Pre- and Post-Settlement Protection of the Indian Residential Schools Class. Authors: Catherine A. Coughlan and Brent L. Thompson

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1 Pre- and Post-Settlement Protection of the Indian Residential Schools Class Authors: Catherine A. Coughlan and Brent L. Thompson Note: The views expressed in this article do not represent the views of the Government of Canada. Rather, those views are held only by the authors. Abstract: Using the class actions paradigm, the multibillion dollar settlement of the Indian Residential Schools legacy has involved superior courts across Canada in unprecedented fashion. The protection of those affected by Indian Residential Schools has been a goal held in common by courts and parties alike. Indeed, protective features are woven into the Indian Residential Schools Settlement Agreement itself and have regularly surfaced in the resulting jurisprudence. The present article is intended to provide a descriptive overview of the Indian Residential Schools Settlement Agreement and the ways in which it has been designed and interpreted to protect vulnerable class members. Particular attention is given to the text itself, administrative additions by the courts, and post-settlement jurisprudence, particularly that which relates to counsel conduct issues and the role of the supervising courts. A. Introduction The protection of class members interests has been a powerful and recurring theme in the administration of the Indian Residential Schools class proceedings and settlement. Arising as an objective of class proceedings legislation across Canada, the protection of the class forms a component of judicial inquiry at various stages of class litigation and over time has manifested as a theme of judicial decision-making. In the Indian Residential Schools class proceedings, the protection of the particularly vulnerable class was crucial to the terms reached by the settling parties, the approvals granted by the courts, and the courts continued oversight of the terms of settlement. At the outset, the courts asserted strong views as to the administration of the Indian Residential Schools Settlement Agreement, primarily due to their concerns for the class. Since the ink has dried on the Settlement Agreement and the related court orders, the courts have again been called upon to oversee administrative matters with a view to the interests of the class. One challenge faced by the courts in their protection of class members interests has been the potential for overlap between the role of the courts and the role of plaintiff counsel. A critical tension emerges from this overlap: as the courts take on a protective role vis-à-vis class members, they may find their views to be at odds with those of legal counsel retained by class members, representative plaintiffs, and others.

2 However, the foresight of the courts upon approval of the Settlement Agreement has facilitated their ability to address certain post-settlement administrative matters effectively. Since the courts approval, several circumstances have arisen where the conduct of legal counsel has threatened to undermine class members best interests and which in any event has called out for remedial action. The unique experience of the Indian Residential Schools Settlement Agreement has demonstrated that, under the auspices of protecting the best interests of the class, and as long as the terms of settlement permit, supervising courts may properly seize themselves with matters of counsel conduct in a way that approaches professional regulation. Using the context of the Indian Residential Schools Settlement Agreement, this article traces the general objective of protecting class members through to the expansion of the courts traditional jurisdiction on questions of counsel conduct. B. The Protection of Class Members in Class Proceedings The protection of class interests is a crucial part of Canadian class proceedings, being a frequent factor in the supervisory courts discretion and even a component of judicial obligations. In some circumstances, including the Indian Residential Schools litigation, diverging views on the class interests are a potential source of dispute. i. Sources and Rationale Across the country, provincial legislative and regulatory authorities for class proceedings make reference or allusion to the protection of class members and their interests. 1 Indeed, a protective goal can be said to infuse class proceedings at large. 2 By being mindful of the interests of the class at large during relevant steps of a class proceeding, Canadian courts take it upon themselves to ensure that the overall proceeding does not veer towards serving the interests of a few representative plaintiffs or of their counsel. The inherent risk of class proceedings is that the interests of the class may become overwhelmed by the interests of class representatives, simply for the sake of efficiency. The protection of class members is a veritable check on the dynamics of class proceedings, which work precisely because they rely on the few to amalgamate and represent the interests of the many. 1 See, for example: In Saskatchewan, Class Proceedings Act, SA 2003, c C-16.5 at ss 16(1) and 22(1); In British Columbia, Class Proceedings Act, RSBC 1996, c 50 at ss 15(1) and 21(1); and In Nova Scotia, Class Proceedings Act, SNS 2007, c 28 at 18(1) and 24(1). 2 Not to be overstated, the goal is one of many that manifests throughout the duration of a class proceeding. Other goals may include access to justice, judicial economy, the administration of justice, and behaviour modification, as noted by Strathy CJO in Mancinelli v. Barrick Gold Corporation, 2016 ONCA

