What is your cultural heritage worth in dollars?
The “Sixties Scoop” class actions seek to recover damages from Canada on behalf of approximately 20,000 First Nations children who were “scooped” from their biological families and communities for placement in non-indigenous foster or adoptive homes between 1951 and 1991. The government-sanctioned trafficking of these children resulted in the reprogramming of their histories, cultural identities, and their languages, and robbed them of their statuses under the Indian Act.
A total of 23 provincial Sixties Scoop class actions were launched, both in the Federal Court and provincial courts, across the country.
Eight years after Marcia Brown commenced the Ontario Sixties Scoop class action, Justice Belobaba found that the federal government breached its duty of care to the class members by failing to prevent on-reserve Indian children from losing their aboriginal identities in Brown v. Canada, 2017 ONSC 251 (“Brown”).
His finding of liability was only applicable in Ontario, yet it was the catalyst for settlement discussions and later mediations that would prospectively settle some the 23 class actions (but not all of them). The Federal Court appointed Justice Michel Shore to preside over these settlement discussions.
On October 6, 2017, the parties agreed to a settlement in principle of the Sixties Scoop class actions involved, in which $750 million would be awarded to the class members, $50 million would be deposited into a healing foundation established by the federal government to enable change and reconciliation; and $75 million would go towards lawyers’ fees. Not all Sixties Scoop class actions would be covered by this settlement.
A motion to approve the settlement in the Ontario Superior Court of Justice is scheduled to be heard on May 29 & 30, 2018. Spark LLP will be live tweeting the hearing using the hashtag #60sScoopON.
How Do Class Action Settlements Work?
Class actions are complicated and unlike any other lawsuit. The representative plaintiff(s) of the class must seek judicial approval for any settlement of a class action. The test for settlement approval is whether the settlement is fair and reasonable, a good compromise between the parties, and in the best interests of the class as a whole.
Before the settlement approval hearing, class counsel must notify all class members of the settlement in writing, hold consultation meetings in person to discuss the terms of settlement with the class members, and provide them with instructions for how they can object if they are of the opinion that the settlement is not fair or reasonable. Objections may be made in writing in advance of the hearing or orally at the hearing.
This settlement has been controversial. Class members are upset with the settlement for a variety of reasons, including: a) compensation per class member, estimated between $25,000 and $50,000 depending on the number of class members who make claims, is not enough to account for the loss of cultural identity; b) the lawyers did not hold enough consultations with the class members prior to crafting the settlement; c) many class members had no knowledge of the settlement; d) survivors deserve an adjudication process for compensation similar to what the residential school survivors received; and e) Justice Michel Shore, who presided over the settlement approval hearings at the Federal Court in Saskatoon on May 10, 2018, gave each class member who objected to the settlement only three minutes each to speak in court. Some class action groups and representative plaintiffs were completely left out of the discussions.
Does the name of the judge sound familiar? It should, considering Justice Shore was involved with the creation of the proposed settlement that he then formally approved in court. And Justice Shore will also sit on the board of the healing foundation to be established by the federal government if the settlement is approved. Justice Shore’s multiple roles are potentially problematic. Jasminka Kalajdzic, a law professor at the University of Windsor and a leading expert on class actions in Canada, told CBC that “the judge’s role is to be dispassionate – not to be an advocate or cheerleader for the class-action settlement.”
Does Federal Court Rule 391 Save a “Cheerleader”?
Should the fact that Justice Shore played various roles in the settlement of some Sixties Scoop class actions matter if it is permitted by the rules of the court? Federal Court Rule 391 allows a judge to oversee multiple elements of a case if he has the consent of all parties involved. Each party involved consented to Justice Shore hearing the settlement approval in Federal Court.
Despite Federal Court Rule 391, legal critics are speculating whether Justice Shore’s involvement is appropriate especially given that he made explicit comments in support of the settlement on May 10th before formally approving it. Kalajdzic was also quoted by CBC saying that Rule 391 should only be used in exceptional circumstances, and that was not the case here.
Although critics have been reticent to use the phrase “reasonable apprehension of bias” in the media, consider whether Justice Shore should have been disqualified from hearing the settlement approval motion in Federal Court. The test for disqualifying a judge is: “What would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude? Would he think that it is more likely than not that the decision-market, whether consciously or unconsciously, would not decide fairly?”
Although the settlement has already been approved by the Federal Court, it must be approved by both the Federal Court and the Ontario Superior Court in order it to take effect. If the settlement is not approved by the Ontario Superior Court, the issue regarding Justice Shore’s questionable involvement in the Federal Court settlement approval becomes irrelevant.
The Ontario Settlement Approval Hearing
Samantha was the first employee lawyer to join Spark LLP, joining the firm in early 2017. She assisted with the firm’s litigation matters for two years before deciding to leave and join a mid-sized Bay Street firm.