Tag Archives: Class actions

Laforme v Law Society of Ontario, 2020 ONLSTH 112

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Ontario’s Law Society Tribunal – Hearing Division granted Retired Justice Harry Laforme permission to appear as counsel in two class proceedings against Canada regarding drinking water advisories based on exceptional circumstances, including the enhancement of the administration of justice by allowing him to assist Indigenous communities with these specific proceedings. 

Indigenous Law Centre – CaseWatch Blog

The Honourable Harry S. LaForme [“Licensee”] is a retired judge of the Ontario Court of Appeal. He has applied for permission to appear as counsel before the Federal Court of Canada and the Manitoba Court of Queen’s Bench on two specific matters relating to access to clean drinking water on First Nation reserves.

The test for approval required by Rule 7.7-1.2 of the Rules of Professional Conduct [“Rules”] is onerous. The Licensee must establish that “exceptional circumstances” exist to grant approval and the hearing panel must also determine whether any restrictions should apply to the Licensee’s appearance as counsel.

The Licensee is Anishinabe of the Eagle Clan of the Mississaugas of the Credit First Nation in southern Ontario. In 1994, the Licensee was appointed a judge of the Ontario Court of Justice (General Division), which is now the Superior Court of Justice. He was one of the first Indigenous judges appointed to this level of trial court in Ontario, and only one of three in Canada.

OKT and McCarthy Tétrault LLP [“McCarthys”] are jointly representing three First Nations in their class actions against Canada regarding drinking water advisories on First Nation reserves across the country, alleging breaches of the Canadian Charter of Rights and Freedoms rights of security of the person and equality, as well as the Crown’s fiduciary duties to First Nations for failure to provide clean drinking water on reserves. The actions seek to compel Canada to provide compensation and safe drinking water on reserves.

OKT has been jointly retained with McCarthy’s to act as class counsel in these proceedings and represents Curve Lake First Nation, Neskantaga First Nation, and Tataskweyak Cree Nation to prosecute the class action, including certification and a common issues trial. The Licensee is requesting to appear as counsel throughout both proceedings. All three First Nations want the Licensee to appear as one of their counsel along with other members of the McCarthy’s and OKT teams. None of the other members of those teams has the combined personal experience of living on reserve and the extensive professional experience working with First Nations that the Licensee possesses.

Canada, the sole defendant in both the Tataskweyak and Curve Lake Actions, does not oppose this application and will abide by the Tribunal’s decision. The Law Society consented to the Licensee’s application and together with the Licensee submitted that exceptional circumstances exist in this matter.

The concerns expressed about former judges appearing as counsel in the courts are related to apprehension of bias, conflict of interest, and most importantly, public perception and confidence in the justice system. While the Rule does not provide any guidance as to what constitutes exceptional circumstances, based on the particular facts of the application in question, the concerns identified above – apprehension of bias, conflict of interest and public perception and confidence in the justice system – have either been eliminated or materially ameliorated.

It is determined that exceptional circumstances exist such that the Licensee should be granted permission to appear as counsel in the two class proceedings. The applicant is restricted from using his honourific or making any reference to his status as a retired judge in any appearances in the two class action proceedings as listed above, in the courtroom and any pleadings, affidavits or other documents to be filed as part of the court record, except as required by the applicant’s professional responsibilities or any direction or order of the respective court.

Bruno v Samson Cree Nation, 2020 ABQB 504

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The Court certified a class action against the Samson Cree Nation for members from whom payment of per capita distributions, special pays, and interest were withheld during litigation and disputes over members added by virtue of Bill C-31 in 1987. The majority of common issues were approved as sought, or as modified by the Court or agreed to by counsel, and can proceed to trial. 

Indigenous Law Centre – CaseWatch Blog

For most of its history, the Indian Act based entitlement to Registered Indian status and band membership on descent through the male parent. This system of eligibility for Indian registration based on descent through the male line was in effect until Bill C-31 was passed in 1985, in response to the equality commands of the Charter. Women who lost their Registered Indian status before 1985 for “marrying out” were restored to status by Bill C-31. These women, and any children they had with their non-Indian husbands, could be registered as Indians pursuant to s 6 of the Indian Act, enacted by Bill C-31.

Before Bill C-31, the Government of Canada maintained all Band lists, and determined Band eligibility on the basis of its statutory and administrative rules about parentage and marriage. After Bill C-31, this dual role for Canada continued with respect to many Bands. However, Bill C-31 also gave Bands the option of taking control of their membership by establishing their own membership codes.

The Plaintiff, Bonnie Lee Bruno [“Bruno”], is a member of the Samson Cree Nation [“Nation”]. Her name was added to the Band List of the Nation maintained by the Minister of Indian Affairs and Northern Development [“Minister”], under the provisions of Bill C-31. Previously enfranchised Indian women and their children became members of Indian Bands on lists administered by the Minister, unless First Nations developed band membership rules approved by the Minister on or before June 28, 1987. The Court found that, on the unchallenged evidence before it, that this was not done in this matter, thus giving primacy to the list maintained by the Minister on which the Plaintiff, and allegedly others in the class, had status effective June 29, 1987. 233 individuals were added as at that date.

Prior to the passage of Bill C-31, there was considerable controversy within many First Nations over, among other things, questions over whether the women who had “married out” should be accepted back into the community and as Band members. After Bill C-31 came into effect, there were numerous challenges before the courts regarding Band membership and the equality rights issues raised by the history of enfranchisement and the attempted solution of Bill C-31.

This class proceeding relates to a claim of class members from whom, after they were added to the Band List of the Samson Cree Nation [“Nation”] by virtue of Bill C-31, the Nation withheld payment of per capita distributions and Special Pays, and interest, from 1988 to 1995 per the Plaintiff, and lesser or greater time periods as to other class members. Beginning in June 1987, the Plaintiff and other individuals’ names were entered onto the Samson Nation Band List maintained by the Minister pursuant to Bill C-31, but that the Class Plaintiffs only became members of Samson Nation about 1995 when Samson recognized and admitted them as members of the Samson Nation.

The first criterion for certification is that the plaintiff’s pleading discloses a cause(s) of action. No evidence is required, but rather the facts, as pleaded, are assumed to be true (Hunt v Carey Canada, [1990] 2 SCR 959). The pleading is to be read generously (Cloud v Canada (2004), 73 OR (3d) 401 (CA)). The standard test for unjust enrichment is: an enrichment of the defendant; a corresponding deprivation of the plaintiff; and the absence of a juristic reason for the enrichment (Garland v Consumers’ Gas Co, [2004] 1 SCR 629).

At this stage, the Plaintiff merely needs to allege an arguable cause of action, which she has done. Proof of the allegation is for trial. The Court finds that a cause of action for unjust enrichment has been established for the purpose of certification. It is determined that this is an appropriate case to proceed by way of a class proceeding, and the majority of 16 common issues and 4 subclass common issues are approved as sought, or, in some cases, with modification.

