IN THE MATTER OF AN APPEAL PURSUANT TO THE HEPATITIS C PRE-1986/POST-1990 CLASS ACTION SETTLEMENT AGREEMENT (McCarthy, et al. v. Canadian Red Cross Society Court File No. 98-CV-143334) BETWEEN Claimant File Claimant No. 08-13327 - and - The Administrator (On an appeal of decision of The Honourable D. McGillis released December 9, 2013) PERELL, J: Reasons for Decision Nature of the Appeal 1. This is an appeal of a decision of an Appeals Officer appointed under the Settlement Agreement in the pre-1986/post-1990 Hepatitis C litigation. Under the Settlement Agreement, persons infected with Hepatitis C in Canada through a blood or specified blood product transfusion prior to January 1, 1986 and from July 2, 1990 to September 28, 1998 are entitled to varying degrees of compensation. 2. The HCV Personal Representative (the Representative ) made a claim for compensation pursuant to the terms of the Settlement Agreement, on behalf of his adult son, the HCV Infected Class Member (the Claimant ). The claim was denied by the Administrator, who is charged with overseeing the distribution of the settlement monies. The claim was denied on the basis that the Representative failed to file the claim prior to the First Claims Deadline (described below). The Representative appealed the denial of the claim to an Appeals Officer, who upheld the decision of the Administrator. The Representative now appeals to this Court. 3. Upon receipt of the appeal materials, the Court Monitor directed Fund Counsel and the Administrator to conduct a Traceback on the available records to determine whether the Claimant received a transfusion after July 1, 1990, as there was some information to suggest that he had. As set out below, it was recently confirmed that a Traceback was conducted within the framework of the Claimant s application to the provincial settlement plan. The records reveal that the Claimant received blood transfusions in 1983 and that subsequently one of the donors was found to be positive for the antibodies to Hepatitis C. 4. In light of this information, the appeal must be dismissed.
2 Standard of Review 5. The Settlement Agreement provides Rules for Appeals. Paragraph 30 of the Rules for Appeals sets out the following standard of appellate review: The Court shall interfere with an Appeals Officer only: a. on a matter of law; b. where an Appeals Officer has exceeded his or her jurisdiction; or c. where the decision of an Appeals Officer is patently unreasonable. 6. Subsequent to the court approval of the Rules for Appeals, the Supreme Court of Canada released its decision in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, in which the court held that the standard of review of patent unreasonableness, which sets a very high standard for review, shall no longer be applied on judicial reviews. As a result of this decision, the standard of review on judicial reviews must be either reasonableness or correctness. 7. Although appeals under the Settlement Agreement do not constitute judicial reviews, the standard of review set out in paragraph 30 of the Rules for Appeals is similar to the standard of review that had been applied in judicial review cases before the Dunsmuir decision. In light of the Dunsmuir decision, it is now appropriate to apply a standard of reasonableness rather than patent unreasonableness when assessing the decisions of Appeals Officers, notwithstanding the wording of paragraph 3(c) of the Rules for Appeals. 8. Thus, for the HCV Personal Representative to succeed on this appeal, he must demonstrate that the decision of the Appeals Officer was an error of law, beyond the Appeal Officer s jurisdiction, or an unreasonable decision. Facts 9. The Representative is an Ontario resident who submitted an application on behalf of his severely disabled adult son, an HCV Infected Class Member. The application was delivered on July 22, 2010, some 22-days after the first claims deadline of June 30, 2010. 10. The application for compensation was denied on the basis that it was received after the First Claims Deadline (June 30, 2010) and because it did not meet any of the exceptions under s. 5.01(1) of the Settlement Agreement, which allow for the processing of late claims in certain circumstances. 11. The Claimant suffers from chronic hepatitis C, which was diagnosed in 1997. In his initial application form, the Representative asserted that the Claimant was transfused following spinal surgery in November 1983. 12. In addition, on October 19, 2010, the Representative delivered a copy of a Physician Form completed on behalf of the Claimant in connection with his application under the provincial settlement plan. On that form, the Claimant s physician indicated
3 that the Claimant received transfusions in Ontario both on or before December 31, 1985, and between July 2, 1990 and September 28, 1998. 13. Having rejected the application for compensation on the basis of the late filing, the Administrator did not investigate or make further inquiries regarding the alleged blood transfusions. 14. In his application for compensation, the Representative reported that the HCV Infected Class Member had no other risk factors for Hepatitis C. Again, in light of the Administrator s rejection of the claim, no follow-up inquiries were made in this regard. Decision of the Appeals Officer 15. Upon release of the Administrator s decision rejecting the claim, the Representative delivered a Request for Review and letter dated September 20, 2010. 16. In his letter, the Representative submitted that the late application did fall under one of the exceptions set out in section 5.01(1), namely that it was not the fault of his son, the HCV Infected Class Member, that the application was late. 17. In a decision dated December 9, 2013, the Appeals Officer dismissed the appeal. She concluded that the application had been filed after the First Claims Deadline and that none of the exceptions listed in section 5.01(1) of the Settlement Agreement applied in the circumstances. Contrary to the HCV Personal Representative s submissions, the Appeals Officer concluded that having assumed full and complete responsibility for all matters relating to the application, the Representative had a responsibility to take whatever steps necessary in order to ensure compliance with the deadlines. 18. The Appeals Officer also made clear that neither she nor the Administrator have any discretion in the application of the Settlement Agreement and in particular section 5.01(1). However, she acknowledged that there is evidence in this case that would be relevant to consider in determining whether discretion should be exercised to allow an appeal. 