3 ii. In Practice In his 1998 decision in Mangan v Inco Ltd, the Honourable Mr. Justice Poupore of the Ontario Superior Court of Justice observed that a class proceeding itself may cause the interests of the representatives to diverge from those of the class: Class actions are very powerful devices that multiply the stakes of ordinary litigation manyfold. Consequently, the parties to a class action and counsel for the class are driven by very strong incentives which do not necessarily coincide with the interests of absent class members or tend to promote fairness to the other side. 3 The protection of class members interests may manifest at the discretion of the court. The Honourable Mr. Justice Horkins of the Ontario Superior Court of Justice considered the ambit of his discretion under Ontario law in his 2011 decision in Durling v Sunrise Propane Energy Group: [57] Section 12 of the CPA provides the court with broad discretion. As noted in Bodnar v. Cash Store Inc BCCA 384 (CanLII) at para. 39, "[t]he objectives of that broad discretion lie in the court's obligation to protect the interests of absent class members, and the potential complexities of managing class actions. In Fantl v. Transamerica Life Canada, 2009 ONCA 377 (CanLII) at para. 39, Winkler C.J.O. affirmed that [t]he existence of the absent class members, among other factors, is the reason that the court's supervisory jurisdiction is engaged from the inception of an intended class proceeding. It continues throughout the "stages" of the proceeding until a final disposition, including the implementation of the administration of a settlement or, where applicable, a resolution of all individual issues. 4 During the early engagement of the court s administrative jurisdiction, it is possible to imagine many circumstances where opposing viewpoints between judicial authorities and purported representatives or their counsel may manifest. For example, where the carriage of a class proceeding is disputed, the decision must take into account the best interests of all putative class members, 5 inter alia, as recently confirmed by the Court of Appeal for Ontario. On such a carriage motion, the very choice before the presiding judge depends on which counsel has presented the best option for moving forward to an effective adjudication. The decision may boil down to the judge s views on the respective issues and theories advanced by each counsel. 6 It may also hinge on such matters as the class counsel s proposed fee arrangement, described as a factor that vitally affects the interests of the class. 7 3 Mangan v. Inco Ltd., 1998 CanLII (ON SC). 4 Durling v. Sunrise Propane Energy Group Inc., 2011 ONSC 7506, Horkins J at para Mancinelli v. Barrick Gold Corporation, 2016 ONCA 571 at para Ibid at para Ibid at para

4 Even as a court considers the approval of a settlement agreement, the availability of discretionary powers to protect absent class members may loom large. Presumably, at such a stage, the various Plaintiffs and Defendants will be ad idem as to the propriety of their joint proposal. However, as noted by author Catherine Piché, 8 the court may take umbrage with the proposed agreement and may even be exposed to some discomfort during approval hearings due to the what-ifs of unspecified class interests. 9 The protection of class interests has meaningfully impacted the Indian Residential Schools class proceedings and the settlement thereof. In that case, a proactive judiciary carefully considering the interests of class members envisioned the possible difficulties of a multi-year settlement and ensured that protective structures would be put in place to mitigate against failures and abuses. C. Background: The Indian Residential Schools Legacy and Early Litigation For the great majority of its 150 year history, Canada supported an Indian Residential Schools system whose profound legacy continues to be the subject of legal action today. The historic wrongs of that system affected a considerable segment of Canada s Indigenous population throughout the 19th and 20th centuries. 10 From a civil litigation perspective, the legacy of the system was the subject of various actions in provinces across Canada. The complexities of the litigation and its background warrants a brief overview of the issues at play in the legacy of Indian Residential Schools and the early legal responses thereto. i. The Issues & Early Legal Responses The Supreme Court of Canada has recently encapsulated the ambit of the Indian Residential Schools legacy as follows: [1] From the 1860s to the 1990s, more than 150,000 First Nations, Inuit, and Métis children were required to attend Indian Residential Schools operated by religious organizations and funded by the Government of Canada. As Canada has acknowledged, this system was intended to remove and isolate children from the influence of their homes, families, traditions and culture (citation removed). Thousands of these children were abused physically, emotionally, and sexually while at residential schools Catherine Piché, Fairness in Class Action Settlements (Toronto: Thomson Reuters Canada Ltd, 2011). 9 For example, the Indian Residential Schools Settlement Agreement was approved subject to various deficiencies noted by the courts (and, in particular, Winkler CJO.) The history of that Settlement Agreement is set out in further detail below. 10 Prime Minister Harper s Statement of Apology to former students of Indian Residential Schools, dated June 11, 2008: < 11 Canada (Attorney General) v. Fontaine, 2017 SCC 47 at para

