IN THE MATTER OF an appeal filed
pursuant to the Rules for Appeals under
the Pre-1986/Post-1990 Hepatitis C
Settlement Agreement and its Protocols
CLAIM FILE: 07-01956
REASONS FOR DECISION
 The Claimant has appealed a decision of the Administrator dated September 18,
2009, in which the application for compensation under the Pre-1986/Post-1990
Hepatitis C Settlement Agreement (“Settlement Agreement”) was denied. The
Administrator concluded that the Claimant had used non-prescription intravenous drugs
and had failed to establish on a balance of probabilities his infection with Hepatitis C for
the first time by a blood transfusion in Canada during the Class Period.
 On April 26, 1982, the Claimant was hospitalized for serious injuries sustained in
a motorcycle accident and required several surgical procedures to repair a compound
fracture.1 During the course of his hospitalization, he received transfusions of eight units
of blood.2 A Transfusion Summary of the Canadian Blood Services dated March 24,
2008 confirmed that four of the donors were HCV negative, one was deceased, one
refused to be tested and two could not be located.3
 On April 19, 1994, the Claimant tested positive for the Hepatitis C antibody.4
 In 2002, the Claimant was awarded compensation in the amount of $25,000.00
under the terms of a provincial plan.5 In the provincial plan Physician Form dated
See, for example, pages 295 to 296.
See pages 312 and 104.
See page 104.
See laboratory report at page 238.
December 10, 1998, the family physician of the Claimant (“family physician”) indicated
intravenous drug use as a risk factor for Hepatitis C and wrote “IV drug use – age 15 only
(1970) once only.”6
 On September 4, 2007, the Claimant delivered an application for compensation
under the Settlement Agreement and indicated in the General Information Form that he
had the following risk factors for Hepatitis C: non-prescription intravenous drug use –
“One time 1972 / methadone experimented one time only”; tattoos – “1 tattoo 1971”. He
was born in 1955.
 The Treating Physician Form was completed by the family physician; he had
treated the Claimant for 22 years.7 In response to question 1 in the “Section F – HCV
Disease Verification” part of the form, he indicated non-prescription intravenous drug use
and tattoos as risk factors for the Hepatitis C virus. In response to question 3 concerning
whether there was anything in the Claimant’s medical history or clinical presentation to
indicate the use of non-prescription intravenous drugs at any time, he stated “on pt
[patient] history at age 16.”
 In the Statutory Declaration Form, the Claimant admitted the use of
non-prescription intravenous drugs.8 On October 3, 2008, he filed a further copy of the
form with a handwritten notation that stated “I used it once and one time only in early
1970’s. It made me sick and I never tried it again!”9
See page 97.
See page 313.
See pages 4 to 11.
See page 14.
See page 68.
 In a letter dated May 30, 2008 to an employee of the Administrator, the Claimant
stated that he had used intravenous drugs once in 1971, using a new syringe from a sealed
 In an affidavit sworn on August 21, 2008, the Claimant stated as follows:11
1. I have been diagnosed as infected with post-transfusion hepatitis C virus
(HCV) and am an applicant for compensation.
2. I was born on September 22, 1955.
3. I was first diagnosed with HCV by Dr. [name deleted – family physician]
on May 12, 1994. I believe that I contracted the disease from a blood
transfusion that I received at the age of 27 during an operation resulting
from a motor vehicle accident.
4. I have taken intravenous drugs on only one occasion in my lifetime in 1970
when I was fifteen years of age. On that occasion, I used a new syringe
which I removed from a box of new syringe which were marked as sterile
on their packaging. I did not share the syringe with anyone at that time or
at any time.
5. I do not recall donating my blood prior to the date that I received blood
during the class period.
6. I have never been convicted of a criminal offence. … [Emphasis Added]
 The patient chart records (“chart records”) of the family physician contained
information from appointments with the Claimant, including some evidence concerning
the use of non-prescription intravenous drugs. The chart records also revealed that, on
June 14, 1994, the family physician referred the Claimant to a specialist in
gastroenterology (“first specialist in gastroenterology”). The relevant parts of the chart
records stated as follows:
See page 105. The Claimant wrote several other letters and submissions in which he made similar
statements concerning his non-prescription intravenous drug use. See, for example, the letters at pages 113
and 125, as well as his appeal submissions.
See page 108. On page 109, in handwritten notes, the Claimant made the same general statements as in
the affidavit and added that he had never shared needles with other drug users.
