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At the end of the 1970s, the parents of a young girl who developed viral encephalitis a few days after being vaccinated for measles brought an action for damages against the Government of Québec.
The Superior Court of Québec concluded that, on the one hand, there was evidence of a causal link between receipt of vaccine, encephalitis and subsequent disability and, on the other hand, absence of any fault. The Court decided against the Government on the basis of a no fault basis liability resulting from necessity. Indeed, it was considered that the moral suasion exercised on the public to be vaccinated was the equivalent of a vaccination compulsorily imposed and that damages suffered by an individual for the benefit of the community must be borne by the latter.
The Québec Court of Appeal and the Supreme Court of Canada also indicated that no one had committed any fault but that the moral suasion exercised on the public did not make vaccination compulsory, and in such a case there could be no liability without proven fault. It was recognised, however, that the situation was unjust for this young girl and that there is no legislation requiring that compensation be paid in such circumstances.
The Supreme Court reached a decision to award compensation independent of any fault in April 1985. During that year, the Government of Québec introduced the Compensation for victims of vaccination program and it was inserted in a new Division of the Public Health Protection Act. The Regulation specific to this program was adopted in November 1987 and the first claims for compensation were filed the following year.
|Number of claims submitted since 1988||245|
|Number of claims that were not pursued||63|
|Number of claims pending evaluation||14|
|Number of evaluation committees to have rendered a decision
(only claims meeting the admissibility criteria were evaluated by a medical committee)
|Number of claims accepted||38|
|Total number of appeals lodged with the TAQ||70|
|Total amount of compensation paid||$3,95 M|
|Total program cost||$4,9 M|
|Total number of cases in which appeals were lodged with the TAQ||70|
|Number of rejected appeals||33|
|Total accepted appeals – causal relationship||0|
|Total accepted appeals – disputed compensation amounts||5|
|Year||Number of completed claims submitted||Number of claims evaluated by a committee*||Number of claims compensated|
* Only claims meeting the admissibility criteria were evaluated by a medical committee.
** During the 2009–2010 period, 5.7 million Quebecers received the influenza A(H1N1) vaccine, which could explain the increase in claims observed in the three years following the vaccination period observed increase in claims.
† Some claims are pending evaluation.
‡ This number includes an out-of-court settlement case.
The current legal framework is the 2001 Public Health Act, amended on June 14, 2011, (chapter VI, division III, sections 70 to 79) as well as the Regulation under the Public Health Act in effect since August 2003 and amended on February 5, 2009 (division II, sections 4 to 30).
The principle is that Québec’s Minister of Health and Social Services must compensate any victim of bodily injury caused by a voluntary vaccination by inoculation with a vaccine or immunoglobulins against a disease or infection identified in the Regulation, or a compulsory or imposed vaccination. Vaccination must have taken place in Québec. The diseases or infections involved are the following:
Compensation must be made regardless of responsibility or possible fault of the various stakeholders, that is, an institution, health professional, manufacturer, distributor or product quality controller.
Moreover, the victim can undertake civil action against any person responsible for bodily injury, but cannot receive double indemnity; if the victim receives double compensation, the victim will reimburse to the Minister the amounts he has previously paid or committed to paying.
The “victim” is a person who suffers bodily injury after receiving vaccination against a disease or infection listed in the Regulation.
A victim can also be a person who contracts the disease from a vaccinated person, the foetus of either of such persons or, if a death occurs, the person who is entitled to a death benefit from the date of death;
“Bodily injury” consists in any serious permanent physical or mental injury, or death.
An application for compensation must be filed within three years after the date of the vaccination or date of death, in case of an application for death benefit.
However, when an injury becomes apparent gradually, the time limit runs only from the day the injury first becomes apparent.
A claimant must print the Forms for Québec's compensation for victims of vaccination program ; fill them out, providing all information requested; and send them to the following address:
Ministère de la Santé et des Services sociaux
Direction de la protection de la santé publique
Programme d'indemnisation des victimes d'une vaccination
1075, chemin Sainte-Foy, 11e étage
Québec (Québec) G1S 2M1
The forms can also be obtained by calling 1 855 881-9869 or by writing the Ministère de la Santé et des Services sociaux at the above address.
On July 4, 2011, the Ministère de la Santé et des Services sociaux signed an agreement with the Institut national de santé publique du Québec (INSPQ) governing the administrative and organizational management of the compensation for victims of vaccination program.
The Minister maintains responsibility for the program as provided for under the Public Health Act.
Under a mandate received from the Ministère de la Santé et des Services sociaux, the Institut national de santé publique du Québec will collect all relevant medical files, with authorisation from the claimant.
In the event the claim is approved, the claimant will provide, upon the request of Société de l'assurance automobile du Québec, the information and supporting documents required to comply with the Automobile Insurance Act, including :
In the event that the claim is accepted, the claimant must keep all supporting documents needed for expense reimbursement.
The Regulation states that any application for compensation will be studied by an evaluation committee that consists of a physician appointed by the Minister, a physician appointed by the claimant, and a third physician appointed by the first 2 physicians. The third physician will chair the committee, which members may examine the victim.
The committee’s functions are to make rational recommendations to the Minister on the existence or lack thereof of causal link between the injury sustained by the victim and the vaccination. The committee must also assess, if required, the percentage of permanent impairment of the victim's physical or mental integrity and other elements required regarding compensation paid by the Société de l'assurance automobile du Québec.
The Minister shall give a decision in writing, after studying the majority recommendations of the committee and of any dissenting member, should there be one.
It is also the Minister who is asked to pronounce on a decision that does not involve any reason of a medical nature, as is the case for the eligibility or inadmissibility of an application for compensation.
The claimant can exercise his or her right of appeal to the Administrative Tribunal of Québec against a decision made by the minister to reject the application for compensation or against the amount of compensation awarded. The delay is strict: 60 days from the date of notification of the decision.
The Administrative Tribunal of Québec has an office in the city of Québec and another in Montréal. The Tribunal can be reached as follows:
Administrative Tribunal of Québec
575, rue St-Amable
Québec (Québec) G1R 5R4
Téléphone : 418 643-3418 ou 1 800 567-0278
Fax: 418 643-5335
Tribunal administratif du Québec
500, boul René Lévesque ouest, 21e étage
Montréal (Québec) H2Z 1W7
Téléphone : 514 873-7154
Fax: 514 873-8288
The Minister covers the costs of the services rendered by the members of the evaluation committee. The Minister will also assume the cost for anyone added to the medical committee and for any expert physician consulted by the committee.
The parties involved cover the costs. The Minister covers the defence costs and the claimant the proceeding costs. There is no charge for the services provided by the Administrative Tribunal.
The Minister has entered into an agreement with the Société de l'assurance automobile du Québec (SAAQ) whereby the SAAQ calculates and pays the compensation to cases who obtain favourable decisions. Amounts are calculated pursuant to the rules and regulations prescribed in the Automobile Insurance Act and are identical to those awarded in case of an automobile accident.
To apply the Act, the sums necessary to compensate victims of vaccination shall be taken out of the consolidated revenue fund.
The rules provided for under the Automobile Insurance Act and its regulations apply in determining the compensation.
They cover physical, social and occupational aspects.
Indemnities are indexed to the cost of living every year to protect beneficiaries against cost-of-living increases.