5 The very complex administrative and operational workings of the so-called Indian Residential Schools system began to be dismantled beginning in the 1970s and was eventually abandoned by As early as 1988, the Federal Government had been served with claims alleging abuse at Indian Residential Schools. 13 Within the coming years, Canada s social conscience rapidly shifted. More allegations came to light involving widespread abuse, various forms of deprivation, loss of language and culture, and intergenerational harms, all of which were attributed to Indian Residential Schools. Several civil claims would become dozens, and dozens would become hundreds. By 1996, as the Indian Residential Schools system reached its end and the Royal Commission on Aboriginal People s released its Report touching on the issue, approximately 200 civil actions had already been filed by former residents of Indian Residential Schools. 14 As it entered the new millennium, the Canadian judicial system was confronted with the daunting task of addressing the historic wrongs of the Indian Residential Schools system via thousands of civil actions. 15 Some of those civil actions were resolved as tests cases. One claim in British Columbia 16 and another in Saskatchewan 17 reached the Supreme Court of Canada. Other cases were resolved by settlement initiatives. Beginning in 1999, Canada initiated Alternative Dispute Resolution pilot projects for certain claimant groups. 18 In 2004, 19 Canada opened an Alternative Dispute Resolution Process which attracted approximately 5,000 claims for sexual and physical abuse, as well as other wrongful acts. 20 Nevertheless, the sheer number and complexity of ongoing and emerging claims had the potential to overwhelm the judicial resources of the superior courts. With a notable tension between the ideals of efficiency and access to justice, courts, litigants, and taxpayers alike urgently required an alternative to ordinary litigation. 12 The details of the Indian Residential Schools system in Canada are analysed at considerable length in The Truth and Reconciliation Commission of Canada, Honouring the truth, reconciling for the future: summary of the final report (Ottawa: The Commission, 2015), online: < ( TRC Report ). 13 Affidavit of David Russell, sworn on July 25, 2006 ( Russell Affidavit ) at para. 8. Joint Motion Record (Certification, Settlement Approval and Approval of Legal Fees) ( Joint Motion Record ) at vol. 4, tab 8, p , online: < 14 See, for example, Blackwater v. Plint, 2005 SCC 58 ( Blackwater ). Also note Northwest v Canada, 2006 ABQB 902 at para. 3. Note as well that several criminal trials had touched on events occurring at Indian Residential Schools across the country, and various other criminal proceedings were brought in the years to come. 15 See, for example, Russell affidavit, supra note 13 at para. 43 which estimated 10,538 civil plaintiffs has been engaged in litigation prior to the time the Indian Residential Schools Settlement Agreement was first approved by the courts in Joint Motion Record at vol. 4, tab 8, p Blackwater, supra note 14. See also Russell Affidavit, ibid at paras Joint Motion Record, vol. 4, tab 8, pp H.L. v. Canada (Attorney General), 2005 SCC Russell Affidavit, supra note 13 at para. 22. Joint Motion Record at vol. 4, tab 8, p Ibid at para. 40. Joint Motion Record at vol. 4, tab 8, p Northwest v. Canada (Attorney General), 2006 ABQB 902 ( Northwest ) at para

6 ii. The Class Litigation Alternative One option that emerged as an alternative to individual and multi-plaintiff litigation was the class proceeding. The scope and complexity of the issues at hand in Indian Residential Schools litigation were compatible with the underlying goals and rationales of class actions, which include both efficiency and access to justice, as described in the dissenting reasons for judgment by LeBel and Deschamps JJ in Seidel v. TELUS Communications Inc., 2011 SCC 15 (CanLII). 21 Some earlier Indian Residential Schools litigation in fact included eleven class actions launched in provincial superior courts throughout Canada. 22 At least one such class action, known as the Cloud Class Action and involving the Mohawk Institute Residential School in Ontario, was in fact certified on appeal in When leave to the Supreme Court of Canada was denied in May 2005, 24 the next step for the Cloud Class Action would be trial. The approach had a patchwork characteristic. Claims like the Cloud Class Action were narrowly focused on single institutions. Claims that were not school-specific ran the risk of overlapping. Without coordination, a multiplicity of class proceedings would create the risk of different adjudications and outcomes on a province-by-province basis. Inconsistencies from province to province would surely be antithetical to the national scope of the Indian Residential Schools system and its legacy, and would form an insufficient response to the potentially common issues raised by many across the country. Moreover, the residents of certain jurisdictions faced disparate class action regimes, as the option was not uniformly available during this time period. In Alberta, for example, there was no class proceeding legislation prior to April 1, In the Northwest Territories and Nunavut, the absence of class 21 Seidel v. TELUS Communications Inc., 2011 SCC 15 (CanLII) at para. 52 : In an effort to promote and improve access to justice, and to make more efficient use of scarce judicial resources, legislatures have adopted new procedural vehicles designed to modify or provide alternatives to the traditional court action. These alternatives include class actions and arbitration, both of which have been endorsed by this Court. 22 These included the Cloud and Baxter class actions in Ontario, the Straightnose class action for Saskatachewan residents, and the Dieter and Pauchay class actions for Canadian residents at large. Affidavit of Larry Philip Fontaine, sworn on July 28, 2006 ( Fontaine Affidavit ) at para. 54. Joint Motion Record, vol. 3, tab 6, p , online: at p 01035; see also TRC Report, supra note 12 at p Cloud v. Canada (Attorney General), 2004 CanLII (ON CA), reversing the initial decision of the motion judge and the majority appeal decision of the divisional court below. 24 Cloud v. Canada (Attorney General), [2005] 1 S.C.R. vi (note). 25 Northwest, supra note 20 at para

