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 from time to time by the Courts pursuant to the
Settlement Agreement.
"Approval Date" means the date when the
judgments or orders of the Courts approving the Settlement
Agreement become final and, as a result, this Plan becomes
effective.
"Approved Dependant" means a Dependant whose
Claim made pursuant to Section 3.06 has been accepted by the
Administrator.
"Approved Family Member" means a Family
Member referred to in clause (a) of the definition of Family
Member in this Section 1.01 whose Claim made pursuant to Section
3.07 has been accepted by the Administrator.
"Approved HCV Infected Person"
means a HCV Infected Person whose Claim made pursuant to Section
3.01 or 3.02, as the case may be, has been accepted by the
Administrator.
"Approved HCV Personal Representative"
means a HCV Personal Representative whose Claim made pursuant
to Section 3.05 has been accepted by the Administrator.
"Arbitrator" means a person appointed as
an arbitrator by the Courts pursuant to the provisions of
Section 10.02 hereof and Article Ten of the Settlement Agreement.
"Average Industrial Wage
in Canada" means the Average Weekly Earnings (all
Industries), as published in Statistics Canada's on-line statistical
data base created from The Canadian Socio-Economic Information
Management System (CANSIM) data base or any successor data
base, for the most recent period for which such information
is published at the date the determination provided for in
Section 4.02 or 6.01 is to be made.
"Blood" means whole blood and the following
blood products: packed red cells, platelets, plasma (fresh
frozen and banked) and white blood cells. Blood does not include
Albumin 5%, Albumin 25%, Factor VIII, Porcine Factor VIII,
Factor IX, Factor VII, Cytomegalovirus Immune Globulin, Hepatitis
B Immune Globulin, Rh Immune Globulin, Varicella Zoster Immune
Globulin, Immune Serum Globulin, (FEIBA) FEVIII Inhibitor
Bypassing Activity, Autoplex (Activate Prothrombin Complex),
Tetanus Immune Globulin, Intravenous Immune Globulin (IVIG)
and Antithrombin III (ATIII).
"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.
"Child" includes:
- an adopted child;
- a child conceived before and born alive after his or her
parent's death; and
- a child to whom a person has demonstrated a settled intention
to treat as a child of his or her family;
but does not include a foster child placed in the home of
a HCV Infected Person for valuable consideration.
"Claim" means a claim made and a claim that
may be made in the future pursuant to the provisions of this
Plan.
"Class Action Counsel" has the meaning set
out in Section 1.01 of the Settlement Agreement.
"Class Members" means, collectively, all
Primarily-Infected Persons, all Secondarily-Infected Persons,
all HCV Personal Representatives and all Family Members but
excludes, for greater certainty, all persons who opt out of
a Class Action.
"Class Period" means the period from and
including 1 January 1986 to and including 1 July 1990.
"Cohabit" means to live together in a conjugal
relationship, whether within or outside marriage.
"Compensable HCV Drug Therapy" means interferon
or ribavirin, used alone or in combination, or any other treatment
that has a propensity to cause adverse side effects and that
has been approved by the Courts for compensation.
"Courts" means, collectively, the Supreme
Court of British Columbia, the Superior Court of Justice for
Ontario and the Superior Court of Québec.
"Dependant" means a Family Member of a HCV
Infected Person referred to in clauses (a) and (c) of the
definition of a Family Member in this Section 1.01 to whom
that HCV Infected Person was providing support or was under
a legal obligation to provide support on the date of the HCV
Infected Person's death.
"EAP" means the HIV Extraordinary Assistance
Plan announced by the government of Canada on 14 December
1989.
