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10-19778
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: 10-19778
REASONS FOR DECISION
INTRODUCTION
[1] The Claimant has appealed a decision of the Administrator dated December 7,
2010, in which the application for compensation under the Pre-1986/Post-1990
Hepatitis C Settlement Agreement (“Settlement Agreement”) was denied on the basis that
it was made for the first time after June 30, 2010 and did not fall within one of the
exceptions provided in subsection 5.01(1).
FACTS
[2] On August 26, 2010, the Claimant delivered an application for compensation
under the Settlement Agreement.
[3] In the General Information Form, the Claimant stated that she was a Primarily-
Infected Person who was infected with the Hepatitis C virus through blood transfusions
received in Canada beginning in 1976. The form was not fully completed and was not
signed.
[4] In the Treating Physician Form signed on July 9, 2010, the treating physician
(“specialist in infectious diseases”) indicated that the Claimant was at Disease Level 2; he
had treated her for 1½ years. In response to question 1 in “Section F – HCV Disease
Verification”, he indicated that the Claimant had no other risk factors for Hepatitis C. In
response to question 2, he indicated that she had received blood during the Class Period.
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[5] In the Blood Transfusion History, the Claimant stated that she had received blood
transfusions beginning in July 1976 and “every other day for one year and every other
day for one month” due to her premature birth (weighing two pounds).
[6] By letter dated September 8, 2010, the Administrator advised the Claimant of
deficiencies to be corrected in order to complete the application for compensation.
[7] On October 22, 2010, the Claimant delivered a completed General Information
Form and indicated in “Section G – Other Risk Factors” that she had no risk factors for
Hepatitis C.
DECISION OF THE ADMINISTRATOR
[8] In a decision dated December 7, 2010, the Administrator did not consider the
application for compensation on the basis that it was made for the first time after the
deadline of June 30, 2010 and did not fall within any of the exceptions provided in
subsection 5.01(1) of the Settlement Agreement. In the decision, the Administrator stated
as follows:
We are writing to advise you that your claim has been denied for compensation
under the Pre-1986/Post-1990 Hepatitis C Settlement Agreement. The reasons for
denial are set out below.
First Claim Deadline
In accordance with Section 5.01 of the Settlement Agreement, the deadline for an
alive HCV Infected Class Member to file a claim is June 30, 2010. The
Administrator cannot consider an application made after June 30, 2010, except in
the following circumstances:
(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
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(b) where an application is made by a Family Member or
Dependant…
(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.
Reasons for Decision
The Settlement Agreement permits the Administrator to consider an application
for class membership after June 30, 2010, only if the claim meets one of the
exceptions noted at section 5.01(1)(a), (b), (c), or (d) above.
Your Claim Form Application was delivered to the Administrator on August 26,
2010 which is after the First Claim Deadline. You also submitted your hepatitis C
Antibody test dated 2002, which is more than 3 years before the date your
application was made. Based on this evidence it is concluded that you do not
meet any of the above mentioned exceptions and your claim must be rejected as
the time to file an application has passed.
The Administrator carefully reviewed all the material that you provided and
determined that you do not meet one of the exceptions.
As you may already know, every claim for compensation is reviewed and
approved based on our review of documentation confirming a series of different
but related proven facts. As soon as a claim submission fails to meet one of
several approval criteria as set out in the Settlement Agreement the claim must be
denied. It is important to note that in some cases, the subsequent claim evaluation
steps were not completed after determining the need to deny the claim. Should
you opt to appeal our decision to deny your claim and should you succeed on
appeal, any and all pending evaluation steps will have to be completed.
REQUEST FOR REVIEW
[9] On December 17, 2010, the Claimant delivered a Request for Review,
together with a letter from the specialist in infectious diseases.
[10] In the Request for Review, the Claimant specified the reasons for
appealing as follows:
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Received a denial letter due to the fact the doctor did not fill his part of the paper
work before the deadline of June 30, 2010. Doctors [sic] letter enclosed.
[11] In a letter dated December 15, 2010, the specialist in infectious diseases
stated as follows:
The HCV Infected Class Member failed to submit a claim for compensation
under the pre-1986/Poat-1990 hepatitis Settlement prior to the deadline of June
30, 2010 as I had not completed the Treating Physician Form.