7 proceedings legislation during the material time required resort to the codified rules of civil procedure and the common law. 26 Over time, the Baxter Class Action, filed in Ontario in 2000, became a focal point of litigation. Sometimes billed as a national class action, the Baxter Class Action purported to proceed on behalf of individuals who had attended Indian Residential Schools across Canada. The Government of Canada, along with dozens of religious entities, were named as defendants. The Baxter Class Action received support in Manitoba and Nova Scotia. 27 By 2005, following the certification of the Cloud Class Action, the pressures around the Baxter Class Action intensified, as it approached the possibility of its own certification hearing. D. Early Negotiations: Coordinating Class Proceeding In 2005, with further litigation on the horizon, the stakeholders to the Indian Residential Schools litigation undertook a course of discussions which eventually led to a meeting of the minds: not only was it advisable to regularize a series of class proceedings across Canada, but the entirety of those proceedings could be resolved via settlement. The lengthy and difficult negotiations were led by the Honourable Mr. Justice Frank Iacobucci, then retired from the Supreme Court of Canada, whose role was as the principal negotiator on behalf of the Federal Government. The ensuing discussions were robust and inclusive by design and by necessity. 28 Numerous counsel with Plaintiffclients participated in the negotiations, 29 but the Assembly of First Nations and three Inuit groups also represented class interests at large. In addition to Canada, over fifty distinct religious entities participated as Defendants. Eventually, a series of identical and regularized class actions would be filed in each of nine jurisdictions. The parties would simultaneously engage in negotiations with the goal of reaching a comprehensive settlement agreement, which eventually manifested in 2006 as the Indian Residential Schools Settlement Agreement. i. Regularizing the Class Proceedings The sequencing of litigation events and the development of litigation tools was an important aspect of the agreement reached by the parties. 26 Ammaq et al v. Canada (Attorney General), 2006 NUCJ 24 at para. 4; Kuptana v Canada (Attorney General), 2007 NWTSC 1 at para TRC Report, supra note 12 at p Affidavit of Frank Iacobucci, sworn on July 28, 2006 at para. 39. Joint Motion Record, vol. 3, tab 5, p , online: 29 The Plaintiff counsel were later self-sorted into three separate groups, each of whose membership was defined at the time of the Indian Residential Schools Settlement Agreement, namely, the Merchant Law Group, the National Consortium, and Unaffiliated or Independent Counsel

8 The stakeholders agreed that a first crucial step towards a national settlement was to amalgamate and re-launch the various ongoing litigation (including class litigation). 30 Stakeholder Plaintiffs collaborated with the Defendants to launch a primary class action in each of nine jurisdictions across Canada: the statements of claim for each were regularized and substantively identical. 31 In certain jurisdictions, rather than opening new court files, the file of an existing class proceeding was used. In Ontario, for example, the Baxter Class Action was used, and a motion was brought to amend the pleadings and the style of cause (as Fontaine et al v Canada (Attorney General) et al.). 32 In those regularized statements of claim, the Plaintiffs recognized the superiority of the streamlined approach they had opted for. 33 They also set out various reasons for 30 Agreement in Principle, dated November 20, 2005 at Schedule G. Joint Motion Record, vol. 1, tab 1, p. 0066, online: < 31 Those actions were launched as follows: Larry Philip Fontaine et al v. The Attorney General of Canada et al, launched pursuant to the Class Proceedings Act, 1992, S.O. 1992, c. 6 (the Ontario action was framed in such a way as to include the claims of all causes of action arising in the provinces of Nova Scotia, Newfoundland and Labrador, Prince Edward Island, and New Brunswick, although the latter three provinces had not been the site of any recognized Indian Residential School institution); Flora Northwest et al v The Attorney General of Canada et al, launched pursuant to the Class Proceedings Act, S.A. 2003, c. C Camble Quatell et al v. Attorney General of Canada et al, launched pursuant to the Class Proceedings Act, R.S.B.C. 1996, c. 50. Christine Semple et al v. Attorney General of Canada et al, launched pursuant to the Class Proceedings Act, C.C.S.M. c. C130. Rosemarie Kuptana et al v. The Attorney General of Canada et al, launched pursuant to Rule 62 of the Rules of the Supreme Court of the Northwest Territories, N.W.T. Reg Michelline Ammaq et al v. Attorney General of Canada et al, launched pursuant to Rule 62 of the Rules of the Supreme Court of the Northwest Territories, N.W.T. Reg , as adopted by the Territory by operation of Section 29 of the Nunavut Act, S.C. 1993, c. 28. John Bosum/Clifford House et al v. The Attorney General of Canada et al, launched pursuant to Articles of the Civil Code of Procedure (Québec). Kenneth Sparvier et al v. The Attorney General of Canada et al, launched pursuant to the Class Actions Act, S.S. 2001, c.c Rosemarie Kuptana et al v. The Attorney General of Canada et al, launched pursuant to Rule 5(11) of the Supreme Court Rules (British Columbia) B.C. Reg. 220/90 as adopted by the Territory by operation Section 38 of the Judicature Act (Yukon) R.S.Y. 2002, c Notice of Motion (Amendment of Pleadings, Certification, Settlement Approval & Fee Approval), returnable August 29, 30 and 31, Joint Motion Record, vol. 1, tab 3, p , online: < 33 See for example: John Bosum/Clifford House et al v. The Attorney General of Canada et al (Statement of Claim) at p. 17, paras. 1 & 4, online: < The Statement of Claim indicates that the regularized class proceeding was an amalgamation of approximately nineteen (19) different putative class action statements of claim brought in various jurisdictions across Canada and represent[ed] the distillation of all issues related to Residential Schools' attendance which the parties to this proceeding seek to address, in substantially identical format, in each of the Forums. It goes on to note: [T]he effort to subsume essentially all existing claims into a single, standard class action claim to be brought forward in each of the Forums represents an efficient yet - 8 -

