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Class action may reach resolution in shorter timeline

Focus on Aboriginal Law
|Written By Marg. Bruineman
Class action may reach resolution in shorter timeline
Michel Nolet says the purpose of tort law is to recognize when people are harmed and ought to be compensated, as well as to hold wrongdoers accountable for their actions.

A $1.8-billion class action application launched in January accuses the federal government of segregating portions of Canada’s Indigenous population in “Indian hospitals” across the country between 1945 and 1981, where people were allegedly abused, confined and mistreated.

With a new class action developing, lawyers say they expect the hospitals case may reach resolution in a shorter timeline than previous cases involving Indigenous Canadians. 

“It’s a case . . . I think is of great importance, not only that it be brought forward for the sake of the class but also for the sake of Canada becoming aware of this chapter in history,” says Jonathan Ptak, a partner at Koskie Minsky LLP in Toronto, who is acting for the plaintiffs. 

The hospitals class action follows a settlement with survivors of the Sixties Scoop, which was announced in October and is worth about $800 million.

That case relates to an estimated 20,000 First Nations and Inuit children who were removed from their homes, losing their cultural identities.

Earlier, the Indian Residential Schools Settlement Agreement brought to an end a class action involving about 86,000 Indigenous children enrolled in the Canadian residential schools system. 

It went into effect in 2007 and was the largest class action settlement in Canadian history to that point.

In this latest case, the representative plaintiff, Anne Cecile Hardy, accuses the Attorney General of Canada of establishing 29 “Indian hospitals” across the country, including segregating segments of the country’s Indigenous population and keeping them in substandard facilities where they were severely mistreated. 

The statement of claim, which was filed with the Federal Court of Canada in January, alleges that the Indigenous patients were separated from their families, friends and communities and taken to “dilapidated” facilities that were converted into hospitals. 

The claim alleges that, at the “overcrowded, poorly staffed and unsanitary facilities,” they were physically and sexually assaulted, restrained in their beds and force-fed their vomit. The proposed class action accuses the government of being negligent and breaching its fiduciary duties owed to Indigenous people, resulting in enormous harm. The court must first certify the claim as a class action before it can proceed.

In an emailed statement, James Fitz-Morris, a spokesman for Indigenous and Northern Affairs Canada, said Canada is committed to righting historical wrongs committed against Indigenous people and that the federal government is working to resolve the matter out of court, as it did with the Sixties Scoop survivors’ class action.

Ottawa-based Michel Nolet, an associate with Nelligan O’Brien Payne LLP, a member of its Indigenous Law practice group and a Montreal-area Kahnawake Mohawk, says it’s quite possible that this latest case will follow a path to resolution, as have the previous class actions.  

Given the federal government’s stated desire to resolve the case out of court and its experience with the previous cases, he believes it may be resolved more quickly.

“There’s an opportunity here to avoid going all the way through with a class action and settling it,” says Nolet. 

“I definitely think the governments are more open to engage in settlement.”

Nolet says that, in this case, he does not anticipate the case proceeding for “years and years and years.” 

In the Indian Residential Schools Settlement Agreement, the government acknowledged the abuse suffered by formal residential schools students. Carolyn Bennett, minister of Crown-Indigenous Relations and Northern Affairs, recently referred to it as “tragic and unacceptable.”

The residential schools case signifies a change in government approach and may have set the tone for future class actions, including the Sixties Scoop class action, Nolet says. 

He says the purpose of tort law is to recognize when people are harmed and ought to be compensated, as well as to hold wrongdoers accountable for their actions.

Without the push of class actions, there would be little incentive for the government to negotiate, says Tom McMahon, who served as general legal counsel for the Truth and Reconciliation Commission and now spends his time in retirement writing research papers related to residential schools at his home in Winnipeg.

The successes of the previous class actions involving Indigenous people provide more incentive for the government to negotiate successive cases, McMahon says. 

Society’s delay in reconciliation might well be reflected in tort law, he says.

“The fact that we have class action, the fact that Indigenous people are capable of winning class action matters in court, the fact that the government is willing to negotiate settlement — these are all tremendously positive things for our society,” he says. 

McMahon credits the legal system for ushering in so many changes related to Indigenous people. 

More than 4,000 court cases related to residential schools, including the class actions, were filed representing thousands of plaintiffs. That has resulted in $5 billion in payments to residential schools survivors, he says.

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