SUPPLEMENTARY EVIDENCE
[12] On January 19, 2011, the Fund Counsel sent a letter to the specialist in
infectious diseases by facsimile and asked him whether the Claimant had told him
about the deadline or he was otherwise aware of it. On the same day, the specialist
in infectious diseases returned the letter to the Fund Counsel by facsimile and
responded to her questions as follows:
I do not recall.
The forms were given to me on June 22/10. They were completed by me on
July 9/10. She was called to pick up the completed forms on July 12/10.
[Emphasis Added]
[13] On January 20, 2011, a person wrote a letter on behalf of the Claimant, as
both the Claimant and her husband have cerebral palsy. The letter stated as
follows:
My name is [name deleted]. I am writing this letter on behalf of [the Claimant].
The young lady in question had and will always have the deadly disease
hepatitis C with no fault of her own. [The Claimant] had to have blood
transfusions in the early part of her life, the blood that was administered at that
time was not screened and [the Claimant] contracted the virus.
[The Claimant] and her husband both have cerebral palsy with that factor there is
a lot of documentation pertaining to the settlement and were unable to
comprehend all the information and did not realize there was a dead line on
which the documents had to be sent back to you. Please have it in your hearts to
reconsider opening this file and compensate [the Claimant] what she is entitled to
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[the specialist in infections diseases] will also be contacting you as well. Thank
you very much.
[14] In a letter dated January 27, 2011, the family physician of the Claimant
stated as follows:
[The Claimant] has cerebral palsy cannot comprehend information easily and
cannot mobilise also has 24 hour home care and is also hepatitic [sic] C positive
due to a blood transfusion that she had received [sic] when she was born.
Please contact me if you need any more information.
I am sorry that the forms were not filled in before the deadline as I was awaiting
the letter from the virologist. [Emphasis Added]
ISSUE
[15] The issue to be determined is whether it is in the interests of justice to allow the
appeal.
ANALYSIS
i) Subsection 5.01of the Settlement Agreement
[16] 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
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Period, and the Court having jurisdiction over that person grants them
leave to apply for compensation.
[17] Subsection 5.01(1) of the Settlement Agreement is mandatory in nature and
expressly prohibits the Administrator from considering any application for
compensation that is made for the first time after June 30, 2010, unless it falls
within one of the exceptions provided in paragraphs (a) to (d). In other words,
there is a deadline requiring any application for compensation to be made by no
later than June 30, 2010, and the only four exceptions that are permitted are set
out in paragraphs 5.01(1)(a) to (d). If an application for compensation is not made
for the first time before the expiry of the deadline and does not fall within one of
the exceptions provided in subsection 5.01, the Administrator cannot consider it.
ii) Is it in the interests of justice to allow the appeal?
[18] In Claim File 09-17723 and nine related files, I allowed appeals in circumstances
where Family Member claims were not delivered within the mandatory time limit in
subsection 4.01(1) of the Settlement Agreement due to an error made by a law clerk in the
office of counsel representing the claimants. In the decision in Claim File 09-17723, I
stated, in part, as follows:
i) Interpretation of section 4.01 of the Settlement Agreement
[10] In the Reasons for Decision on the appeal in Claim File 07-10239, I
analysed the provisions in Article Four of the Settlement Agreement governing
the payment of compensation for Dependants and Family Members and stated, in
part, as follows:
iii) Eligibility Requirements in section 4.01 for Compensation as a
Family Member
[10] Under the terms of the judicially approved Settlement Agreement,
a person claiming to be a Family Member must satisfy the eligibility
requirements in section 4.01 in order to make a successful claim for
compensation. [...]
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[11] Subsection 4.01(1) of the Settlement Agreement requires, in mandatory
terms, the application for compensation of a Family Member to be delivered
within one year after the date of approval of an application made by or on behalf
of the HCV Infected Class Member.
ii) Is it in the interests of justice to allow the appeal?