9 proceeding as a class, acknowledging the pressures and difficulties of traditional civil litigation. 34 ii. Defining the Class The regularized statements of claim also included a working definition for the Class Members on whose behalf litigation could be brought. 35 That definition included three components: the Survivor Class, the Family Class, and the Deceased Class. 36 Each Class had unique issues and, therefore, different stakes in the litigation. Of central importance to the regularized Indian Residential Schools class proceedings and their settlement were the particular vulnerabilities of the defined Class. In their regularized statements of claim, the Representative Plaintiffs alleged that in this case, the Class Members, are by definition, vulnerable and disadvantaged individuals, which regionally sensitive method of fully and fairly addressing the concerns of the Plaintiffs and the proposed Classes. 34 Ibid at pp , paras : [111] [I]t would be prohibitively expensive for individual members of the Class to be required to bring separate actions. [112] As there are thousands of Class Members, individual litigation would be repetitive for the parties, especially for Canada and the Churches. Individual litigation would also place an unworkable burden on the judicial system. [113] A class proceeding will greatly increase efficiency for the Class Members, Canada, the Churches and the court, since, in this way, the common issues can be determined in one proceeding in a court-managed setting with all relevant expert witnesses being required to attend and testify once as opposed to each plaintiff having to prove liability through the calling of experts in multiple actions. The enormous cost savings of proceeding by way of a class proceeding are obvious. Further, the prosecution of several separate individual actions would create the risk of inconsistent or varying adjudications. [114] The claims pursued within this class proceeding are of such a nature that, in the absence of a class proceeding, it is likely that most Class Members would not have access to justice in any meaningful way. It is anticipated that many would not bring their claims forward because of the risks, costs, delays and, in many cases, the amount of damages involved. [...] 35 The respective Classes were defined by the Plaintiffs upon their filing of regularized statements of claim and those definitions were later approved by the courts upon certification of the underlying class proceedings. The details of these steps are discussed in further detail below. 36 See definitions at paras. 4 to 6 of the Approval Orders; for example, Fontaine v. Canada (Attorney General) (15 December 2006), Montreal , (QCCS), online: < Though the definitions contain additional nuance, the basic structure is described as follows. The common issues of the Survivor Class were central to the litigation, since the Survivor Class generally included those residents of Canada who were living as of May 30, 2005, and who resided at an Indian Residential School prior to December 31, The Family Class generally included those Canada residents with specified relations to Survivor Class Members, including spouses, children, grandchildren, parents, grandparents, and siblings. The Deceased Class generally included those individuals who resided at an Indian Residential School prior to December 31, 1997, but who died as a Canadian resident prior to May 30,

10 further hampers their individual ability pursue their claims on case by case basis. 37 Compounding the issue, the aging and shrinking population 38 of former Indian Residential School residents was viewed as increasingly fragile. Moreover, the vulnerability and disadvantage of former residents of Indian Residential Schools have on many times been attributed to the existence of Indian Residential Schools, and therefore, to the very allegations at the heart of the class proceedings. 39 Vulnerability was a cited basis for certification of the Cloud Class Action by the Court of Appeal for Ontario, which noted that the prospective plaintiffs in that action sought to represent a class of individuals who are aging, very poor, and in some cases still very emotionally troubled by their experiences at the [Mohawk Institute Residential School]. 40 iii. Selecting Representatives The regularized statements of claim selected a variety of Representative Plaintiffs. Those individuals from across Canada provided pertinent life details in the pleading and represented the Survivor, Family, and Deceased Classes. 41 Many of them had been Representative Plaintiffs in previously filed class actions. In the regularized statements of claim, the Representative Plaintiffs also assured the courts that they were proper representatives: [115] The proposed representatives, who reside in every jurisdiction in which a Residential School operated during the Class Period, and who were subjected to a vast variety of actionable breaches by Canada and the Churches, can fairly and adequately represent the Class and do not have an interest in conflict with the interests of the other Class Members. Their claims are typical of the class as a whole. 42 Similar statements were made by Representative Plaintiffs via affidavit. 43 iv. The Agreement-in-Principle 37 John Bosum/Clifford House et al v. The Attorney General of Canada et al (Statement of Claim) at para Fontaine et al. v. Canada et al., 2006 YKSC 63 at paras. 1, 63, online : < > 39 See, for example, Fontaine v. Canada (Attorney General), 2017 BCSC 939 at paras. 2, Cloud v Canada (Attorney General), 2004 CanLII (ON CA) at para Larry Philip Fontaine et al v. The Attorney General of Canada et al (Amended Statement of Claim) at paras Joint Motion Record, vol. 3, tab 3, pp , online: < 42 Ibid at para Joint Motion Record, vol. 3, tab 3, p See, for example, the Affidavit of Michelline Ammaq, sworn July 17, 2006 ( Ammaq Affidavit ) at paras Supplementary Joint Motion Record (Certification, Settlement Approval and Approval of Legal Fees, Returnable August 29-31, 2006), vol. II, tab 13, pp , online: <

