ARTICLE
ONE
INTERPRETATION
1.01 Definitions (top)
In this Agreement, in addition to the terms defined in the
description of the Parties and in the recitals set out above:
"Administrator" means the administrator
appointed by the Courts and its successors appointed from
time to time pursuant to the provisions of Articles Five and
Ten.
"Agreement" means this agreement, including
its recitals and Schedules, as amended, supplemented or restated
from time to time.
"Approval Date" means the date when the
last Approval Order becomes final, provided there are no material
differences in the Approval Orders.
"Approval Orders" means the judgments or
orders of the Courts to be granted approving this Agreement
as being a good faith, fair, reasonable and adequate settlement
of the Class Actions pursuant to the class proceedings legislation
in British Columbia, Ontario and Québec.
"Arbitrator" means a person appointed as
an arbitrator by the Courts pursuant to the provisions of
Article Ten hereof and Article Ten of a Plan.
"Auditors" means the auditors appointed
by the Courts and their successors appointed from time to
time pursuant to the provisions of Articles Eight and Ten.
"Blood" means Blood as defined in the Transfused
HCV Plan or, in relation to hemophiliacs, as defined in the
Hemophiliac HCV Plan.
"Business Day" means a day other than a
Saturday or a Sunday or a day observed as a holiday under
the laws of the Province or Territory in which the person
to whom notice is given is situated or the federal laws of
Canada applicable in the said Province or Territory.
"Claim" means a claim made and a claim that
may be made in the future pursuant to the provisions of a
Plan.
"Class Action Counsel" means the respective
counsel for each of the Class Action Plaintiffs.
"Class Actions" means, collectively, the
British Columbia Transfused Class Action, the Ontario Transfused
Class Action (which includes all Class Members as defined
in the Transfused HCV Plan who are not included in the British
Columbia Transfused Class Action or the Québec Transfused
Class Action), the Québec Transfused Class Action, the British
Columbia Hemophiliac Class Action, the Ontario Hemophiliac
Class Action (which includes all Class Members as defined
in the Hemophiliac HCV Plan who are not included in the British
Columbia Hemophiliac Class Action or the Québec Hemophiliac
Class Action) and the Québec Hemophiliac Class Action.
"Class Members" means, collectively, the
Transfused Class Members and the Hemophiliac Class Members.
"Class Period" means the period from and
including 1 January 1986 to and including 1 July 1990.
"Contribution Amount" has the meaning set
out in Section 1.01 of the Funding Agreement.
"Courts" means, collectively, the Supreme
Court of British Columbia, the Superior Court of Justice for
Ontario and the Superior Court of Québec.
"CRCS" means The Canadian Red Cross Society
and its successors.
"Disbursements" has the meaning set out
in Section 1.01 of the Funding Agreement.
"Family Members" means the Family Members
as defined in both of the Plans.
"Federal Government" means the government
of Canada.
"Fund Counsel" means the counsel appointed
by the Courts and its successors appointed from time to time
pursuant to the provisions of Articles Seven and Ten.
"Funding Agreement" means an agreement in
the form attached hereto as Schedule D.
"HCV" means the Hepatitis C virus.
"Hemophiliac Class Members" means Class
Members as defined in the Hemophiliac HCV Plan.
"Hemophiliac HCV Plan" has the meaning set
out in Section 3.02.
"HIV" means the human immunodeficiency virus.
"HIV Secondarily-Infected Persons" means
persons who are entitled to receive compensation under the
Program.
"Investment Advisors" means the investment
advisors appointed by the Courts and their successors appointed
from time to time pursuant to the provisions of Article Ten.
"Joint Committee" means a committee of four
persons comprised of one Class Action Counsel from each of
the Transfused Class Actions and one Class Action Counsel
from the Hemophiliac Class Actions.
"Parties" means each of the FPT Governments,
the British Columbia Transfused Plaintiff, the Ontario Transfused
Plaintiffs, the Québec Transfused Plaintiff, the British Columbia
Hemophilia Plaintiff, the Ontario Hemophilia Plaintiffs and
the Québec Hemophilia Plaintiff.
"Plans" means, collectively, the Hemophiliac
HCV Plan and the Transfused HCV Plan.
"Primarily-Infected Person" has the meaning
set out in Section 1.01 of the Transfused HCV Plan.
"Primarily-Infected Hemophiliac" has the
meaning set out in Section 1.01 of the Hemophiliac HCV Plan.
"Program" means the program described in
Schedule C hereto which devolved from the Federal/Provincial/Territorial
Assistance Program for HIV Secondarily-Infected Persons announced
by the FPT Governments on 15 December 1998.
"Provinces" means, collectively, British
Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Québec,
New Brunswick, Nova Scotia, PEI and Newfoundland.