Laliberte v Day, 2020 FCA 119

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Appeal dismissed. The motion judge made no reviewable error in granting the carriage of a proposed class proceeding to a representative plaintiff on behalf of Métis and Non-Status Indian groups affected by the Sixties Scoop.

Indigenous Law Centre – CaseWatch Blog

The Sixties Scoop was a federal program under which Status Indian, Inuit, Métis, and Non-Status Indian children were taken from their parents and placed in non-Indigenous foster homes or put up for adoption. This appeal concerned the carriage of a proposed class proceeding on behalf of Métis and Non-Status Indians affected by the Sixties Scoop. In the settlement of the Sixties Scoop litigation approved in Riddle v Canada, 2018 FC 901, and Brown v Canada (AG), 2018 ONSC 3429, Status Indian and Inuit Sixties Scoop survivors were only included.

Two motions were brought and heard together in the Federal Court seeking carriage. One motion sought carriage for a proposed representative plaintiff in Day v AG of Canada, represented by two law firms based in Toronto [“Day action”]. In the order under appeal, the Federal Court granted carriage to the plaintiff in the Day action, and stayed the other three actions [collectively as the “LMO action”]. The order was the first contested carriage order issued by the Federal Court. Counsel for the LMO action submit that the motion judge committed both errors of law and palpable and overriding errors of fact in granting carriage to the plaintiff in the Day action.

The motion judge found Mr. Day to be a better representative plaintiff because he reflected the type of circumstances and damage that is common to both the Métis and Non-Status Indian groups and was a textbook claimant and a mirror for both Indigenous components of the litigation. Counsel for the LMO action submits that the motion judge’s treatment of this factor amounted instead to imposing a requirement that the representative plaintiff be typical of the class (Western Canadian Shopping Centres Inc v Dutton, 2001 SCC 46).

The Court does not agree that in going on to consider Mr. Day’s circumstances and the nature of the damage that he claims, the motion judge improperly imposed a typicality requirement. The motion judge instead treated the dispute as one that would be litigated to its conclusion, and recognized that Mr. Day personified some of the worst consequences of the Sixties Scoop. His circumstances and the damage he claims was an advantageous platform for a claim on behalf of the class.

The factors that may be considered in a carriage motion are not ends in themselves. Rather, they are means of assisting the court, in the unique context of each case, to determine the best interests of the class (Mancinelli v Barrick Gold Corporation, 2016 ONCA 571; Strohmaier v KS, 2019 BCCA 388; and McSherry v Zimmer GMBH, 2012 ONSC 4113). Not only are these factors not exhaustive; they are also not watertight compartments (Quenneville v Audi AG, 2018 ONSC 1530; Winder v Marriott International Inc, 2019 ONSC 5766; and Rogers v Aphria Inc, 2019 ONSC 3698).

One of the comparisons the motion judge drew was between the litigation experience of the two sets of counsel. He found that both have extensive class action experience, both have experience in the Sixties Scoop and residential schools class actions, and both have experience acting for Métis people, but counsel in the Day action have experience acting for Non-Status Indians as well.

The motion judge saw as leap-frogging the addition of Non-Status Indians to the class definition in the LMO action after the carriage motions had been scheduled. In the carriage motion context, “leap-frogging” refers to an attempt by one contender for carriage to improve its position after the motion has been scheduled by taking the benefit of the work of another contender; for example, by a copycat amendment to pleadings (Mancinelli et al v Barrick Gold Corporation et al, 2015 ONSC 2717, affirmed 2016 ONCA 571 [“Mancinelli”]). A rule has been rejected that carriage motions be decided based on a “freeze frame” as of the date the motion is filed, however, the court should be suspicious of conspicuous new activity after the filing of a carriage motion or of any attempts to ‘leapfrog’ a lagging action ahead of a more advanced one (Mancinelli).

McLean v Canada, 2019 FC 1075

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Motion approved for the Indian Day School Settlement Agreement.

Indigenous Law Centre – CaseWatch Blog

Motion approved for an Indian Day School settlement agreement [“Settlement”]. To approve a class action, the Court must determine if the settlement is, in all the circumstances, fair, reasonable, and in the best interests of the approximately 120,000 aging people that attended these Indian Day Schools [“Survivor Class Members”] as a whole.

The Settlement provides up to $1.4 billion in compensation to be shared by those who attended the over 700 Federal Indian Day Schools. For over 50 years, many Indigenous children were compelled to attend Indian Day Schools operated by the Defendant. The principal difference between Indian Day School students and Residential School students is that Day School students went home at night. Attendance at these schools was compulsory. Truancy resulted in punishment for not only the student, but also for the family including the cancellation of the “allowance” to which parents were entitled. Although the Defendant does not admit liability in the Settlement Agreement, the Settlement acknowledges that children were divided from their families and culture, and were denied their heritage. Many were physically, emotionally and sexually abused.

The proposed settlement represents access to justice for a class of Survivor Class Members and their spouses, children, and grandchildren. Indian Day School students were not included in the now famous Indian Residential School Settlement [IRSS]. However, many of the same abuses recognized in the IRSS were inflicted on those attending the Indian Day Schools. Not all settlements are good and settlement will not always be better than litigation, but this is a case where this Settlement, although general, is vastly preferable to the risky litigation, delays, costs, trauma and uncertainty inherent in this litigation.

It is important that the Settlement be looked at as a whole. The Court must refrain from rewriting the substantive terms of the Settlement or assessing the interests of an individual class member in isolation from the entire class (Manuge v R, 2013 FC 341; Hunt v Mezentco Solutions Inc, 2017 ONSC 2140). Further, a class action settlement is not required to be perfect as it must only fall within a “zone or range of reasonableness” (Châteauneuf v R, 2006 FC 286; Ontario New Home Warranty Program v Chevron Chemical Co, 46 OR (3d)).

It was determined that the Settlement reduced relevant risks, simplified the compensation process, and allowed family class members who did not receive direct compensation to participate in the healing process through the Settlement’s Legacy Fund. The Court was concerned with the litigation being drawn out, which was particularly meaningful as the Settlement involved an aging class of whom approximately 1,800 pass away each year. These considerations, in combination with the Court’s communication with class members, led the Court to determine that the Settlement was fair, reasonable, and in the best interests of the Class as a whole.

Brake v Canada (AG), 2019 FCA 274

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Appeal allowed in part. Action is certified as a class proceeding that will determine important common questions affecting over 80,000 people regarding the Qalipu Mi’kmaq First Nation Band’s stringent membership criteria.