"Family Member" means:
- the Spouse, Child, Grandchild, Parent, Grandparent or
Sibling of a HCV Infected Person;
- the Spouse of a Child, Grandchild, Parent or Grandparent
of a HCV Infected Person;
- a former Spouse of a HCV Infected Person;
- a Child or other lineal descendant of a Grandchild of
a HCV Infected Person;
- a person of the opposite sex to a HCV Infected Person
who Cohabited for a period of at least one year with that
HCV Infected Person immediately before his or her death;
- a person of the opposite sex to a HCV Infected Person
who was Cohabiting with that HCV Infected Person at the
date of the HCV Infected Person's death and to whom that
HCV Infected Person was providing support or was under a
legal obligation to provide support on the date of the HCV
Infected Person's death; and
- any other person to whom a HCV Infected Person was providing
support for a period of at least three years immediately
prior to the HCV Infected Person's death.
unless any person described above opts out of the Class Action
in which he or she would otherwise be a Class Member.
"FPT Governments" means, collectively, (i)
the government of Canada, (ii) the governments of British
Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Québec,
New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland
(collectively, the "Provinces") and (iii) the governments
of the Northwest Territories, Nunavut and the Yukon Territory
(collectively, the "Territories").
"Fund Counsel" has the meaning set out in
Section 1.01 of the Settlement Agreement.
"Grandchild" means the Child of a Child.
"Grandparent" means the Parent of a Parent.
"Guardian" includes a litigation guardian,
guardian ad litem and other representative of a minor or mentally
incompetent in litigation proceedings.
"HCV" means the Hepatitis C virus.
"HCV Antibody Test" means a blood test performed
in Canada using a commercially available assay acceptable
to the Administrator demonstrating that the HCV antibody is
present in the blood of a person.
"HCV Infected Person" means a Primarily-Infected
Person or a Secondarily-Infected Person.
"HCV Personal Representative" means the
Personal Representative of a HCV Infected Person (whether
deceased, a minor or mentally incompetent) who does not opt
out of a Class Action.
"HIV" means the human immunodeficiency virus.
"HIV Secondarily-Infected Person" means
a person who is entitled to receive compensation under the
Program attached as Schedule C to the Settlement Agreement.
"Joint Committee" has the meaning set out
in Section 1.01 of the Settlement Agreement.
"MPTAP" means the HIV Multi-Provincial/Territorial
Assistance Program announced by the governments of the Provinces
and Territories on 15 September 1993.
"Nova Scotia Compensation Plan" means the
Nova Scotia HIV Assistance Program introduced in 1993 which
provides financial assistance and other benefits to persons
infected in Nova Scotia by HIV through the Canadian blood
supply.
"Opted-Out HCV Infected Person" means an
Opted-Out Primarily-Infected Person or a person who would
otherwise be a Secondarily-Infected Person but is not because
he or she opts out of the Class Action in which he or she
would otherwise be a Class Member.
"Opted-Out Primarily-Infected Person" means
a person who would otherwise be a Primarily-Infected Person
but is not because he or she opts out of the Class Action
in which he or she would otherwise be a Class Member.
"Parent" includes a person who has demonstrated
a settled intention to treat a Child as a child of his or
her family.
"PCR Test" means a polymerase chain reaction
test result from a commercially available assay acceptable
to the Administrator demonstrating that HCV is present in
a sample of blood of the person.
"Pension Index" has the meaning set out
in Section 7.02.
"Personal Representative" includes, if a
person is deceased, an executor, administrator, estate trustee,
trustee or liquidator of the deceased or, if the person is
a minor or mentally incompetent, the tutor, committee, Guardian
or curator of the person.
"Plan" means this Transfused HCV Plan including
its Appendices, as amended, supplemented or restated from
time to time.
"Primarily-Infected Person" means a person
who received a Blood transfusion in Canada during the Class
Period and who is or was infected with HCV unless:
- it is established on the balance of probabilities by the
Administrator that such person was not infected for the
first time with HCV by a Blood transfusion received in Canada
during the Class Period;
- such person used non-prescription intravenous drugs, and
such person has failed to establish on the balance of probabilities
that he or she was infected for the first time with HCV
by a Blood transfusion received in Canada during the Class
Period; or
- such person opts out of the Class Action in which he or
she would otherwise be a Class Member.
"Prime Rate" means
the rate of interest per annum established and reported by
the Bank of Montreal, or such other bank as the Courts may
direct, to the Bank of Canada from time to time as a reference
rate of interest for the determination of interest rates that
the Bank of Montreal, or such other bank as the Courts may
direct, charges to customers of varying degrees of creditworthiness
in Canada for Canadian dollar loans made by it in Canada.
