Personal lack of connection to affected community ameliorated by counsel’s efforts and experience

Civil Practice and Procedure - Class and Representative Proceedings - Class proceedings legislation

In “Sixties’ Scoop”, children of Status Indians, Metis and Non-Status Indians (NSI) were taken from their parents and placed in non-Indigenous foster homes or put up for adoptions, which eventually led to class proceeding and settlement involving affected Status Indians. Several class actions were commenced on behalf of affected Metis and NSI, including by representative plaintiff D and by three other representative plaintiffs who agreed to consolidate their actions and retain consortium of their counsel. D brought motion for carriage of Metis and NSI class action; plaintiffs in to-be-consolidated actions brought motion for carriage . D’s motion granted; plaintiffs’ motion dismissed. Best interests of class were paramount and required flexible multi-factor analysis that favoured D’s action. D reflected type of circumstances and damage that was common to both Metis and NSI group at more severe end of damage spectrum. D’s personal lack of connection to affected Metis community was ameliorated by counsel’s efforts and practical experience with both communities. Both actions were at very early stage in litigation process so gap in preparation was not significant and would not materially impact on its conduct. There was little substantive difference between parties’ class definition and scope of causes of action. Consolidated action’s three claims were filed before D’s action, but gap in timing had not materially affected progress of actions. D’s action was more inclusive as it always included NSI class members while consolidated action had added them. Factor of quality of counsel slightly favoured D’s counsel due to its expertise as to rights flowing to Metis and NSI . Competing counsel both had extensive experience and consortium did not establish it was materially better able to act for class members across country because of geographic spread of its offices. Only D’s counsel was prepared to grant Crown’s request for undertaking not to advance similar proceedings in other courts regardless of carriage decision, but consortium’s inadequately justified refusal to provide undertaking was not determinative in vigorous case management context.

Laliberte v. Canada (Attorney General) (2019), 2019 CarswellNat 2291, 2019 CarswellNat 3497, 2019 FC 766, 2019 CF 766, Michael L. Phelan J. (F.C.).

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