19. The HCV Personal Representative filed a Request for Appeal to this Court. In his request, the HCV Personal Representative argues that the Appeals Officer s decision was unreasonable because he had begun the process of filing his son s application in 2008, however, due to his son s ongoing illnesses in 2008 and 2009, the application was delayed until he noted that the deadline had passed. Information Obtained Subsequent to Appeals Officer Decision 20. As there was some information in the records provided to suggest that the Claimant may have received a blood transfusion after July 1, 1990, by letter dated May 26, 2014, the Court Monitor directed Fund Counsel and the Administrator to conduct a Traceback on the available records to determine when and whether the Claimant received a transfusion after July 1, 1990. 21. In response to the Court Monitor s request, Fund Counsel made inquiries and confirmed a Traceback was conducted within the framework of the Claimant s application to the provincial settlement plan. The records reveal that the Claimant
4 received blood transfusions in 1983 and that subsequently one of the donors was found to be positive for the antibodies to Hepatitis C. 22. In light of the discovery that one of the Claimant s donors from 1983 had tested positive for the antibodies, it was determined that further investigation into a possible transfusion post-july 1, 1990 was no longer necessary. Analysis 23. Subsection 5.01 of the Settlement Agreement provides as follows: 5.01 First Claim Deadline (1) Except as otherwise expressly provided in this Agreement, the Administrator shall not consider an application made for the first time after June 30, 2010 under this Agreement except: (a) where a Class Member was infected with Hepatitis C after July 1, 1990 and fails to submit an application by no fault of their own; or (b) where an application is made by a Family Member or Dependant within one year following the date on which the application submitted on behalf of the HCV Infected Class Member from whom the claim is derived was approved; or (c) where an application is made up to one year after the applicant attains his or her age of majority; or (d) where an application is made within three years following the date upon which the HCV Infected Class Member first learned of his or her infection with HCV as a result of receiving Blood in the Class Period or being infected by a Class Member who received Blood in the Class Period, and the Court having jurisdiction over that person grants them leave to apply for compensation. 24. The language of section 5.01(1) is mandatory. The Administrator is expressly prohibited from considering any application for compensation that is made for the first time after June 30, 2010 (the First Claims Deadline ), unless the application falls within one of the exceptions provided for in paragraphs (a) to (d). 25. In this case, the Representative filed his son s Application for Compensation in July 2010. While the filing was close to the First Claims Deadline, there is no question that the deadline was missed, and having failed to meet the First Claims Deadline, the Application ought only to be considered if it falls within one of the exceptions provided for in section 5.01(1). 26. In my view, the Appeals Officer was correct in concluding that the evidence available does not satisfy the requirements of any of the exceptions. 27. It is clear from the evidence available to the Court that the Representative was aware of his son s Hepatitis C status since 1997. As such, the late diagnosis exception provided for under subsection 5.01(1)(d) is not available to the Claimant in the circumstances. 28. The Representative has argued that it was not the Claimant s fault, but his own fault that the deadline was missed. I agree with the comments of the Appeals Officer wherein she notes that having filed the application on behalf of his mentally incompetent child, the Representative assumed full and complete responsibility for all matters in
5 relation to the application made under the Settlement Agreement, including the timelines by which to file. It is not open to the Representative to argue that his son should not bear the consequences of his failure to file in a timely manner. 29. Subsection 5.01(1)(a) allows for a late application to be considered where the Class Member was infected after July 1, 1990 and failed to file the application by no fault of their own. Based on the information confirmed by the Fund Counsel in May 2014, it appears that the Claimant was infected with Hepatitis C as a result of the receipt of tainted blood in 1983. As such, even if I were to accept the Representative s argument that the application was late through no fault of the Claimant, this exception is not available to the Claimant, given the date he received the tainted blood. 30. While I have a great deal of sympathy for the Claimant s circumstances and acknowledge the comments of the Appeals Officer, in my view it is not possible to depart from the strict requirements of section 5.01(1) in this case. 31. This is not an appropriate case for the Court to exercise the principle of inclusiveness as articulated by Chief Justice Winkler in his Reasons for Decision in Claim File 07-00464. In that case, there were competing facts as to whether or not the claimant had received blood as reported. Here, the evidence is clear. The Claimant received tainted blood in 1983, and his Representative filed his application for compensation after the deadline. This makes the Claimant ineligible for any of the exceptions available under section 5.01(1). 32. The terms of the Settlement Agreement are the result of an agreement between the parties and was approved of by the Courts. This Court does not have the jurisdiction to alter its terms. As Justice Pitfield stated in an earlier appeal: [9] A settlement of this kind in question cannot be expected, nor is it intended, to produce a perfect result. It is intended to produce a result that is fair and reasonable having regard to the interests of the Class generally, the interests of the defendant, and all of the circumstances surrounding the issues in the litigation. [10] It is not now open to the Administrator, the Appeals Officer or this Court to depart from the terms of the Pre/Post Settlement Agreement which, as they pertain to this Claimant, have been accurately interpreted and applied by the Administrator. (Claim File #07-01482, April 7, 2010) 33. The Appeals Officer s decision does not contain errors on matters of law, nor is it unreasonable or outside of the Appeals Officer s jurisdiction. In my view, the Appeals Officer s decision ought to be affirmed. Released: August 15, 2014. Perell, J.