[12] The evidence in the claim file establishes that the HCV Infected Class
Member was represented by a highly experienced lawyer for the purposes of the
primary application for compensation under the Settlement Agreement. The
primary application for compensation of the HCV Infected Class Member was
approved on February 12, 2008. By letter dated September 15, 2009, a paralegal
clerk in the office of the lawyer sent the Family Member claim forms to the HCV
Infected Class Member. In the letter, she stated that the forms should be sent to
the Administrator by the Family Member claimants as soon as possible with the
requisite proof of relationship. Unfortunately, it appears that the paralegal clerk
in the law firm made an error in calculating the date by which the Family
Member claims had to be delivered in order to comply with the time period
prescribed in subsection 4.01(1) of the Settlement Agreement. Rather than
sending the letter to the HCV Infected Class Member in sufficient time to have
the Family Member claims delivered by the required dates in either February or
July 2009, depending upon the application that was to be made, she sent the letter
in September 2009 for a deadline that she had apparently erroneously calculated
as a date early in the year 2010. The HCV Infected Class Members and the
Family Members had relied on the law firm for the provision of advice
concerning their applications for compensation.
[13] Subsection 4.01(1) of the Settlement Agreement requires, in mandatory
terms, a Family Member application for compensation to be delivered within one
year after the date of approval of the HCV Infected Class Member’s application.
The Family Member application therefore had to be delivered before February
12, 2009. There is no provision in the Settlement Agreement to permit the
Appeals Officer to extend the time for the delivery of an application for Family
Member compensation.
[14] Despite the absence of a provision permitting the extension of the time
period in subsection 4.01(1) of the Settlement Agreement, the factual
circumstances of the present appeal require intervention in order to prevent a
manifest injustice from occurring. Otherwise, an isolated administrative error
made in the office of a highly experienced lawyer would result in severe and
irreparable prejudice to the Family Members of an approved HCV Infected Class
Member by preventing them from delivering their applications. The evidence in
the claim file demonstrates that the Family Members had a continuing intention
to pursue their applications and relied on advice given by the law firm concerning
the deadline for the delivery of the applications. Furthermore, given the approval
of the HCV Infected Class Member’s claim, the Family Member applications are
clearly meritorious and would be approved by the Administrator upon delivery of
the proof of relationship required in subsection 4.01(1) of the Settlement
Agreement. In the circumstances, there is no prejudice to anyone other than the
Family Members arising from the delay. Finally, in the absence of an
intervention, the Family Members would have no other effective recourse to
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remedy the prejudice caused to them. Given the unusual facts, my intervention is
required in the interests of justice in order to remedy an otherwise irreparable
prejudice. I should add that this is a highly unusual situation and my decision in
this matter is strictly limited to the facts of this case. [Emphasis Added]
[18] The evidence establishes that the specialist in infectious diseases received the
Treating Physician Form on June 22, 2010, a date within the deadline prescribed in
subsection 5.01(1). He could not recall whether he was aware of the deadline. In any
event, he signed the form on July 9, 2010. The family physician confirmed that the
Claimant has cerebral palsy and requires 24 hour home care. Furthermore, the family
physician was assisting the Claimant in completing forms. However, the forms were not
filled in before the deadline because the family physician was waiting to receive the
Treating Physician Form from the specialist in infectious diseases.
[19] For the reasons given in Claim File 09-17723, I have concluded that it is in the
interests of justice to allow the appeal. In particular, it would be manifestly unjust to deny
the Claimant the right to have the application for compensation determined on its merits
in the circumstances explained in the letters from the specialist in infectious diseases and
the family physician. I also note that the Claimant had a continuing intention to pursue
the application for compensation and had relied on her physicians to assist her given the
debilitating effects of her cerebral palsy and her incapacity to complete the forms on her
own. Furthermore, the Treating Physician Form was given to the specialist in infectious
diseases before the expiry of the deadline. Finally, the prejudice to the Claimant would
otherwise be irreparable.
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CONCLUSION
[20] The appeal is allowed. The application for compensation delivered by the
Claimant on August 26, 2010 shall be deemed to have been delivered within the time
period prescribed in subsection 5.01(1) of the Settlement Agreement, and the
Administrator shall consider the application on its merits.
"D. McGillis"
The Honourable D. McGillis, Q.C.
Appeals Officer
DATED February 11, 2011
TO: Claimant
Fund Counsel
Administrator