Native Law Centre CaseWatch Blog

This is an application to overturn an order by the Federal Court that refused to convert Mr. Brake’s application for judicial review into an action under ss 18.4(2) of the Federal Courts Act [“Act”] and certify it as a class proceeding under Rule 334.16(1) of the Federal Courts Rules [“FCR”]. Mr. Brake passed away just before this Court rendered judgment, but his application for judicial review continues. This Court grants the appeal in part, sets aside the order that denies certification under Rule 334.16(1), and grants the motion for certification.

The Qalipu Mi’kmaq First Nation Band [“Band”] was recognized as a Band under the Indian Act. Under a 2008 Agreement, there was higher than expected enrollment. Canada, along with the Federation of Newfoundland Indians, made it more difficult for people to qualify as members of the Band through changes under a 2013 Supplemental Agreement. Using a paragraph in the 2008 Agreement to authorize making these changes, many like Mr. Brake no longer qualified for Band membership. He had applied for judicial review of the rejection of his application, and others, under the new criteria. Alleging procedural unfairness, substantive unreasonableness and lack of good faith, he seeks, among other things, a redetermination of the membership applications under the original 2008 Agreement.

Mr. Brake followed what is described as the “Tihomirovs approach” (Tihomirovs v Canada (Minister of Citizenship and Immigration), 2005 FCA 308 [“Tihomirovs”]) procedurally in the Federal Court. This approach would transform his proceeding from an individual proceeding into a class proceeding. The goal was to seek both administrative law remedies against the decision and damages caused by the decision. The Federal Court declined to certify Mr. Brake’s proceeding as a class proceeding, reasoning that the issues raised in the proposed class proceeding be determined through a test case: Wells v Canada (AG), [2019] 2 CNLR 321 [“Wells”]. It cited Tihomirovs for the proposition that if the reason for conversion was to support an application for certification as a class proceeding and if certification were denied, then conversion should also be denied. Not only is the Federal Court’s decision in Wells only persuasive, not binding (Apotex Inc v Allergan Inc, 2012 FCA 308), but Mr. Brake did not consent to his claims being decided in Wells as a “lead case”, nor was there opportunity to make submissions or present evidence.

To seek both administrative law remedies and damages simultaneously, one must launch two separate proceedings. For example, an application for judicial review started by a notice of application and an action for damages started by a statement of claim. This has obvious ramifications for access to justice because it is difficult to prosecute one proceeding all the way through to judgment. Having more than one proceeding compounds that difficulty and can also result in unnecessary expenditure of judicial resources and conflicting results.

Rule 105 of the FCR permits the consolidation of multiple proceedings of any sort, allowing them to progress as if they were one proceeding governed by one set of procedures. Therefore, an application for judicial review can be consolidated with an action for damages. At the end of the consolidated proceeding, the Court issues two judgments, one for the application for judicial review and one for the action. Where appropriate, each judgment will give the relief available in each proceeding. The judgment in the application for judicial review will give administrative law relief and the judgment in the action will give damages. Rule 334.16(1) provides that a “proceeding” can be certified as a “class proceeding”. An application for judicial review that has been consolidated with an action can be a “proceeding” that can become a class proceeding under Rule 334.16(1).

There are three recognized ways in case law to certify consolidated judicial reviews and actions as class proceedings: 1) the Hinton approach is when an application for judicial review seeking administrative law remedies is started. A separate action for damages for the administrative misconduct is also started and the two are consolidated. If desired, certification of the consolidated proceeding as a class proceeding can be sought under Rule 334.16(1) (Canada (Citizenship and Immigration) v Hinton, 2008 FCA 215 [“Hinton”]); 2) the Paradis Honey approach where an action is started. In the statement of claim starting the action, both administrative law remedies and damages for the administrative misconduct are sought. But the entitlement to damages is pleaded as a public law cause of action for unreasonable or invalid decision-making (Paradis Honey Ltd v Canada (Attorney General), 2015 FCA 89 [“Paradis Honey”]); and 3) the Tihomirovs approach where an application for judicial review seeking administrative law remedies is started. A motion for an order permitting the judicial review to be prosecuted as an action under ss 18.4(2) of the Act is brought. Then the litigant brings a motion for certification as a class proceeding under Rule 334.16(1). In support of the certification motion, a proposed statement of claim is filed that simultaneously seeks administrative law remedies and damages. The Court determines the motions together.

Under the Tihomirovs approach, the draft, unissued statement of claim becomes the subject of a certification motion which is contrary to the text of Rule 334.16(1). It speaks of certifying an existing proceeding, not a proposed proceeding. Tihomirovs, however, remains good law (Miller v Canada (AG), 2002 FCA 370). Yet Tihomirovs sits uncomfortably within the Act, the FCR and associated jurisprudence. Tihomirovs needs to be tweaked to address these concerns so that it can fit more comfortably into the FCR. The Court should consider the proposed statement of claim as if it were finalized and filed, then assess whether the action and the application for judicial review, if they were consolidated, would meet the certification requirements under Rule 334.16. It should require that within a short period of time the proposed statement of claim be filed as the statement of claim, the action be consolidated with the application, and the consolidated proceeding be prosecuted as if it were an action. Under this revised approach, nothing is being converted to an action under ss 18.4(2) of the Act, consistent with the jurisprudence of this Court (Canada (Human Rights Commission) v Saddle Lake Cree Nation, 2018 FCA 228). Instead, the Court is attaching a term to its certification order allowing the consolidated proceeding to be prosecuted as if it were an action.

The revised Tihomirovs approach places the litigants in substantially the same position they would have been in if they followed the Hinton or the Paradis Honey approaches. It would be wise for parties in the future to follow these latter approaches, the Paradis Honey approach being the simplest of all, when applying to certify a class proceeding where they seek simultaneously the invalidation of administrative decision-making and damages for wrongful administrative decision-making as in this matter.

Bird v Blott, 2019 ABQB 764

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Application for certification granted with costs. A class action will go forward to sue an Albertan lawyer who was disbarred for his misconduct in managing IRS files.

Native Law Centre
CaseWatch Blog

This is an application by the Plaintiffs for certification of a class action pursuant to s 5 of the Class Proceedings Act [“CPA”]. It concerns the alleged mishandling of approximately 5600 residential school claims by former Calgary lawyer, David Blott, on behalf of Aboriginal clients who were signed up to retain Blott by the form filling efforts of Honour Walk Ltd. Mr. Blott was reported to have received 21 million dollars for his firm’s services. The absolute failure of Blott to provide individualized legal services to the Plaintiffs in the Residential School Class Action is well documented in judicial decisions (Fontaine v Canada (AG), 2012 BCSC 839 and 2012 BCSC 1671). He had set up his practice in such a way as to maximize profit and minimize the effort required.