11 Apart from the mechanics of litigation, the stakeholders also came to substantial agreement on the basic terms of settlement, becoming parties to an Agreement-in- Principle on November 20, With a comprehensive settlement to follow, the parties detailed that it would include: (i) the Common Experience Payment, to be available to members of the Survivor Class on the basis of the number of years during which they resided at an eligible Indian Residential School; (ii) the Independent Assessment Process, an out-of-court adjudicative process available to assess claims of sexual abuse, serious physical abuse, and other wrongful acts; and, (iii) the launch of truth and reconciliation, commemoration, and healing initiatives. 45 The parties recognized that the Agreement-in-Principle would require Cabinet approval in order to bind Canada, and that various mechanics of their proposal would need to be fleshed out in order to create a comprehensive settlement. 46 In order to create the latter, court approval from all nine jurisdictions was needed, failing which settlement could not be brought into effect. 47 v. The Indian Residential Schools Settlement Agreement The parties therefore worked towards a comprehensive settlement which they could put before the courts for approval. The product of those further negotiations, the Indian Residential Schools Settlement Agreement was signed by Canada on June 15, The Settlement Agreement followed the basic outline of the Agreement-in-Principle, including the above-noted compensation processes and reconciliatory initiatives. After finalizing the Settlement Agreement, the settling parties moved to have the class proceedings certified, and to have their settlement blessed in nine court hearings across the country. The parties granted their unanimous consent to both certification and approval as a package. E. The Settlement Agreement and the Protection of Class Members 44 Agreement in Principle, dated November 20, 2005, online: 45 Ibid at p Ibid at p Ibid at p Russell Affidavit, supra note 13 at para. 4. Joint Motion Record at vol. 4, tab 8, p , online: <

12 Comprising over 500 pages of preamble, articles, and schedules, the Indian Residential Schools Settlement Agreement represented the settling parties joint efforts towards fair, comprehensive and lasting resolution of the legacy of Indian Residential Schools. 49 Being aware of the particular vulnerabilities of the Class, the parties recognized the Settlement Agreement as being in the best interests of the defined Class. Those parties crafted the Settlement Agreement with various protective features to uphold those interests, yet the courts nevertheless noted several deficiencies which they sought to correct. i. Characterizing the Settlement Agreement The parties all characterized the Settlement Agreement as a compromise beneficial to the interests of Class. The Honourable Frank Iacobucci, as Federal Representative, affirmed his belief that the terms of settlement provided a just, honourable, and lasting resolution of historical significance, representing a shared vision as to how the Indian residential schools legacy should be resolved. 50 The Senior Advisor to the Director General of the Office of Indian Residential Schools Resolution Canada, David Russell, described the Settlement Agreement as achieving fair, comprehensive and lasting resolution via consultation with Aboriginal people, the churches and other parties. 51 Former National Chief of the Assembly of First Nations, Phil Fontaine, wrote: I have reviewed and considered the settlement package and have consulted with class counsel in relation to same. I have also reviewed the settlement package with countless Survivor Class Members and numerous Chiefs, both as a former student of an [Indian Residential School] and in my capacity as the elected national chief of the AFN and I believe that the settlement package is for the benefit of the Survivor Class Members and meets our objective of securing a fair and just resolution of the residential school legacy. 52 Leonard Marchand, Plaintiffs counsel associated with Independent Counsel, referred to the Settlement Agreement at large as a fair, just, and reasonable alternative to protracted and complex litigation. 53 Plaintiff Counsel Paul Vogel affirmed that the 49 Indian Residential Schools Settlement Agreement Preamble, dated May ( IRSSA ) at B. p. 6, online: < > 50 Affidavit of Frank Iacobucci, sworn July 23, 2006 at para. 45. Joint Motion Record, vol 3, tab 5, p , online: < 51 Russell Affidavit, supra note 11 at para. 5. Joint Motion Record, vol 4, tab 5, p , online: < 52 Affidavit of Larry Philip Fontaine sworn on July 28, 2006 at para. 5. Joint Motion Record, vol 3, page Affidavit of Leonard Marchand, sworn on July 27, 2006 at para. 22. Joint Motion Record, vol. 3, tab 9, p