"Referee" means a person appointed as a
referee by the Courts pursuant to the provisions of Section
10.02 hereof and Article Ten of the Settlement Agreement.
"Secondarily-Infected Person" means:
- a Spouse of a Primarily-Infected Person or Opted-Out Primarily-Infected
Person who is or was infected with HCV by such Primarily-Infected
Person or Opted-Out Primarily-Infected Person provided the
Claim of the Spouse is made:
- before the expiration of three years from the date the
Primarily-Infected Person first makes a Claim, his or
her HCV Personal Representative makes the first Claim
on his or her behalf or the Opted-Out Primarily-Infected
Person opts out;
- in accordance with the provisions of Section 3.05(1),
where a HCV Personal Representative makes the first Claim
on behalf of a Primarily-Infected Person who is deceased;
or
- in accordance with the provisions of Section 3.08, where
the Primarily-Infected Person has not made a Claim; or
- a Child of a HCV Infected Person or Opted-Out HCV Infected
Person who is or was infected with HCV by such HCV Infected
Person or Opted-Out HCV Infected Person;
but does not include:
- such Spouse or Child, if he or she used non-prescription
intravenous drugs, and fails to establish on the balance
of probabilities that he or she is or was infected for the
first time with HCV by:
- such Primarily-Infected Person or Opted-Out Primarily-Infected
Person in the case of a Spouse; or
- such HCV Infected Person or Opted-Out HCV Infected Person
in the case of a Child; or
- such Spouse or Child if he or she opts out of the Class
Action in which he or she would otherwise be a Class Member.
"Settlement Agreement" means the agreement
made as of 15 June 1999 between the FPT Governments and the
plaintiffs in the Class Actions.
"Sibling" means a Child of one or both of
the Parents of a HCV Infected Person.
"Spouse" means:
- either of a man and a woman who,
- are married to each other;
- have together entered into a marriage that is voidable
or void, in good faith on the part of the person asserting
a right under this Plan;
- have Cohabited for at least two years; or
- have Cohabited in a relationship of some permanence
if they are the natural Parents of a Child; or
- either of two persons of the same sex who have lived together
in a close personal relationship that would constitute a
conjugal relationship if they were not of the same sex,
- for at least two years; or
- in a relationship of some permanence if they are the
Parents of a Child.
"Term" means the period commencing on the
Approval Date and ending on the date that this Plan is terminated
by the Courts.
"Traceback Procedure" means a targeted search
for and investigation of the donor and/or the units of Blood
received by a HCV Infected Person.
"Trust" means the trust to be established
by the FPT Governments pursuant to the Funding Agreement attached
as Schedule D to the Settlement Agreement.
"Trust Fund" means the fund to be established
by the FPT Governments pursuant to the Funding Agreement attached
as Schedule D to the Settlement Agreement.
The division of this Plan 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 Plan. The terms "hereof",
"hereunder" and similar expressions refer to this
Plan 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 Plan.
1.03 Extended Meanings (top)
In this Plan 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, associates, trusts, unincorporated organizations,
corporations and governmental authorities. The term "including"
means "including without limiting the generality of the
foregoing".
1.04 Statutory References (top)
In this Plan, 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.
1.05 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.
A Class Member is deemed to be resident in the Province or
Territory where he or she ordinarily resides or, if the Class
Member resides outside of Canada, in the Province or Territory
where the relevant Primarily-Infected Person or Opted-Out
Primarily-Infected Person first received a Blood transfusion
during the Class Period. A HCV Personal Representative will
be deemed to be resident in the Province or Territory where
the relevant HCV Infected Person is, or was deemed to be,
resident.
All references to currency herein are to lawful money of
Canada..
The following are the Appendices to this Plan:
Appendix A - Social Benefits Legislation;
Appendix B - Release;
Appendix C - Reference Rules; and
Appendix D - Arbitration Rules.
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