ARTICLE ONE
INTERPRETATION
1.1 Definitions
"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 3.05 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 3.06 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 3.04 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 blood
products including packed red cells, platelets,
plasma (fresh frozen and banked), white blood cells
and cryoprecipitate and clotting factor products
including Factor VII, Factor VIII and Factor IX,
supplied, directly or indirectly, by the Canadian
Red Cross Society. Blood does not include Albumin
5%, Albumin 25%, Cytomegalovirus Immune Globulin,
Hepatitis B Immune Globulin, Rh Immune Globulin,
Varicella Zoster Immune Globulin, Immune Serum Globulin,
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 Hemophiliacs, 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 Hemophiliac 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 Hemophiliac 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 Hemophiliac"
means a person who would otherwise be a Primarily-Infected
Hemophiliac 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 Hemophiliac
HCV Plan including its Appendices, as amended, supplemented
or restated from time to time.
"Primarily-Infected Hemophiliac"
means a person who (i) has or had a congenital clotting
factor defect or deficiency including a defect or
deficiency in Factors V, VII, VIII, IX, XI, XII,
XIII or von Willebrand factors, (ii) received or
took Blood during the Class Period and (iii) is
or was infected with HCV unless:
- 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 Blood;
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 and Article Ten of the Settlement
Agreement.
"Secondarily-Infected Person" means:
- a Spouse of a Primarily-Infected Hemophiliac
or Opted-Out Primarily-Infected Hemophiliac who
is or was infected with HCV by such Primarily-Infected
Hemophiliac or Opted-Out Primarily-Infected Hemophiliac
provided the Claim of the Spouse is made:
- before the expiration of three years from
the date the Primarily-Infected Hemophiliac
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
Hemophiliac opts out;
- in accordance with the provisions of Section
3.04(1), where a HCV Personal Representative
makes the first Claim on behalf of a Primarily-Infected
Hemophiliac who is deceased; or
- in accordance with the provisions of Section
3.07, where the Primarily-Infected Hemophiliac
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 Hemophiliac or Opted-Out
Primarily-Infected Hemophiliac 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:
- (a) either of a man and a woman who,
- (i) are married to each other;
- (ii) 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;
- (iii) have Cohabited for at least two years;
or
- (iv) have Cohabited in a relationship of some
permanence if they are the natural Parents of
a Child; or
- (b) 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,
- (i) for at least two years; or
- (ii) 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.
"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.
1.02 Headings
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
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
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
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.
1.06 Residence
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 Hemophiliac or Opted-Out
Primarily-Infected Hemophiliac first received or
took Blood during the Class Period. An 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.
1.07 Currency
All references to currency herein are to lawful
money of Canada.
1.08 Appendices
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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