In order for the Court to certify these proceedings, it must be satisfied that the conditions set out in the CPA have been met, but be construed generously. An overly restrictive approach must be avoided in order to realize the benefits, such as judicial economy, access to justice and behavior modification and so on, by those who cause harm at the certification stage (Hollick v Metropolitan Toronto (Municipality), 2001 SCC 68) [“Hollick”]; Cloud v Canada (AG), (2004) 73 OR (3d) 401 (ONCA)).

The statement of claim disclosed a cause of action. The next condition for certification required an identifiable class that should be defined independently of the merits of the action (Western Canadian Shopping Centres Inc v Dutton, 2001 SCC 46). This definition included those who retained the Blott Defendants arising out of the residential school experience and should not be unnecessarily broad (Hollick). The way in which the Blott Defendants arranged Mr. Blott’s practice essentially ruled out the possibility of a solicitor and client relationship, which Mr. Blott’s clients were entitled to expect. The Court is satisfied that there is an identifiable class.

There is a common issue among this identifiable class of an experience of being largely ignored and exploited. It turned what was supposed to provide reconciliation and closure into another traumatic experience. It would appear that most of Mr. Blott’s clients will have had very similar complaints and circumstances. The fact that some of them may have been affected differently does not mean there are no common issues. The Court is satisfied that the condition of a common issue for certification has been met.

Thousands of innocent people retained Blott to seek justice for them, as part of a class of residential school attendees. This class of people are vulnerable and for the most part, impecunious. As with the resolving of the residential school claims through a class proceeding, it is hard to see how justice can ever be obtained for the Blott clients other than through another class proceeding. It is important to proceed with their claims as a class because, like the residential school claims, it will be useful to establish standards and a basis for comparison when one does analyze the quantum of each claim.

The law firm acting on behalf of the Plaintiff class is doing this on a pro-bono basis, and there can be no doubt that the efficiency of dealing with all the claims in this way is far superior to numerous individual claims. The Court is satisfied that a class proceeding is the preferable procedure for this action.

Fontaine v Canada (AG), a CaseWatch Blog series of five case summaries

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This is a special series of five Fontaine v Canada (AG) case summaries that involves the Chief Adjudicator of the Independent Assessment Process of the Indian Residential Schools Settlement Agreement.

 

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

Fontaine v Canada (AG), 2018 ONSC 5197 (“The First Direction”)

Direction to terminate the Chief Adjudicator from his duties and all pending litigation that involves the Indian Residential Schools Settlement Agreement.

The Chief Adjudicator has been directed to be removed from his duties from the Independent Assessment Process (“IAP”), a central feature of the Indian Residential Schools Settlement Agreement (“IRSSA”). IRSSA is Canada’s largest and most complex class action settlement that was negotiated over ten years ago. The parties included Canada, representatives of the Indigenous Peoples in Canada, and of the religious organizations that operated Indian Residential Schools (“IRS”). They diligently worked to negotiate a fair, comprehensive and lasting resolution of the legacy of IRSs. The courts that approved the IRSSA have an ongoing role in supervising, implementing, and administering the IRSSA. A simplified and expedited process for the Courts to direct the IRSSA’s implementation and administration is known as a Request for Direction (“RFD”).

The IAP is an elaborate post-settlement claims adjudication process which include means for survivors to seek compensation for claims of serious abuse and other wrongful acts. The Chief Adjudicator’s duties are set out in the IRSSA and the role is responsible for the adjudication of IAP claims through the assistance of an administrative apparatus. The IAP must constitute an autonomous adjudicative body similar to a court and subject to court supervision. The Chief Adjudicator is retained on contract to ensure independence and reports directly to the courts that supervise the Settlement Agreement. The Chief Adjudicator is not independent, however, as judges are, as the role is accountable to the Supervising Courts. That approach is consistent with the leading authorities about the role of autonomous adjudicative bodies in matters before the courts (Ontario (Energy Board) v Ontario Power Generation Inc; Ontario (Children’s Lawyer) v Ontario (Information and Privacy Commissioner (“Goodis”)).

The Chief Adjudicator is obliged to report to the Courts at least quarterly. The most recent, the 43rd Quarterly Report to the Courts, was incomplete, as there were a number of unreported matters. The Chief Adjudicator had not only chosen to participate in several appeals before various appellate courts arising from the IAP, but had amplified that partisan position and now defies the Courts to which he is accountable. The Chief Adjudicator’s standing was challenged in the British Columbia Court of Appeal on a previous occasion, but he was permitted to participate as an intervenor, on the express understanding that his submissions would be limited to questions of jurisdiction and standard of review, but not touch on the merits. It was no answer for the Chief Adjudicator to point out that the Supreme Court of Canada and the British Columbia Court of Appeal had afforded him an audience. His standing in the pending appeals, and to make partisan arguments, has not been adjudicated and he did not advise the Supreme Court of his limited role under the IRSSA.

In connection with Canada’s RFD, the Chief Adjudicator’s counsel advised the Court that he intended to put on hold re-review cases that engaged what were called “procedural fairness” issues. He was directed that the matter be spoken to in open court, and it was made clear that for cases to be put on hold, a stay from the Court of Appeal would be required. No stay had been sought. Nevertheless, the Chief Adjudicator put a hold on the cases anyway. The Chief Adjudicator is an instrument of the IRSSA, not a stakeholder, not a party, and not an advocate for claimants or for itself. His role as an advocate is beyond his proper role, contrary to the scheme of the IRSSA and to the court orders that appointed him Chief Adjudicator. His partisan involvement has caused him to invite appellate courts to disagree with the very courts that are tasked with supervising him and to which he reports, which is unacceptable. His participation, akin to an intervention by an affected party, was not and is not required for a fully informed adjudication. The Chief Adjudicator should not be taking positions in matters arising from IAP decisions.

The goal of finality was contracted for and built into the IRSSA. Use by the Chief Adjudicator of procedural fairness as a means of re-opening IAP claims or holding them in abeyance pending the potential receipt of future admissions would compromise or defeat that important goal. Procedural fairness should not be used to avoid complying with the clear terms of the IRRSA, which preclude admission of new evidence on review or re-review and restricts reviews to the scrutiny of hearing adjudicators’ decisions for an overriding and palpable error. On re-review, the inquiry is limited to whether there was a misapplication of the IAP Model by the review adjudicator. The IAP Model requires that IAP adjudicators be impartial. It goes beyond the proper limits of the concept of procedural fairness to say that the discovery of new evidence is a sufficient basis for re-opening a hearing. Used in the context in which the Chief Adjudicator has used it in the IRSSA, “procedural fairness” is a misnomer, and one which erroneously invokes the administrative law paradigm. The IRSSA is a contract, and while the IAP Model provides an important means of redress to those who suffered abuse at IRSs, the courts and their officers must honour what was negotiated in the contract. Neither the courts nor the Chief Adjudicator should do anything that materially alters the bargain that the parties made. That bargain is set out in the IAP Model and when describing the concept of fairness in that context, the appropriate phrase is “IAP Model fairness”.