• May 10, 1994 – HIV neg but hep C pos no IV drugs – likely [illegible]
• June 14, 1994 ... active hep C ... to [name deleted – specialist in
• Oct 17, 1994 ... told Dr. [name deleted – first specialist in
gastroenterology] that he did use IV drugs was drinking GGT 336
SGOT – 83 →[illegible] missed Sept appt [with] [name deleted –first
specialist in gastroenterology] – will see him again Jan/9514
• Dec 14, 1998 hep C form completed – see sheet – pt [patient] agrees to
disclose IV use15
 In a letter to the family physician dated June 22, 1994, the first specialist in
gastroenterology provided a report concerning his examination of the Claimant. He
noted, among other things, a statement made by the Claimant concerning his use of
intravenous speed at the age of 15 for a short period of time. The letter stated, in part, as
I saw [name deleted – the Claimant] today because of his raised liver enzymes.
This 39 year old [occupation deleted] has known for about 3 years that his liver
enzymes have been elevated. ...
He admits to drinking heavily and will consume on average 4-5 beers per day and
with at times a 26oz of vodka on the weekend. He also on occasion drinks
homemade wine. He used some cannabis in the past and years ago cocaine when
it was “in fashion”. For a short period of time when he was 15 he used
intravenous speed. This was he states his only encounter with intravenous drugs.
 The family physician subsequently referred the Claimant to a second specialist in
gastroenterology (“second specialist in gastroenterology”).
See page 176.
See page 177.
See page 178.
See page 308.
 In a letter to the family physician dated September 15, 2003, the second specialist
in gastroenterology provided a report concerning her examination of the Claimant. She
stated, in part, as follows:17
Thank you for asking me to see [the Claimant] with regards to his positive
Hepatitis C status. His a 48 year old married man with 3 sons. He has been a
[occupation deleted]. He is self-employed.
Past surgical history includes significant trauma to his left leg following a
motorcycle accident back in 1982. He was treated at [name of hospital deleted]
and did receive transfusions at the time.
Back in 1994, the patient was undergoing some routine bloodwork and was
found to be Hepatitis C positive. He himself gives no distinct history nor clinical
hepatitis at any time in his life and in fact at that point was feeling relatively well.
He was referred to Dr. [name deleted - first specialist in gastroenterology] and he
saw Dr. [name deleted - first specialist in gastroenterology] on a number of visits,
the initial one in June of 1994, trough to March of 1999. You were kind enough
to send along Dr. [name deleted - first specialist in gastroenterology] notes,
which were very helpful. In any case, when he initially saw the patient back in
1994, the patient did have hepatosplenomegaly with some mild palmar erythema
and spider nevi, indicating underlying chronic liver disease. Along with the
Hepatitis C, he felt that there was a significant element of alcoholic liver disease.
The patient was reported to be consuming about 5 beer per day, along with 26
ounces of Vodka on weekends. Dr. [name deleted - first specialist in
gastroenterology] indicated that he was unable to treat the patient unless he was
willing to abstain from alcohol. Unfortunately, the patient did not stop, which
was outlined in his notes from October 1994, 1995, as well as March 1999.
In terms of his liver risk factors, he did receive the transfusion back in 1982 as
reported. He does also, however, have a tattoo which he received in 1975. He did
use IV drugs sporadically at the age of 16. He was also involved in kickboxing
for 2 years, hence there are numerous risk factors in his background for having
attained the Hepatitis C. There is no specific test which will indicate exactly how
long he has had it. Other risk factors, as mentioned above, include a significant
alcohol history which began late in his teens and continued through until July of
2002. In terms of his family history, he had 3 brothers, one of whom died of
trauma, one brother has Hepatitis C and cirrhosis and this brother did use IV
drugs in the 1970s, and his other brother is fine. He also had 2 sisters, one of
whom died of complications relating to Hepatitis C and she was also an IV drug
user, and his other sister is well. … [Emphasis Added]
See pages 43 to 45.
 The Administrator referred the file to a specialist in infectious diseases (“medical
specialist”) for an opinion. In a letter dated August 25, 2009, the medical specialist
provided the following opinion:18
I have reviewed the file of the above named claimant as requested. Briefly, this is
a 54-year old male who was found to be infected with hepatitis C in 1994. At that
time he was found to have significant findings of liver disease including an
enlarged firm liver, palmar erythema, several spider angiomata on his chest but
the spleen was not palpable. This work-up was prompted because of persistent
elevation of his liver function tests particularly AST and ALT and the GGT. In
1994, Dr. [name deleted – first specialist in gastroenterology] recorded that the
patient was a heavy drinker, consuming 4-5 beers per day and at times had
26 ounces of vodka on weekends. As well, he recorded a short period of time at
the age of 15 when the patient used intravenous speed and later on did use some
cannabis and cocaine (presumably not intravenous).
