A personal injury class action lawsuit was settled by agreement regarding British Columbia residents who were infected with the Hepatitis C virus by transfusion of blood from the Canadian blood supply before January 1, 1986 and from July 2, 1990 to September 28, 1998, and their family members and estates. The settlement agreement was approved by the Supreme Court of BC and under the Settlement Agreement, claimants were entitled to varying degrees of money compensation.
The following is a review of the unsuccessful appeal of a decision of an Appeals Officer appointed pursuant to the Settlement Agreement in the pre-1986/post-1990 Hepatitis C litigation (Pre-1986/Post-1990 HCV Settlement Agreement Claim No. 07-04380, 2014 BCSC 1149).
The personal injury Claimant filed an Application for Compensation alleging that he received a blood transfusion following an automobile accident in British Columbia in 1965. No hospital records were available to confirm the Claimant’s injury, attendance at a hospital or a blood transfusion.
The Claimant’s compensation claim pursuant to the Settlement Agreement was denied by the Administrator charged with overseeing the distribution of the class action settlement monies. The Claimant appealed the denial to an Appeals Officer, who upheld the decision of the Administrator.
The settlement agreement provided for circumstances when a claimant was unable to provide hospital records to confirm receipt of a transfusion in the relevant time period. In such cases, the settlement agreement required:
2.01 Eligibility – Primarily-Infected Class Member
(1) A person claiming to be a Primarily-Infected Class Member must deliver to the Administrator an application form prescribed by the Administrator together with:
(a) medical, clinical, laboratory, hospital, The Canadian Red Cross Society, Canadian Blood Services or Hema-Quebec records demonstrating that the claimant received Blood in Canada during the Class Period;
(b) an HCV Antibody Test report, PCR Test report or similar test report pertaining to the claimant;
(c) a statutory declaration of the claimant including a declaration during the Class period;
(i) that he or she has never used non-prescription intravenous drugs, and
(ii) as to where the claimant first received Blood in Canada during the Class Period, and
(iii) as to the place of residence of the claimant, both when he or she first received Blood in Canada during the Class Period and at the time of delivery of the application hereunder; and
(iv) where the claimant is a Primarily-Infected Person, that to the best of his or her knowledge, information and belief, he or she was infected with HCV during the Class period;
(2) Notwithstanding the provisions of Section 2.01(l)(a), if a claimant cannot comply with the provisions of Section 2.01(l)(a), the claimant must deliver to the Administrator corroborating evidence independent of the personal recollection of the claimant or any person who is a Family Member of the claimant establishing on a balance of probabilities that he or she received Blood in Canada during the Class Period.
The Judge found that the Appeals Officer correctly concluded that the affidavit of the Claimant did not meet the requirements of section 2.01(2) of the Settlement Agreement. Similarly, the Affidavit of the lawyer appending an unsworn affidavit of the driver of the vehicle did not qualify as corroborating evidence. And even if the Court were to accept the unsworn affidavit of the driver of the vehicle, it contained no information regarding the hospitalization of the Claimant or the alleged blood transfusion.
The Claimant had not established on a balance of probabilities that he was the receipt of tainted blood during the relevant period and he was therefore not entitled to a money award under the Settlement Agreement.
Posted by Vancouver Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.