The Chief Adjudicator’s active and partisan involvement in the appeals mentioned above cause significant concern for this Court that there is a possible appearance of compromised impartiality. Partisan advocacy, or the appearance of bias, is antithetical to the role of a neutral decision-maker. A tribunal whose decision is under review is not automatically entitled to standing at common law, and a primary consideration in whether they should be permitted to address the Court is the importance of maintaining tribunal impartiality (Goodis). Another concern is that without disclosing in his reports that the Chief Adjudicator is challenging the Court’s supervision of the IAP, he has taken to challenging decisions of his Supervising Courts. The Chief Adjudicator’s actions amount to insubordination of the Courts to which he is accountable, and his conduct runs the risk of compromising his impartiality or the appearance of a compromised impartiality. These circumstances necessitated urgent corrective action on the part of this Court.

 

Fontaine v Canada (AG), 2018 ONCA 749

Relief granted. Direction issued that required the Chief Adjudicator to withdraw from his involvement in three appeals stayed and appeal allowed.

The Eastern Administrative Judge (“EAJ”) for the Indian Residential School Settlement Agreement (“IRSSA”), issued a Direction that required the Chief Adjudicator to withdraw from three appeals that he is involved in has been stayed and an appeal granted. The three-part test for a stay applies: 1) the applicant must demonstrate that there is a serious issue to be tried; 2) that it will suffer irreparable harm if the stay is not granted; 3) and that the balance of convenience favours a stay pending the disposition of the appeal (RJR-MacDonald Inc v Canada (AG), [1994] 1 SCR 311 (RJR-MacDonald)).

The Court was satisfied that the Chief Adjudicator raised arguable grounds of appeal and serious questions to be determined. It is arguable that proceeding without notice and without submissions amounts to a denial of procedural justice. The Direction takes the form of a judicial order and the reasons given to support it are in the form of a judicial judgment, therefore, the usual norms of procedural fairness should have been followed. Of particular concern is the finding in the Direction that the Chief Adjudicator is guilty of “insubordination of the Courts to which he is accountable”. This is a finding of serious misconduct made against a lawyer without giving the lawyer an opportunity to respond. The Direction also relates to proceedings in other courts. The Chief Adjudicator is a respondent or an intervenor to the appeals in those other courts and is therefore subject to the control of those courts. The Chief Adjudicator accepts that he is subject to the usual limitations imposed upon administrative tribunals who participate in proceedings that challenge their decisions as outlined in Ontario (Energy Board) v Ontario Power Generation Inc, [2015] 3 SCR 147). There is an arguable issue as to whether the EAJ erred in assuming the authority to determine the nature and scope of the submissions the Chief Adjudicator should make in other courts. It is an issue as to whether the Chief Adjudicator has exceeded the limits of participation permitted for a tribunal in proceedings that challenge the tribunal’s decision.

The Court is satisfied that if a stay is denied, the Chief Adjudicator will suffer irreparable harm from being required to withdraw his factum and participation in an appeal before the Supreme Court of Canada, scheduled to be heard the next day. The balance of convenience favours granting a stay. If a stay is refused, the Chief Adjudicator’s participation in the appeals will be terminated. On the other hand, if the Chief Adjudicator’s participation exceeds the limits of what is permitted, the courts before whom the Chief Adjudicator appears can deal with that problem and limit his participation accordingly. It is accepted that where a stay would effectively determine the matter at issue, a court may go beyond the “serious issue to be tried” standard and grant the stay if the applicant shows a strong likelihood of success (RJR-Macdonald). The Chief Adjudicator has met that standard with respect to the issue of procedural fairness. Granting the stay will not preclude this Court from considering the general issues as to the nature of the relationship between the EAJ and the Chief Adjudicator on the appeal.

 

Fontaine v Canada (AG), 2018 ONSC 5706 (“Second Direction”)

The Eastern Administrative Judge (“EAJ”) for the Indian Residential School Settlement Agreement (“IRSSA”), rescinds his “First Direction” and issues a “Second Direction” to address his concerns and issues with the Chief Adjudicator.

A “Second Direction” rescinds and replaces the EAJ’s earlier Direction (Fontaine v Canada (AG), 2018 ONSC 5197) for the IRSSA. In the First Direction, the EAJ directed that the Chief Adjudicator of the Independent Assessment Process (“IAP”) to terminate his involvement in pending litigation before various appellate courts arising from the IAP, in which he advances partisan positions, thereby compromising the integrity of the IAP. The Chief Adjudicator sought and was granted a stay by the Court of Appeal, pending appeal (Fontaine v Canada (AG), 2018 ONCA 749), largely on the ground that he had been denied due process. The EAJ viewed the stay granted by the Court of Appeal as making the appeal of the First Direction largely moot in that the Chief Adjudicator will go ahead with submissions on an appeal scheduled to be before the Supreme Court of Canada.

Therefore the EAJ rescinds the First Direction and will follow a different path that will provide for a fuller opportunity to canvass this Supervising Court’s underlying concerns and to provide the Chief Adjudicator with a full hearing with due process. The EAJ appoints in the Second Direction an amicus curiae to bring a Request for Direction (“RFD”). This RFD shall be heard and determined at a joint hearing by a panel of two Supervising Judges, to be assigned in accordance with the Court Administration Protocol appended as Schedule “A” to the Implementation Orders. The Second Direction specifies five issues for the RFD to address and lists the materials to be considered. The issues to be addressed reflect similar concerns to those that motivated the First Direction.

 

Fontaine v Canada (AG), 2018 ONCA 832

Relief granted. Stay for the Second Direction nunc pro tunc from the date it was issued. The appeal granted for the Second Direction will be heard together with the appeal from the First Direction.

The direction, now called the “First Direction” (Fontaine v Canada (AG), 2018 ONSC 5197), has been rescinded by the Eastern Administrative Judge (“EAJ”) that supervises, along with other courts, the Chief Adjudicator who is in charge of the Independent Assessment Process (“IAP”) of the multi-billion dollar class action settlement agreement, the Indian Residential Schools Settlement Agreement (“IRRSA”). In the First Direction, the Chief Adjudicator was ordered to withdrawal from three appeals he was involved in, as there were concerns and issues the EAJ had regarding the Chief Adjudicator’s duties. From the EAJ rescinding and replacing his First Direction, with a “Second Direction”, it is arguable to this Court that it was done in violation of the functus officio principle. As the Supreme Court of Canada (“SCC”) stated in (Doucet-Boudreau v Nova Scotia (Minister of Education), [2003] 3 SCR 3 (“Doucet-Boudreau”)), the purpose of this principle is “to allow finality of judgments from courts which are subject to appeal”. The SCC recognized that allowing the court appealed from to vary its orders would allow that court to “assume the function of an appellate court and deny litigants a stable basis from which to launch an appeal” (“Doucet-Boudreau”).