In 1982 he had a serious motor vehicle accident with a commuted fracture of his
left tibia. He had several surgical procedures and between April 23rd and 27th
received four units of packed red blood cells and four units of stored plasma.
Four of those donors have been found and traced to be negative. Further donors
have not been found. One was deceased and one declined testing. [The Claimant]
relates in his submission that he used intravenous methadone on one occasion in
1972. He relates that he felt quite ill after the experience and vowed to his mother
never to use intravenous drugs again. He apparently as well had a tattoo in the
early 90’s [sic]. In 2003 when he was assessed by Dr. [name deleted – second
specialist in gastroenterology] the family history recorded indicated that this
gentleman has three brothers, one brother had hepatitis C and cirrhosis and had
used intravenous drugs in the 70s and a sister who was also an injection drug user
and died of complications of hepatitis C. In Dr. [name deleted – second specialist
in gastroenterology’s] note she refers to Dr. [name deleted – first specialist in
gastroenterology’s] notes that [the Claimant] had hepatosplenomegaly. I do not
have all of Dr. [name deleted – first specialist in gastroenterology’s] records to
corroborate these findings.
In 2003 he now had significant splenomegaly and this is confirmed on the
abdominal scanning as well he had prominent abdominal veins and subsequent
testing did show that he had varices and therefore clearly has cirrhosis. As well
his platelet count was persistently low really going back to the mid-90s which is
certainly in keeping with splenomegaly.
He underwent a course of pegylated Interferon and Ribavirin. A half dose was
given because of the low platelets. He did have genotype 1 and he slowly
responded to therapy finally becoming undetectable at week 24 however six
months post-therapy the virus did come back i.e., a relapse. Based on the chart
and subsequent follow-up for a variety of aliments he appears to be cirrhotic but
See page 487 to 488.
well compensated with a very slight elevation of bilirubin and decreased
The key issue is on the balance of probabilities where did he more likely get
infected. It is well known that in a male drinker progression of hepatitis C viral
infection is more rapid and it is usually felt that significant liver disease is seen
approximately 15 years after initial infection. Based upon the findings of
Dr. [name deleted – first specialist in gastroenterology] in 1994 he did have
significant liver disease which would suggest the possibility that he was infected
prior to 1982 when he has his blood transfusion. The fact that he had several
siblings that have hepatitis C and were injection drug users could certainly
suggest a possible infection source even if he were to use needles on only one
occasion. As well, in the early 70s it was certainly not emphasized either in the
medical or lay literature as to the importance of sharing needles as a vehicle of
disease transmission and sharing of needles in recreational drug use was quite
common. What is less well known is the risk factors related to tattoos and
certainly in the 70s needles and ink were being reused. Finally there is a risk
related to the inhalation of cocaine when paraphernalia, straws etc were shared.
One can certainly not deny that there is a high risk of exposure related to four
units of blood or blood product that were not tested during his treatment of
trauma in 1982. There is some discrepancy as to whether he used injection drugs
once or just on an intermittent basis in the early 70s and whether he used speed
and methadone. Either one certainly could be risk factor. However, low platelets
and if in fact he did have splenomegaly in 1994 this would suggest that on the
balance of probabilities he likely was infected prior to 1982.
I note that the patient has stated confusion of his being compensated through the
Ontario plan. It may be worthwhile denoting that the plans although similar do
have distinct differences in assessing other risk factors of hepatitis C infection.
If you have any other questions please feel free to contact us. [Emphasis Added]
 A Review Committee of the Administrator concluded that the Claimant had not
established on a balance of probabilities his first infection with Hepatitis C by a blood
 In a decision dated September 18, 2009, the Administrator concluded that the
evidence did not establish, on a balance of probabilities, the infection of the Claimant for
the first time with Hepatitis C from the blood transfusions in 1982.20
See page 420.
The decision of the Administrator was not paginated.
 The Claimant did not deliver any supplementary evidence and made submissions
on appeal in a letter dated September 4, 2011 to the Fund Counsel.21 On January 12,
2012, he also had a telephone conversation with the Fund Counsel. In a letter of the same
date to the Claimant, the Fund Counsel summarized the submissions that he wished to
make on appeal. I have carefully read the written submissions of the Claimant and the
letter of the Fund Counsel.
