Adrian v Canada (Minister of Health)(Claimant #07-, 2013 ABQB 742

Court of Queen ’ s Bench of Alberta Citation: Adrian v Canada (Minister of Health)(Claimant #07-08041), 2013 ABQB 742 Date: 20131217 Docket: 9903 19153 Registry: Edmonton IN THE MATTER OF AN APPEAL PURSUANT TO THE HEPATITIS C PRE-1986/POST-1990 CLASS ACTION SETTLEMENT AGREEMENT Between: Claimant #07-08041 (In Order To Protect the Privacy of the Claimant, the Name of the Claimant Has Been Substituted by a Number Assigned by the Administrator) Plaintiffs - and - The Administrator Defendant _ ________________________________________ ______________ Memorandum of Decision of the Honourable Mr. Justice V.O.

Ouellette _________________________________________ ______________ I. Introduction [ 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. The claimant’s application was denied on the basis that she was not a spouse as defined under the Settlement Agreement .

II. Standard of Review [2] The Settlement Agreement provides for Rules for Appeals.

Paragraph 30 of the Rules sets out the following standard ofappellate 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. [3] Subsequent to the court approval of the Rules for Appeals, the Supreme Court of Canada released its decision in Dunsmuir v.New Brunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190, in which the court held that the standard of review of patentunreasonableness, 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 simpliciter or correctness. [4] Although appeals under the Settlement Agreement do not constitute judicial reviews, the standard of review set out inparagraph 30 of the Rules for Appeals is similar to the standard of review that had been applied in judicial review cases before theDunsmuir decision.

In light of the Dunsmuir decision, when assessing the decisions of Appeals Officers, it is now appropriate to apply astandard of reasonableness simpliciter rather than patent unreasonableness, notwithstanding the wording of paragraph 3(

c) of the Rulesfor Appeals. [5] Thus, for the claimant to succeed on this appeal, the claimant must demonstrate that the decision of the Appeals Officer wasan error of law, beyond the Appeal Officer’s Jurisdiction, or an unreasonable decision. III. Facts [6] The Claimant submitted a claim for compensation as a Secondarily-Infected Person under the Settlement Agreement. Shestates that she was infected with the virus by her ex-husband, a Primarily-Infected Class Member (“WM”).

The Claimant was firstdiagnosed with Hepatitis C in or about May 1995. [7] The Claimant and WM were married in August 1970 and divorced in 1975. The Claimant submits that she and WMcontinued to have a sexual relationship until the early 1990s. However, they did not live together after the dissolution of their marriage in1975. [8] WM received a blood transfusion for treatment of a gunshot wound on December 22, 1979. At the time, the Claimant andWM were divorced and living separately. [9] On September 10, 2012, the Appeals Officer upheld the denial by the Administrator of the Claimant’s application.

TheAppeals Officer agreed that the evidence filed demonstrated that while the Claimant and WM had been spouses up until 1975, theClaimant was no longer WM’s spouse, as contemplated under the Settlement Agreement. As a result, the application was denied. IV.

Issues [10] The Claimant argues that the Appeals Officer erred in not interpreting the definition of “spouse” in a broad and liberal sense.She further argues that the decision of the Appeals Officer is unreasonable because she is suffering from Hepatitis C and that the denialof her application would have an overwhelming significant negative consequence upon her. V.

Analysis [11] In order for the Claimant to be eligible to make a claim as a Secondarily-Infected Person, she must provide evidence on abalance of probabilities that she was infected with HCV by a spouse who is a Primarily-Infected Class Member (para. 2.02(1)(

a) of theSettlement Agreement). Secondarily-Infected Person means: A spouse of a Primarily-Infected Class Member... (Definitions para. 1.01 ofthe Settlement Agreement). [12] The term “spouse” is defined in the Settlement Agreement as follows: (

a) either of two persons who, i. are married to each other; ii. have together entered into a marriage that is voidable or void, in good faith on the part of the person asserting a right underthis Plan; iii. have Cohabited for at least two years; or iv. have Cohabited in a relationship of some permanence if they are the Parents of a Child.

[ 13 ] Therefore, in order for the Claimant to be eligible for compensation as a Secondarily-Infected Person, she must have been the spouse of the Primarily-Infected Class Member at the time that she was infected with HCV. [ 14 ] At the time of WM’s blood transfusion in 1979, the Claimant and he had been divorced for more than four years. Both the Claimant and WM have filed statutory declarations swearing that although they divorced in 1975, they continued to have a sexual relationship on an ongoing basis into the 1990’s.

In that regard, the Claimant declared in her Statutory Declaration dated November 3, 2011, the following at para. 3: “Our marriage relationship ended in divorce in 1975; though the marriage came to a legal end at that point, the fact is that we continued to have a sexual and ongoing intimate relationship into the early 1990s.” [ 15 ] On the same day, WM also declared the exact same thing at para. 3 of his Statutory Declaration. [ 16 ] On August24, 2012, WM declared the following at paras. 2 & 3 of his Statutory Declaration: [2] I was the legal spouse of RM from approximately 02/70 to 06/76. [3] Though we ceased to be legal spouses and ceased living together, we continued to be conjugal partners in as full a sense as if married through the late 1970s, 1980s, and into the beginning of the 1990s. [ 17 ] The question is whether the ongoing sexual relationship can fall within the definition of spouse as defined.

In that regard, both the Claimant and WM have confirmed that they were not married to each other at the time when WM received the transfusions in 1979. The statutory declarations also confirm that after 1975, the Claimant and WM did not cohabit together.

Lastly, they both confirm that they did not live together in a relationship of some permanence, even though they were the parents of a child. [ 18 ] Therefore, the Claimant cannot meet the eligibility requirement of being a spouse because by her own evidence, she is not a spouse as it is defined. [ 19 ] Although the Claimant’s circumstances are unfortunate, the Appeals Officer properly applied the terms of the Settlement Agreement to the facts. VI. Conclusion [ 20 ] For all of the reasons stated above, the appeal of the Claimant is dismissed.

Dated at the City of Edmonton, Alberta this 13 th day of December, 2013. V.O. Ouellette J.C.Q.B.A. To: Claimants To: Fund Counsel To: Administrator To: Appeals Officer