It was also found arguable that the Second Direction amounted to an attempt to short-circuit the appeal to this Court from the First Direction. The Second Direction declared the appeal to this Court “largely moot”, rescinded the First Direction which removes the basis for the appeal, and purports to confer jurisdiction on two extra-provincial judges to decide some of the issues raised by the appeal. In addition, the terms of the RFD that the EAJ directed the amicus curiae to bring, appears to assume, if not decide, some of the issues raised before this Court in the appeal from the First Direction. The Second Direction is a final order from which an appeal lies to this Court. If the Second Direction rescinds the First Direction, it has the effect of ending the appeal from the First Direction, as the Chief Adjudicator cannot appeal from an order that is no longer in effect. The Second Direction thus removes some of the issues raised in that appeal to another tribunal outside the jurisdiction of the Ontario courts. An order that finally determines the forum for the dispute is a final order for the purposes of appeal, even though the substantive issues remain to be determined by the court or tribunal held to have that jurisdiction (Manos Foods International Inc v Coca-Cola Ltd,180 DLR (4th) 309 (ONCA)).

The Second Direction was made without notice and a hearing, thereby in violation of the principles of procedural fairness. It is unprecedented for a judge to purport to rescind an order after it has been made, appealed and stayed, thereby effectively ending the appeal and replacing it with another process. The issue of the Chief Adjudicator’s participation on court proceedings is one that affects all jurisdictions. It is arguable that a panel of two judges from different provincial and territorial superior courts should be avoided where the issue is hotly contested, as there could be risk of disagreement or conflicting results on appeal or even appeals. Irreparable harm could flow from allowing two parallel proceedings to unfold at the same time. There is a clear risk of inconsistent results that would cause confusion from which the Chief Adjudicator and the IAP would suffer serious harm. Conflicting results would also cause harm by bringing the administration of justice into disrepute. The balance of convenience favours granting a stay as it would allow these proceedings to unfold in an orderly manner and avoid duplicative proceedings that could lead to inconsistent results. The three-part test for a stay is met (RJR-MacDonald Inc v Canada (AG), [1994] 1 SCR 311).

 

Fontaine v Canada (AG), 2018 ONCA 1023

The First Direction and the Second Direction is ordered to be set aside. Any party is open to bring a Request for Direction regarding the issues in the directions, however, it must be conducted by a different supervising judge. This process must be carried out in a procedurally fair manner and the directions are limited in scope to the form and content of the reports.

The Indian Residential Schools Settlement Agreement (“IRSSA”) was designed to give some measure of redress to victims of a dark chapter in Canadian history. Since its implementation, tens of thousands of victims have been compensated and billions of dollars have been dispersed. It is near completion and that accomplishment is attributable in no small measure to the many people who are part of the Independent Assessment Process (“IAP”), including the appellant (the Chief Adjudicator), and the Eastern Administrative Judge (“EAJ”). The IRSSA establishes the IAP, a claims adjudication process that acts as a means of providing compensation to individuals who suffered abuse at Indian Residential Schools. The Chief Adjudicator is responsible for ensuring the proper implementation of the IAP. The Oversight Committee is provided by the IAP. The power of the Oversight Committee to appoint a Chief Adjudicator has been expressly limited and made subject to court approval, however, there is no concurrent limitation to terminate the Chief Adjudicator.

The “First Direction” was issued by the EAJ on his own motion and without notice to any party, that prohibited the appellant from continuing his participation in three appeals (the “Impugned Appeals”), one before the Supreme Court of Canada (“SCC”) and two before the British Columbia Court of Appeal (“BCCA”). The EAJ found the appellant to be insubordinate and in defiance of the supervising courts. His reasons were the appellant’s overtly partisan positions, based on the content of his facta and his participation in the Impugned Appeals that failed to be described in a recent quarterly report to the IRRSA Court Monitor. Also of concern in the First Direction, is the appellant’s efforts to hold re-review adjudications in abeyance, pending the outcome of an appeal that considered issues of procedural fairness in the IAP (Fontaine v Canada (AG), 2018 ONSC 5197). The EAJ directed the appellant to withdraw from the Impugned Appeals and remove his facta from the SCC and BCCA registries. The appellant filed a Notice of Appeal against the First Direction in this Court and moved for a stay pending the hearing of the appeal, which was subsequently granted.

The appellant was owed an elevated duty of procedural fairness and natural justice because the EAJ was exercising his judicial functions (A(LL) v B(A), [1995] 4 SCR 536). The EAJ’s power to supervise must be exercised in a manner that conforms to the principles of natural justice and respects the rights of the appellant to procedural fairness. The First Direction amounted to a warning that all the orders for the Chief Adjudicator must implemented by the deadline mandated by the EAJ, otherwise the appellant could face termination from his position. But the power to terminate the Chief Adjudicator resides with the Oversight Committee, not the EAJ. It must also be remembered that the appellant occupies a significant role in the administration of a multi-billion dollar class action settlement, thereby the First Direction compromised the appellant’s professional reputation and his ability to carry out his mandate as Chief Adjudicator.

Subsequently, the EAJ issued another direction (the “Second Direction”), again on his own motion and without notice to any party. The Second Direction purported to rescind the First Direction for the express purpose of avoiding appellate review. It directed “a different path that will provide for a fuller opportunity to canvass this Supervising Court’s underlying concerns” and “provide the Chief Adjudicator with a full hearing with due process, as he submits is his due” (Fontaine v Canada (AG), 2018 ONSC 5706). The appellant filed a Notice of Appeal against the Second Direction and moved for a stay pending determination of the appeal. It was granted along with the relief that the two appeals be heard together. This Court also accepted that the Second Direction violated the law of functus officio. Once the First Direction was issued, the EAJ’s jurisdiction over the matter was exhausted. While the First Direction was under appeal, he had no authority to rescind and replace it with the Second Direction. The principle of functus officio addresses the harm at issue in these appeals, namely that a lower court must not interfere with the jurisdiction of an appellate court (Doucet-Boudreau v Nova Scotia (Minister of Education), [2003] 3 SCR 3). Courts do not have the power to amend an order except in limited circumstances that have no application in this case.

This Court should not determine the substantive issues raised in the First Direction and the Second Direction. An RFD to the supervising courts is the process mandated by the Implementation Orders for applications regarding the administration of the IRSSA. Where a hearing is required, the administrative judges determine the jurisdiction in which the hearing should be held. Where the issues will affect all jurisdictions, the hearing may be directed to any court supervising the IRSSA. There is nothing in the Court Administration Protocol of the IRRSA that permits the courts to initiate their own process. Instead, it is contemplated that it is the parties that bring RFDs to the courts. If the respondent has a concern about that conduct, there is nothing preventing it from bringing a RFD. Engaging in the RFD process would permit all parties to adduce evidence, make submissions, and to receive the direction of the court. The IRSSA, the Implementation Orders, and the Court Administration Protocol provide a detailed procedure regarding the adjudication of issues that arise in the administration of the IAP. That process must be respected. While the courts have a supervising role, it is one that must be guided by the IRSSA and the Implementation Orders. The supervising courts are not free to graft on their own processes to the mandated RFD process.

