the donors of this transfused blood were Anti-HCV Positive.

[16] Section 3.04(2) provides for an exception to Section 3.04(1). In fact, a Claimant can prove that he was HCV infected for the first time through a blood transfusion received during this Class Action Period. But the Settlement Agreement remains silent as to the burden and nature of proof needed to refute the Traceback Procedure's results.

[17] The wording of Section 3.04 (1) merits some observations. Firstly, the main argument provided in the Settlement Agreement to establish Claimant's Eligibility resides in the fact that he has received an infected blood transfusion during the Class Action Period. However, receipt of an infected blood transfusion during the Class Action Period is not sufficient to establish the Claimant's eligibility, if he had also received an infected blood transfusion before the Class Action Period, that is, before January 1, 1986. In addition, a person who is HCV positive is not eligible prima facie, if the Traceback Procedure conducted on blood transfusions that he has received during the Class Action Period demonstrate that none of the donors of such blood units tested positive on the Anti-HCV Test.

[18] While HCV Infected Persons, who have been refused compensation under the Agreement, pursuant to Section 3.04, can feel frustrated, it should be noted that the Settlement Agreement had been recommended by all parties' Solicitors and approved by the British Columbia, Ontario and Quebec Courts involved in this reference. They also approved the Traceback Procedure through which eligibility must first be established.

[19] Since tests to determine the presence or absence of HCV antibodies were not conducted during the Class Action Period, the Protocol provided for measures to be followed in order to identify blood donors and units of blood transfused to a Claimant during the Class Action Period, whether or not such donors had given blood after that period, whether or not these new transfused blood units had been tested to detect HCV antibodies and whether the results of such tests had been positive or negative. If it was not possible to identify a donor, or that such a donor had not given any blood after that period, that results of tests related to his last blood donations were not available, or that test results demonstrated the presence of HCV antibodies, the Claimant was eligible for compensation.

[20] The Protocol related to traceback tests was developed using the latest scientific research available at the time. The Settlement Agreement and the Protocol were approved by the Class Action Solicitors, by the Defendants and by the Courts. The Protocol was considered to be the best means of establishing a link between HCV infections and blood transfusions for the Settlement Agreement to provide compensation.

[21] While the first instrument to determine eligibility to a compensation under the Agreement is the Traceback Procedure, it was provided that a Claimant could, in an Appeal's Process, bring evidence to support his allegation of having been infected for the first time during the Class Action Period and this, regardless of the Traceback Procedure's negative results.

[22] The undersigned also shares the opinion of Mr. Justice Pitfield to the effect that Section 3.04 (2) does not allow a Claimant to conduct his own traceback. This Section rather provides that there could exist evidence, which would establish that the infection source, based on the balance of probabilities, would result from a transfusion received during the Class Action period. In order to provide such evidence, it is not sufficient for a Claimant to argue that a small percentage of the population can be infected with HCV through other unknown sources. If such an answer was accepted and a contrario, a Claimant would never be able to refute the traceback results, since he would never be able to argue that he was not part of this small percentage of the population thus infected by an unknown source.

[23] The type of evidence that a Claimant could be required to provide during an appeal would at least include his personal medical and family history as well as detailed evidence of all aspects of his life-style, including evidence that he has not been infected by needles or injections, regardless of the reasons for which they were used. This list is not exhaustive and tends rather to show the procedure that must be followed when one wants to refute the results of a Traceback Procedure.

[24] While one can feel spontaneous sympathy for the Claimant's situation, a simple denial by him of a personal life episode or acts identified as potential HCV infection sources remains highly insufficient. One should be able to verify the reliability of his arguments through the use of known means of providing objective evidence. The negative results of tracebacks conducted in compliance with the Protocol constitute one of these objective proofs. With such results before us, cross-evidence would have to be very comprehensive and very persuasive to refute the traceback procedure's results.

[25] In this case as well as in the one submitted to Justice Pitfield, the Claimant did not provide any evidence to the Administrator, to the Referee and to the Undersigned which could come close to the arguments needed to reject the negative results provided based on the application of the Traceback Protocol. Consequently, the Court has no other choice but to reject the Request for Review and to confirm the Referee's decision.

BASED ON THE ABOVE ARGUMENTS, THE COURT:

REJECTS the Request for Review;

CONFIRMS the Referee's decision;

WITHOUT COSTS.

Original Signed by hand
NICOLE MORNEAU, JCS

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

Me Nathalie Drouin
CÔTÉ OUELLET
Defendant's Solicitor, Attorney General of Canada

Me Robert Monette
NERBARD ROY & ASSOCIÉS
Defendant's Solicitor, Attorney General of Quebec

Me Mason Poplaw
McCARTHY TÉTRAULT
Fund Counsel

Claimant Number 1200273

Audition Date: March 27, 2003

c.c. Lucie Savoie, Assistant Registrar