Claimant # HC-16-24027 (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 - v. -, 2017 ABQB 771

Court of Queen ’ s Bench of Alberta Citation: Adrian v Canada (Minister of Health)(Claimant # HC-16-24027), 2017 ABQB 771 Date: 20171213 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 # HC-16-24027 (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] The Claimant appeals the decision of an Appeals Officer denying the claim on the basis that the application forcompensation was filed out of time. 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] Therefore, for the Claimant to succeed on this appeal, the Claimant must show that the decision of the Appeals Officer wasan error of law, beyond the Appeals Officer’s jurisdiction, or an unreasonable decision. III. Facts [6] The Claimant was born in 1951. In her application for compensation, she indicated that she received a blood transfusion priorto January 1, 1986.

Further, she states that she was diagnosed with Hepatitis C in the year 2000. [7] The Claimant states that she contacted the Administrator in 2015 and was advised that she had until June 30, 2016 to file herapplication. [8] The application for compensation was not completed until June, 2016. IV. Claimant’s Position [9] It is the Claimant’s position that the decision of the Appeals Office is incorrect. She argues that after 2010 and before 2016,had several health issues that she had to deal with. [10] As a result, she submits that the failure to submit her application on time was through no fault of her own. V.

Issue [11] Did the Claimant file her application for compensation outside the prescribed deadline as provided for in the SettlementAgreement? VI. Analysis [12] The deadline for filing claims under the Settlement Agreement is outlined in

section 5.01(1). The

section reads as follows:

(1) Except as otherwise expressly provided in this Agreement, the Administrator shall not consider an application made for the firsttime 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 applicationsubmitted 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. [ 13 ] The Settlement Agreement provides that the application must be made on or before June 30, 2010. The terms of s. 5.01(1) are mandatory. [ 14 ] The deadline date of June 30, 2010 has four exceptions. The exceptions provided under subsections (b), (

c) and (

d) are not applicable, specifically subsection (

b) is not applicable because the application is not being made by a family member. The exception under subsection (

c) is also not applicable as the Claimant was past the age of majority at the time of the application. Exception (

d) is also not applicable as the Claimant first learned of her Hepatitis C infection in 2000, and therefore the application is made more than three years after first learning of the infection. [ 15 ]

Section 5.01(1)(

a) provides a further exception, that is, that the failure to submit the application was through no fault of the Claimant. The Claimant has submitted that it was not until 2016, when her health improved and following information she received regarding the deadline being June 30, 2016. However, a review of the medical records appear to contradict that her state of health prior to June 2016 would have prevented her from making the application.

Further, there is no evidence that the Administrator told her she had until June 30, 2016 to make such an application. [ 16 ] The Claimant’s application was received on June 22, 2016, six years after the first claim’s deadline. [ 17 ] Further, the evidence discloses that the Claimant did not take any steps to inquire into programs or settlements until 2015. [ 18 ] Therefore, even if she may have been provided with the wrong information regarding the filing deadline by the Administrator in November 2015, she was beyond the first claim’s deadline in any event.

As a result, it would have made no difference whether she filed her application in 2015 or in 2016. [ 19 ] The facts of this case are that the Claimant did not take any steps to inform herself about the Settlement Agreement until 2015, even when she was diagnosed with Hepatitis C in 2000. The evidence also discloses no reason why the Claimant was not capable of completing her application on time. Therefore, the Claimant’s argument that she did not file her application on time was as a result of no fault of her own, is not supported by the evidence. VII.

Conclusion [ 20 ] As a result, the Appeals Officer’s decision is confirmed. The appeal is denied. Dated at the City of Edmonton, Alberta this 12 th day of December, 2017. V.O. Ouellette J.C.Q.B.A. To: Claimants To: Fund Counsel To: Administrator To: Appeals Officer