ARTICLE ELEVEN
RELEASES
The Approval Orders will declare that:
- each Class Member has released each of the Releasees from
any and all actions, causes of actions, liabilities, claims
and demands whatsoever of every nature or kind for damages,
contribution, indemnity, costs, expenses and interest which
any such Class Member ever had, now has or may hereafter
have in any way relating to or arising from (i) in the case
of each Transfused Class Member, the infection of a Primarily-Infected
Person with HCV during the Class Period or (ii) in the case
of each Hemophiliac Class Member, the infection of a Primarily-Infected
Hemophiliac with HCV from Blood (including, in each case,
the infection of a Secondarily-Infected Person) whether
such claims were made or could have been made in any proceeding
including the Class Actions;
- the Class Members, separately and severally, fully, finally
and forever release each of the Releasees, separately and
severally, and in each and every capacity that such actions,
causes of actions, liabilities, claims or demands may be
asserted against any Releasee;
- the Class Members are deemed to agree that they will not
make any claim or demand or take any actions or proceedings
against any Releasee or any other person in which any claim
could arise against any Releasee for damages and/or contribution
and/or indemnity and/or other relief over under the provisions
of the Negligence Act (Ontario) or its counterpart
in other jurisdictions, the common law or any other statute
of Ontario or any other jurisdiction in any way relating
to or arising from (i) in the case of each Transfused Class
Member, the infection of a Primarily-Infected Person with
HCV during the Class Period, or (ii) in the case of each
Hemophiliac Class Member, the infection of a Primarily-Infected
Hemophiliac with HCV from Blood (including, in each case,
the infection of a Secondarily-Infected Person), provided
that the foregoing excludes the CRCS;
- at the option of the FPT Governments or their representatives,
each Class Member receiving payment under one of the Plans
will either,
- pursue any claims as described in Section 11.01(c) that
the Class Member has against the CRCS, and assign to the
FPT Governments the proceeds received by the Class Member
from any such claims, or
- within the Companies’ Creditors Arrangement
Act (Canada) proceedings relating to the CRCS, prove,
vote and otherwise act to promote those claims as described
in Section 11.01(c) that the Class Member has against
the CRCS in accordance with directions given to the Class
Member by the FPT Governments or their representatives,
or, at the request of the FPT Governments or their representatives
grant to the FPT Governments and their representatives
such proxies or other forms of assignment as are necessary
for the FPT Governments to vote and otherwise act to promote
any such claim of the Class Member, or
- enter into a release of all of such claims against the
CRCS substantially in the form of the releases attached
as appendices to the Plans.
- the FPT Governments’ obligations and liabilities
pursuant to Article Four hereof and the Funding Agreement
constitute the consideration for the releases and other
matters referred to in Sections 11.01(a) to (d) inclusive
and such consideration is in full and final settlement and
satisfaction of any and all claims referred to therein and
the Class Members are limited to the compensation payable
pursuant to the Plans as funded, in whole or in part, pursuant
to the Funding Agreement as their only recourse on account
of any and all such actions, causes of actions, liabilities,
claims and demands.
11.02 Claims by Opt-Outs and Others
(top)
If any person who opts out of a Class Action or any Class
Member who is not bound by the provisions of this Agreement
or any other person who claims over or brings a third party
claim makes any claim or demand or takes any action or proceeding
against any FPT Government in any way relating to or arising
from (i) in the case of a Transfused Class Member, the infection
of a Primarily-Infected Person with HCV during the Class Period
or, (ii) in the case of a Hemophiliac Class Member, the infection
of a Primarily-Infected Hemophiliac with HCV from Blood (including,
in each case, the infection of a Secondarily-Infected Person),
the amount payable by a FPT Government to the person who opts
out of a Class Action or Class Member who is not bound by
the provisions of this Agreement or person who claims over
or brings a third party claim pursuant to either a final judgment
of a court in a contested action or a settlement approved
by one of the Courts and an amount equal to one-third of the
defence costs (including costs of counsel, disbursements and
applicable taxes) arising out of any action (whether an FPT
Government has been successful in defending the action or
not) or settlement and approved by one of the Courts will
be paid out of the Trust.
11.03 Dismissal of Actions (top)
Each of the Class Actions will be dismissed on the Approval
Date in accordance with the terms of the Approval Orders.
11.04 Cessation of Litigation
(top)
- Upon execution of this Agreement, the Class Action Plaintiffs
and Class Action Counsel will cooperate with the FPT Governments
to obtain approval of this Agreement and general participation
by Class Members in the Plans.
- Each Class Action Counsel will undertake, within five
Business Days after the Approval Date, not to commence or
assist or advise on the commencement or continuation of
any action or proceeding against any of the Releasees, or
against any person who may claim contribution or indemnity
from any of the Releasees in any way relating to or arising
from (i) in the case of a Transfused Class Member, the infection
of a Primarily-Infected Person with HCV during the Class
Period or (ii) in the case of a Hemophiliac Class Member,
the infection of a Primarily-Infected Hemophiliac with HCV
from Blood (including, in each case, the infection of a
Secondarily-Infected Person), provided that nothing in the
Agreement will prevent any Class Action Counsel from advising
any person to obtain independent legal advice before deciding
whether to opt out of a Class Action.
- Each Class Member who has commenced any action or proceeding
as described in Section 11.04(2), other than the Class Actions,
must consent to a dismissal of such action or proceeding
without costs before receiving any payment under a Plan.
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