13 feedback from the meetings, s, and telephone calls from class members ha[d] been overwhelmingly favourable. 54 Various Representative Plaintiffs affirmed that the terms of the Settlement Agreement would fairly and adequately meet the needs of members of the survivor class. 55 From British Columbia to Nunavut, the nine courts were in turn moved by these endorsements. Each court granted its unconditional approval upon its respective analysis of the terms of settlement. Observing the mixture of compensation mechanisms and executive authorities to be created by the settlement package, it was judicially acknowledged that the result was beyond any remedy that a court would have the jurisdiction to fashion. 56 ii. Protective Components of the Settlement Agreement In exchange for the class members collective release of the defendants from liability, the settlement package put in motion a variety of processes geared towards compensation, truth, reconciliation, healing, and commemoration. Opt-out and Notice A key mechanic in achieving fairness was the opt-out process. Loath to impose the Settlement Agreement upon class members against their will, parties and the courts relied on the opt-out mechanic to allow class members to vote with their feet. Accompanying the opt-out right was a robust notice plan designed to inform class members of the Settlement Agreement. 57 Opt-out provisions were designed to leave the ultimate acceptance or rejection of the Settlement Agreement under the control of former IRS residents. 58 A threshold of 5,000 opt-outs was set to void the Settlement Agreement. 59 The threshold was never met, with only a small number of opt-outs having been filed. Truth, Reconciliation, Healing, and Education 54 Affidavit of Paul Vogel, sworn on July 20, 2006 at para. 87. Joint Motion Record, vol. 2, tab 7, p , online: < > 55 See, for example, the Affidavit of Michelline Ammaq, sworn on July 17, 2006 at para. 20. Joint Motion Record, vol. 2, tab 13,.p See also, Affidavit of Benny Doctor, sworn on August 3, 2006 at para. 35. Joint Motion Record, vol. 2, tab 10, p Fontaine et al. v. Canada et al., 2006 YKSC 63 ( Fontaine YK ) at para. 8. Online : < > 57 Detailed Notice, Indian Residential Schools Settlement Agreement, online: < > 58 Fontaine YK, supra note 56 at para IRSSA, supra note 49 at Article

14 The Settlement Agreement created the Truth and Reconciliation Commission of Canada and envisioned a successor organization in the National Centre for Truth and Reconciliation. 60 It also allocated monies for healing and educational purposes. Expansion of the Class: Article 12 For certainty s sake, the Settlement Agreement specifies the institutions recognized as Indian Residential Schools. This was essential for the proper definition of the class: only those individuals who resided at a recognized institution would be deemed class members. Those institutions were listed at Schedules E and F to the Settlement Agreement. 61 Nevertheless, the settling parties also had finite knowledge about such institutions at the time of settlement. They therefore included Article 12 to permit individuals to seek the recognition of other institutions, requiring proof that Canada placed students, exercised operational responsibility, and cared for children resident there. 62 Article 12 indirectly permits the expansion of class membership, at least where a new institution is recognized in time for its former residents to take the compensation benefits described below. New applications are no longer allowed under Article 12, having been foreclosed by court order in July During the eligible timeframe, a total of 9,469 requestors sought the addition of 1,530 distinct institutions under the Settlement Agreement. 63 Compensation to Class Members: CEP and Personal Credits All class members were entitled to seek compensation on the basis of their years of residence at an Indian Residential School, known as a Common Experience Payment ( CEP ). 64 For example, an individual who spent twelve years residing at an Indian Residential School would be entitled to $43,000 in CEP. CEP was designed as a straightforward, paper-based process without legal counsel. The process made allowance for reconsiderations and appeals to the courts. 65 A four-year timeline was negotiated for the filing of CEP applications, expiring on September 19, 2011 (four years from the Implementation Date of September 19, 2007). 66 A further year was allowed for 60 Ibid at Schedule N, online: 61 Ibid at Schedules E & F, online: < ResidentialSchools.PDF> and < AdditionalResidentialSchools.PDF> 62 Ibid at Article See: Indigenous and Northern Affairs Canada, Eligible Indian Residential Schools (22 April 2013), online: < 64 IRSSA, supra note 49 at Article Five; see also: Indigenous and Northern Affairs Canada, Common Experience Payments (22 April 2013), online: 65 IRSSA, ibid at Article Ibid at p. 10, CEP Application Deadline

15 applications to be brought by individuals under proven disability. Canada made advance payments on CEP to certain elderly recipients, beginning after the May 10, 2006 signing. The administration of CEP is now largely concluded. Eligible CEP recipients were similarly entitled to receive up to $3,000 in Personal Credits. 67 Personal Credits were educational credits with no cash value, transferrable only to family members of eligible CEP recipients, and redeemable only at approved educational institutions for tuition and related costs. The administration of Personal Credits was carried out between 2013 and Other Compensation: the DAF and Beneficiaries To fund CEP and Personal Credits, Canada was to allocate a minimum $1.9B into the Designated Amount Fund ( DAF ), in respect of which it would serve as trustee. Residual funds remaining in the DAF, after accounting for the payout of CEP and Personal Credits, were to be given to two trust funds: the Inuvialuit Education Fund and the National Indian Brotherhood Trust Fund. The bulk of those funds have now been transferred. Compensation beyond the Class: the IAP Perhaps the most complex of the processes created by the Settlement Agreement has been the Independent Assessment Process ( IAP ). 68 The IAP provides an inquisitorial adjudicative model to assess individual claims for childhood abuse connected to the operation of an Indian Residential School. 69 The IAP is available not only to class members but also to other minors who were abused in connection to the operation of an Indian Residential School. IAP claimants benefit from Canada s uncapped funding. Based in large part on the previous Alternative Dispute Resolution Model, with modifications made by a designed working group, 70 the IAP Model strived for consistency and fair compensation in the IAP. In order to achieve quick resolution, the office of the Chief Adjudicator and the Indian Residential Schools Adjudication Secretariat have been established with minimum resolution targets on an annual basis. 71 The IAP is designed to be fair and efficient, while acknowledging the particular vulnerabilities of IAP claimants. As such, the drafters agreed to a sensitive, claimantcentered process. Claimants are encouraged to seek legal counsel while advancing their claims. 67 Certain conditions precedent were put in place under Article 5.07, but those conditions precedent were ultimately satisfied. 68 IRSSA, supra note 49 at Article Six. 69 Ibid at Schedule D ( IAP Model ), online: < IAP.PDF>. 70 Ibid at Schedule U, online: < IAPWorkingGroupMembers.PDF> 71 Ibid at Article