 

 

 

 

 

 

Brown v Canada (AG), 2018 ONSC 3429

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Wiyasiwewin Mikiwahp Native Law Centre Case Watch

The Settlement Agreement, other than the legal fees provision, is approved. The $75 million legal fees provision is excessive, unreasonable and is not approved. Class counsel in Brown have agreed to de-link the legal fees provision from the rest of the Settlement Agreement. The Court should be advised when a revised section 11.01 has been agreed to by the parties.

(This is the third of three consecutive Wiyasiwewin Mikiwahp Native Law Centre Case Watch Blog posts regarding the Sixties Scoop Class Action judgements.)

The Sixties Scoop has been nationally acknowledged as a “dark and painful chapter in Canada’s history”, prompting twenty-three actions across the country. The Ontario action, Brown v Canada, was the most advanced. After nine years of litigation, it was Brown that established Canada’s liability in tort to the Sixties Scoop survivors in Ontario. Canada agreed to settle Brown but only if the other actions were included in one nation-wide settlement.

Justice Michel Shore of the Federal Court mediated the national settlement. The parties reached an agreement in principle on August 30, 2017. The national settlement agreement (“the Settlement Agreement”) was formally executed on November 30, 2017. As part of the national settlement, the other actions were consolidated into an omnibus Federal Court action, referred to as the Riddle action. On May 11, 2018 Justice Shore approved the Settlement Agreement for the purposes of the Riddle action as he was satisfied that it was fair, reasonable and in the best interests of the class members. The Settlement Agreement is before this Court for a similar approval in the context of the Brown action. It is clear from the language in the Agreement that the approval of both courts is required and if any part of the Settlement Agreement is declined, then the Agreement will not take effect and Justice Shore’s approval order in Riddle would be rendered null and void.

This Court had two concerns, however, after reviewing the Settlement Agreement. The first concern was the reasonableness of the $25,000 to $50,000 payment as damages for the loss of one’s Indigenous cultural identity given the harm that was sustained by the class members. The Court was satisfied after reviewing all the evidence and potential pitfalls given the risks of further litigation, that the payment, although modest for the loss of one’s Indigenous cultural identity, was ultimately fair, reasonable and should be approved. The second concern involved the $75 million payment to class counsel for legal fees. The Court viewed the $75 million for legal fees as excessive, unreasonable and was not approved. The focus is the global payment of $75 million in legal fees and not the internal divisions agreed to by class counsel.

The two most important factors in determining the reasonableness of legal fees are risk incurred and results achieved. It is the risk incurred that “most justifies” a premium in class proceedings and is primarily the risk of non-payment. In a case where a class action has been settled with a minimal investment of time or effort, the risk of non-payment causing “personal consequences” to class counsel is relatively insignificant. In a case where the settlement has been achieved after many years of effort with an enormous investment of time and money, the risk of non-payment causing “personal consequences” to class counsel can be significant. Windfalls should be avoided because class action litigation is not a lottery and the CPA was not enacted to make lawyers wealthy.

The percentage of the fund approach that bears no relation to the significance of the risk incurred should not be used in a mega-fund settlement. In Cannon, the Court embraced the percentage of the fund approach because almost all of the settlements were under $40 million. The Cannon percentage of the fund approach remains viable but should be limited to settlement amounts that are common-place, that is, under $50 million. Cannon should never be used in the mega-fund case where the settlement or judgment is more than $100 million. If there is evidence before the Court that the requested legal fees are excessive, the class action judge should examine the risk incurred to help decide whether the amount being requested by class counsel is indeed fair and reasonable.

The risk incurred by class counsel in Brown was, in a word, enormous. Bluntly put, it was as close a case of class counsel “betting the firm” as had been seen. The nation-wide settlement with Canada for some 23 actions, was fuelled in large part by what was achieved in the Brown action. It was therefore beyond dispute for the Court that class counsel in Brown deserve a significant premium in the calculation of their legal fees. Compared to Brown, the risks incurred by class counsel in Riddle are at the opposite end of the spectrum and were not significant. The evidence strongly suggested opportunistic filings and that the risks incurred by the Riddle class counsel in their respective actions did not justify a Cannon-type percentage of the fund approach.

Because the $75 million legal fees provision is not approved, the rest of the Settlement Agreement cannot take effect unless the legal fees provision is de-linked from the other settlement provisions that have been approved. Class counsel in Brown have agreed to de-link the $75 million fees provision from the rest of the Settlement Agreement in the interests of their class members. Class counsel in Riddle have not yet agreed to any such de-linking. The Settlement Agreement has gone back to the negotiating table with the focus being the $75 million legal fees provision, at least for class counsel in Brown. The Court commented that it would be beyond tragic if the Sixties Scoop Settlement Agreement was derailed or delayed because of an unseemly squabble among class counsel over legal fees.

Riddle v Her Majesty the Queen, 2018 FC 641 [Sixties Scoop Class Action]

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Wiyasiwewin Mikiwahp Native Law Centre

This action is certified as a class proceeding. The Settlement Agreement has been approved with the modification that there is dissemination of its information to every part of Canada to ensure that every eligible person receives the payment allotted for such.

(This is the second of three consecutive Wiyasiwewin Mikiwahp Native Law Centre Case Watch Blog posts regarding the Sixties Scoop Class Action judgements.)

The precedents in Brown v Canada are historical and exemplary in the understanding of cultural identity as essential to the human personality. By an order dated January 4, 2018, Riddle, White and Charlie Actions were consolidated. The Parties agree that the Settlement per approval in Brown v Canada in the Ontario Superior Court of Justice and in the action constituted in the Federal Court be consistent with the terms of the Settlement Agreement.

Twenty-three class proceedings at different stages were at one time across Canada including Ontario, Manitoba, Saskatchewan, Albert and British Columbia in respect of the Sixties Scoop. These actions sought “damages for the harm that was caused… by the alleged breaches of fiduciary and common law duty on the part of the Federal Crown” (Brown v Canada (AG), 2013 ONSC 5637). On February 1, 2017, the Federal Government announced its intention to initiate mediation in regards to the Sixties Scoop litigation across the country. During the mediation, a wide, all-encompassing range of comprehensive topics were discussed and negotiated.