 The evidence in the file indicates that the Claimant admitted non-prescription
intravenous drug use on one occasion.22 The time period that he gave for the use varied
from 1970 to 1972.23 In the General Information Form, he stated that the drug injected
was methadone on one occasion.24 In his other statements in letters, submissions and
other documents, including his affidavit, he made no reference to the type of drug
injected.25 Following his diagnosis of Hepatitis C in the spring of 1994, he initially told
his family physician that he had never used non-prescription intravenous drugs.26
However, on June 22, 1994, he admitted to the first specialist in gastroenterology that he
had used intravenous speed for a short period of time when he was fifteen.27 In 1998, he
told the family physician that he would agree “to disclose IV drug use” on “hep C
form”.28 Approximately five years later, on September 15, 2003, the second specialist in
gastroenterology wrote a reporting letter to the family physician concerning her
examination of the Claimant. In the letter, she outlined various risk factors that the
The submissions and other materials on appeal were not paginated.
See, for example, the evidence in paragraphs 5, 7, 8 and 9.
See paragraph 5.
See, for example, the affidavit in paragraph 9.
See paragraph 10.
See paragraph 12.
See paragraph 10.
Claimant had for Hepatitis C and stated that he “... did use IV drugs sporadically at the
age of 16.”29
 I have concluded that the statement in the letter dated June 22, 1994 from the first
specialist in gastroenterology to the family physician concerning the use of intravenous
speed by the Claimant for a short period of time at the age of fifteen is reliable evidence
entitled to significant weight. In arriving at this conclusion, I have considered the fact that
that the letter was written by the first specialist on the same day of his examination of the
Claimant, indicating that the statement concerning the use of non-prescription
intravenous drugs was recorded contemporaneously with its making. Furthermore, the
family physician wrote in a chart record four months later that the Claimant had told the
first specialist about his intravenous drug use. However, there was nothing in the chart
record to indicate that the Claimant denied making the statement to the first specialist. To
the contrary, a note in the chart record in 1998 indicated that the “hep C form” was
completed and the Claimant “agrees to disclose IV drug use”. Finally, the statement was
made by the Claimant to the first specialist in 1994, at a point in time when it was not
known that compensation would potentially be available for persons infected with
Hepatitis C through the blood system.
 Given my finding that the statement made by the Claimant in 1994 to the first
specialist in gastroenterology is entitled to significant evidentiary weight, I have
concluded that the statements made by him in support of the application for
compensation limiting his non-prescription intravenous drug use to one occasion with
methadone are lacking in credibility and can be given no weight. The Claimant also
See paragraph 13.
- 10 -
stated repeatedly that he had only used new, sterile needles and paraphernalia that were
not shared. However, the medical specialist stated in his opinion that sharing needles in
the 1970’s was “quite common”, as it was “... certainly not emphasized either in the
medical or lay literature as to the importance of sharing of needles as a vehicle of disease
transmission...”30 The evidence of the medical specialist was not contradicted or
undermined in any manner and is entitled to significant weight. As a result, the
statements of the Claimant concerning his use of new, sterile and unshared needles are
 Subsection 2.01(3) of the Settlement Agreement places the onus on the Claimant
by requiring him to deliver evidence to establish on a balance of probabilities that he was
infected for the first time with Hepatitis C by receiving blood. Section 4 of the
Non-Prescription Intravenous Drug Use Protocol directs the Administrator to weigh the
totality of the evidence and to determine, on a balance of probabilities, whether a
claimant has met the eligibility requirements in the Settlement Agreement. Section 4 also
clearly dictates that the burden of proving eligibility is on a claimant.
 In order to meet the balance of probabilities burden of proof in subsection 2.01(3)
of the Settlement Agreement, the Claimant must establish that his Hepatitis C infection
was “more likely” caused by the blood transfusions in 1982 than from his use of
non-prescription intravenous drugs. I have determined that, on the totality of the
evidence, it was reasonable for the Administrator to conclude that the Claimant has not
met the required burden of proof. Indeed, I would have reached the same conclusion as
the Administrator in this matter on the basis of the totality of the evidence.
See paragraph 14.
- 11 -
 The Claimant has made reference to the fact that he has received compensation
under a provincial plan. Although I fully understand that it must be confusing and
upsetting when compensation is granted under the auspices of one program or agreement
and yet denied under another one, the terms of the Settlement Agreement govern the
present claim and must be applied. It is also important to recognize that the terms of the
Settlement Agreement are the result of an agreement between the Parties which was
approved by the Courts; neither the Administrator nor the Appeals Officer has any power
or discretion to alter those terms.31
 The appeal is dismissed.
The Honourable D. McGillis, Q.C.
DATED February 13, 2012
See two recent decisions on further appeals to the Court concerning the binding nature of the provisions
of the Settlement Agreement: Claim Files 08-15662, 08-13831 and 07-10252 dated March 25, 2010 (Chief
Justice Winkler) and Claim File 07-01482 dated April 7, 2010 (Mr. Justice Pitfield).