16 The deadline for the IAP expired on September 19, overwhelming majority of IAP claims are now resolved. 73 As of present, the No Assignments The Settlement Agreement would create a considerable flow of compensation monies to former IRS residents. Predicting that third parties might attempt to intervene in that flow, the settling parties included a No Assignments provision under Article As discussed below, No Assignments has taken on a very broad sense, prohibiting the diversion of any compensation monies from eligible claimants, other than perhaps to cover the properly incurred legal fees. Legal Fees As part of the settlement, Canada agreed to pay lump sums to each of the three counsel groups (Merchant Law Group, the National Consortium, and Independent Counsel) in compensation for the legal fees they incurred in the prosecution of the underlying litigation and its settlement. Though the arrangement was criticized by at least one judge, who noted the conflict of interest of class counsel in simultaneously negotiating their own fees and their clients rights, 75 it was ultimately approved. Oversight Mechanisms Envisioning the considerable administrative difficulties the Settlement Agreement was likely to pose, the settling parties detailed several checks and balances to manage those issues in a localized fashion. One was to provide specific rights of access to the courts. For example, the CEP appeal process was designed to end before a judicial authority. 76 Particularly complex IAP claims could be diverted from internal processes to a judicial authority. 77 Furthermore, dissatisfied Article 12 requestors could bring their requests to add institutions before the courts. 78 Another was to set up and fund committees to oversee aspects of implementation. The Oversight Committee was created to supervise the activities of the Chief Adjudicator in 72 Myers v. Canada (AG), 2015 BCCA Indian Residential Schools Adjudication Secretariat, Report, IAP Statistics from September 19, 2007 to January 31, 2018, online: < 74 IRSSA, supra note 49 at Article Northwest, supra note 20 at para IRSSA, supra note 49 at Article IAP Model, supra note 69 at (b) (iii), p. 7, online: < IAP.PDF>. 78 IRSSA, supra note 49 at Article 12.01(5)

17 administering the IAP. 79 The National Administration Committee would oversee the administration of the Settlement Agreement at large, including by hearing CEP reconsideration requests. 80 Both committees have been populated by diverse representatives of all settling parties and are encouraged to make decisions on consensus. The committees permit all settling parties to participate in the ongoing administration of the Settlement Agreement, while serving as a mechanism by which notice of key developments may be circulated to those parties and their constituents. 81 F. The Courts Approval and Noting of Deficiencies Though satisfied that the Settlement Agreement was fair, just, and in the best interests of the Class, the courts endorsements were not in the nature of a rubber-stamp. While the settling parties had built the above-noted protections into the Settlement Agreement, the experienced judiciary was not entirely satisfied. They noted several deficiencies which required further attention from the parties. i. Noting deficiencies: the importance of the class members interests During the approval hearings, the courts were required to be mindful of the unique vulnerability of Class Members and the protection of their interests. While class counsel and representative plaintiffs extolled the Settlement Agreement, the courts had to analyze it critically. As Catherine Piché has noted, such tension may manifest at the approval stage, risking a divide between courts and class counsel as to how the best interests of class members are to be served. 82 The divide may become particularly pronounced as objectors come forward to voice their concerns about a settlement, as occurred throughout Canada in the wake of the Settlement Agreement. In the case of Indian Residential Schools litigation, however, the approving judges had a considerable advantage to free them from that uncomfortable isolation each other. In light of the pan-canadian context of the underlying class actions, considerable collaboration amongst judicial authorities across the country was required. The keen and exacting scrutiny of the courts led to the identification of several deficiencies within the settlement, items that were not so fundamental as to require that the courts withhold or condition their approval. Some deficiencies were admittedly beyond the courts jurisdiction to correct: a prominent example was the commentary of Brenner CJBC regarding the delivery of an apology by Canada for the Indian Residential School system and its legacy. Noting that the courts lacked the jurisdiction to require an apology, and that a forced apology would in any event be lacking, Brenner CJBC 79 IAP Model, supra note 69 at (r), p IRSSA, supra note 49 at Article Request for Direction Service Protocol, released February 2014, online: < f> 82 Catherine Piché, Fairness in Class Action Settlements (Toronto: Thomson Reuters Canada Ltd, 2011) at p