"Referee" means a person appointed as a
referee by the Courts pursuant to the provisions of Article
Ten hereof and Article Ten of a Plan.
"Releasees" means, individually and collectively,
each of the FPT Governments,
each of the past, present, and future ministers and employees
of each FPT Government,
each of the past and present agents of each FPT Government,
the Canadian Blood Agency,
the Canadian Blood Committee or its members,
each operator of a hospital or health care facility at
which a Primarily-Infected Person or Primarily-Infected
Hemophiliac received or took Blood, or a HCV Infected Person
received treatment, care or advice in any way relating to
or arising from the infection of the HCV Infected Person
with HCV,
each health caregiver who treated or provided care or advice
to a HCV Infected Person in any way relating to or arising
from the infection of the HCV Infected Person with HCV,
and
any person engaged in the business of collecting, manufacturing,
purchasing, processing, supplying or distributing Blood,
including their respective past, present, and future parent,
subsidiary and affiliated corporations, employees, agents,
officers, directors, shareholders, volunteers, representatives,
executors, administrators, successors and assigns. Each of
the FPT Governments is a trustee for the purpose of asserting
the benefit of the covenants set forth in Section 11.01 for
those persons listed in (b) to (h) inclusive and holds the
benefit of those covenants on their behalf as well as on its
own behalf. For greater certainty, the CRCS is not a Releasee.
"Secondarily-Infected Person" has the meaning
set out in Section 1.01 of the Transfused HCV Plan or the
Hemophiliac HCV Plan, as applicable.
"Settlement Amount" has the meaning set
out in Section 1.01 of the Funding Agreement.
"Term" means the period from and including
the Approval Date to the date when this Agreement is terminated
pursuant to the provisions of Section 12.03.
"Territories" means, collectively, the Northwest
Territories, Nunavut and the Yukon Territory.
"Transfused Class Members" means Class Members
as defined in the Transfused HCV Plan.
"Transfused HCV Plan" has the meaning set
out in Section 3.01.
"Trust" has the meaning set out in Section
1.01 of the Funding Agreement.
"Trust Fund" means the trust fund to be
established pursuant to the Funding Agreement.
"Trustee" means the trustee appointed by
the Courts and its successors appointed from time to time
pursuant to the provisions of Articles Six and Ten.
1.02 Headings (top)
The division of this Agreement into Articles and Sections
and the insertion of a table of contents and headings are
for convenience of reference only and do not affect the construction
or interpretation of this Agreement. The terms "herein",
"hereof", "hereunder" and similar expressions
refer to this Agreement and not to any particular Article,
Section or other portion hereof. Unless something in the subject
matter or context is inconsistent therewith, references herein
to Articles, Sections and Schedules are to Articles, Sections
and Schedules of this Agreement.
1.03 Extended Meanings (top)
In this Agreement words importing the singular number include
the plural and vice versa, words importing any gender
include all genders and words importing persons include individuals,
partnerships, associations, trusts, unincorporated organizations,
corporations and governmental authorities. The term "including"
means "including without limiting the generality of the
foregoing".
1.04 No Contra Proferentem (top)
The Parties acknowledge that their respective legal counsel
have reviewed and participated in settling the terms of this
Agreement and they agree that any rule of construction to
the effect that any ambiguity is to be resolved against the
drafting party is not applicable in interpreting this Agreement.
1.05 Statutory References (top)
In this Agreement, unless something in the subject matter
or context is inconsistent therewith or unless otherwise herein
provided, a reference to any statute is to that statute as
enacted on the date hereof or as the same may from time to
time be amended, re-enacted or replaced and includes any regulations
made thereunder.
1.06 Day for any Action (top)
If any day on or by which any action required to be taken
hereunder is not a Business Day, such action must be taken
on or by the next succeeding day which is a Business Day.
1.07 Final Order (top)
For the purposes of this Agreement a judgment or order becomes
final when the time for appealing or seeking leave to appeal
the judgment or order has expired without an appeal being
taken or leave to appeal being sought or, in the event that
an appeal is taken or leave to appeal is sought, when such
appeal or leave to appeal and such further appeals as may
be taken have been disposed of and the time for further appeal,
if any, has expired.
All references to currency herein are to lawful money of
Canada.
The following are the Schedules to this Agreement:
Schedule A - Transfused HCV Plan;
Schedule B - Hemophiliac HCV Plan;
Schedule C - Program;
Schedule D - Funding Agreement; and
Schedule E - Social Benefits Legislation.
1.10 Obligations of the FPT Governments
(top)
It is understood that the FPT Governments will not have any
obligations relating to the ongoing operations of the Plans
except for their obligations as set out in Article Four of
this Agreement and in the Funding Agreement.
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