The essential terms of the Settlement are as follows: (1) a Foundation with a mission to enable change and reconciliation as well as access to healing, wellness, commemoration and education; (2) Eligible Class Members; (3) The Compensation Scheme: Canada will not be required to pay more than $750,000,000.00. Depending on the number of Approved Claimants, each Eligible Class Member who submits a claim shall receive a compensation of a maximum $50,000; (4) The Claims Process: is intended to be simple, paper-based, cost effective, user-friendly and to minimize the burden on the applicant by a one page form; (5) Releases: The class members agree to release Canada from any and all claims that have been pleaded or could have been pleaded with respect to their placement in foster care, Crown wardship or permanent wardship, and/or adoption; (6) Opt-outs: Should 2,000 class members opt out, Canada, in its sole discretion, may decide not to proceed with the Settlement Agreement and shall have no further obligations in this regard; (7) Legal Fees: the payment of Class Counsel from a separate Fund. Class counsel further agrees to perform any additional work required on behalf of class members at no additional charge; (8) Settlement Approval: The Parties agree that the Settlement per approval in Brown v Canada in the Ontario Superior Court of Justice and in the action constituted in the Federal Court be consistent with the terms of the Settlement Agreement.

There was some objection to the quantum of legal fees. The Court agreed that the fees sought are fair and reasonable, mainly because class counsel will remain available to the claimants following the approval of the Settlement and because the requested fees are less than 10% of the overall global payment. This litigation is “historically unique” and was “inherently fraught with risk”. The Court takes into account that the claims in this class action refer to a loss of cultural identity. These cases undoubtedly pose a significant litigation risk to be assumed by Class counsel (Manuge v Canada, 2014 FC 341). The legal fees are intended to “encourage counsel to take on difficult and risky class action litigation” (Abdulrahim v Air France, 2011 ONSC 512). The parties’ commitment in the inauguration of the Settlement, is one of the reasons the result achieved was successful and were able to avoid delays and expensive costs associated with individual hearings by which to compensate class members.

It was undeniable that “bringing closure is critical” for the survivors of the Sixties Scoop. Without a settlement agreement, the risks include: (a) national certification order may not be granted; (b) a fiduciary duty may be found not to be owed, as in Ontario; (c) liability might not be established; (d) statutory limitation periods could bar many or all of the class’ claims; (e) an aggregate award of damages could be denied by the court forcing class members through lengthy and protracted individual assessment; (f) proven damages could be similar to or far less than the settlement amounts; (g) ordering reconciliation, commemorative or healing initiatives, of the nature the Foundation is tasked with, would have been outside the jurisdiction or purview of any court to order. The Court viewed the Settlement Agreement as fair, reasonable and in the best interests of those affected by it.

Brown v. Canada (AG), 2017 ONSC 251 [Sixties Scoop Class Action]

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Wiyasiwewin Mikiwahp Native Law Centre Case Watch

Motion granted for summary judgment of the certified common issue of the Sixties Scoop class action. Liability of the federal government was found in favour of the class members.

(This is the first of three consecutive Wiyasiwewin Mikiwahp Native Law Centre Case Watch Blog posts regarding the Sixties Scoop Class Action judgements.)

The Court, and both parties, agree that the common issue should be summarily decided. Brown v. Canada (AG), 2010 ONSC 3095 was certified as a class proceeding. The certified common issue, which focused on the liability of Canada, was answered in favour of the class members. The class action has proceeded to the damages stage.

The Sixties Scoop happened and great harm was done. There is no dispute about the fact that thousands of Aboriginal children living on reserves in Ontario were apprehended and removed from their families by provincial child welfare authorities over the course of the class period and were placed in non-Aboriginal foster homes or adopted by non-Aboriginal parents. It was Patrick Johnson, the author of a 1983 research study on “Native Children and the Child Welfare System” that coined the name “Sixties Scoop.” He took this phrase from the words of a British Columbia child-protection worker who noted that provincial social workers “would literally scoop children from reserves on the slightest pretext.” There is uncontroverted evidence of the impact on the removed Aboriginal children. The loss of their Aboriginal identity left the children fundamentally disoriented, with a reduced ability to lead healthy and fulfilling lives. The issue before the Court was whether Canada can be found liable in law for the class members’ loss of Aboriginal identity after they were placed in non-Aboriginal foster and adoptive homes.

Canada entered into the Canada-Ontario Welfare Services Agreement (“the 1965 Agreement”) in December 1, 1965 to December 31, 1984 (19 years), and is at the core of the common issue. The focus of the common issue is the action or inaction of Canada (not Ontario) and only on the time-period after the Aboriginal children had been placed in non-Aboriginal foster or adoptive homes. Therefore, the common issue asks whether Canada had and breached any fiduciary or common law duties to take reasonable steps in the post-placement period to prevent the class members’ loss of Aboriginal identity.

The class definition includes the estimated 16,000 Aboriginal children who were removed from reserves in Ontario and placed in non-Aboriginal foster homes or adoptive homes. The stated goal of the 1965 Agreement was to “make available to the Indians in the province the full range of provincial welfare programs” and also reflected Canada’s concern that the extension of the provincial laws would respect and accommodate the special culture and traditions of the First Nations peoples living on the reserves, including their children. Ontario’s undertaking to extend the provincial welfare programs as set out in section 2(1) was made “subject to (2).” Sub-section 2(2) of the Agreement said “[n]o provincial welfare program shall be extended to any Indian Band in the Province unless that Band has been consulted by Canada or jointly by Canada and by Ontario and has signified its concurrence.” This section was intended to include explanations, discussions and accommodations. It was meant to be a genuinely meaningful provision.

No Indian Bands were ever consulted before provincial child welfare services were extended to the reserves. The Court found that by failing to consult the Indian Bands, Canada breached s 2(2) of the 1965 Agreement. Nothing in s 2(2) explicitly obliged Canada to actually undertake the consultations referred, however, the undertaking to do so can be implied from the language and context of the provision. A contractual term can be implied if it is a contractual term that must have been intended by the parties and is necessary or obvious in light of the particular circumstances of the agreement. If Canada had honoured its obligation to consult the Indian Bands under s 2(2) of the 1965 Agreement, the information about the child’s Aboriginal identity and culture and the available federal benefits would have been provided years sooner. Canada failed to take reasonable steps to prevent the loss of Aboriginal identity in the post-placement period by failing, at a minimum, to provide to both foster and adoptive parents the kind of information that was finally provided in 1980 and thereafter.

The Court found on the applicable law that Canada’s liability cannot be established under fiduciary law but can be established under the common law. In the Court’s view, s 2(2) and the obligation to consult created a common law duty of care and provided a basis in tort for the class members’ claims. The common law duty of care arose out of the fact that the 1965 Agreement is analogous to a third-party beneficiary agreement. Canada undertook the obligation to consult in order to benefit Indian Bands (and by extension, Indians living on the reserves, including children). The Indian Bands are not parties to the Agreement, but a tort duty can be imposed on Canada as a contracting party in these circumstances.