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11
Playing At The National StagePlaying At The National Stage
Pitfalls & SuccessPitfalls & Success
JOHN A. McKIGGANJOHN A. McKIGGANArnold Pizzo McKigganArnold Pizzo McKiggan
306 - 5670 Spring Garden Road306 - 5670 Spring Garden RoadHalifax, Nova Scotia B3J 1H6Halifax, Nova Scotia B3J 1H6
22
A Brief History of Canada’s IndianA Brief History of Canada’s Indian Residential School LitigationResidential School Litigation
33
Individual Lawsuits Individual Lawsuits 1995 fewer than 12 claims filed1995 fewer than 12 claims filed
By 2005 over 12,000 claims filedBy 2005 over 12,000 claims filed
90% alleged physical abuse90% alleged physical abuse
60% alleged sexual abuse60% alleged sexual abuse
Canada denies liability: Pleads limitation Canada denies liability: Pleads limitation defencesdefences
44
Blackwater claim filed 1995Blackwater claim filed 1995
Individual LawsuitsIndividual Lawsuits
55
BlackwaterBlackwater
B.C. Trial decision: Canada 75% Churches B.C. Trial decision: Canada 75% Churches
25% 25%
B.C. Court of Appeal: Canada 100% B.C. Court of Appeal: Canada 100%
responsible (vicarious liability)responsible (vicarious liability)
Supreme Court of Canada: Affirms 75/25 split Supreme Court of Canada: Affirms 75/25 split
66
Blackwater Blackwater
Canada’s “Secret” strategy memoCanada’s “Secret” strategy memo
77
““Secret” strategy memoSecret” strategy memo
At least until an adverse At least until an adverse judicial decision is made, judicial decision is made, a a litigation approach may well litigation approach may well keep the number of claimants keep the number of claimants down to a minimum.down to a minimum.
88
Canada’s Litigation StrategyCanada’s Litigation Strategy
99
““Secret” strategy memoSecret” strategy memo
The issue has been raised as to The issue has been raised as to the possibility of a great number the possibility of a great number of former residential school of former residential school students launching a massive students launching a massive class action against the Crown…class action against the Crown…it is unlikely that such an it is unlikely that such an application would be successful.application would be successful.
1010
Bernard Class ActionBernard Class Action
1111
This is also the first time the Department of Indian Affairs has faced a class action lawsuit by former students of a residential school…
1212
Bernard Class ActionBernard Class Action Nora Bernard files Class Action for all former Nora Bernard files Class Action for all former
Shubenacadie school studentsShubenacadie school students
Claims loss of language and culture for all Claims loss of language and culture for all studentsstudents
Canada unsuccessfully attempts to strike Canada unsuccessfully attempts to strike claim as class actionclaim as class action
Bernard claim joins Baxter National Class Bernard claim joins Baxter National Class Action 2002 Action 2002
1313
Blackwater Blackwater
““Secret” strategy memoSecret” strategy memo
Bernard Class Action Bernard Class Action
Cloud Class Action (Mohawk Cloud Class Action (Mohawk
School) 1998School) 1998
1414
Cloud Class Action Cloud Class Action
Claim on behalf of all survivors Claim on behalf of all survivors
of Mohawk Institute of Mohawk Institute and their and their
familiesfamilies
Canada and Church oppose Canada and Church oppose
certification: 2001certification: 2001
1515
Blackwater Blackwater
““Secret” strategy memoSecret” strategy memo
Bernard Class Action Bernard Class Action
Cloud Class Action Cloud Class Action
Baxter National Class Action 2000Baxter National Class Action 2000
1616
Baxter National Class ActionBaxter National Class Action Claim for all students who attended a Claim for all students who attended a
Residential School in Canada since 1920Residential School in Canada since 1920
Claims on behalf of parents and children of Claims on behalf of parents and children of survivorssurvivors
Loss of language and culture, emotional, Loss of language and culture, emotional, psychological, physical and sexual abusepsychological, physical and sexual abuse
Canada files 81 third party claims against Canada files 81 third party claims against religious organizations - significant delayreligious organizations - significant delay
1717
Individual Lawsuits Individual Lawsuits
Blackwater Blackwater
R.C.A.P. R.C.A.P.
““Secret” strategy memoSecret” strategy memo
Bernard Class Action Bernard Class Action
““Statement of Reconciliation” Statement of Reconciliation”
Cloud Class Action Cloud Class Action
Baxter National Class Action Baxter National Class Action
Canada starts A.D.R. projects: 2003 Canada starts A.D.R. projects: 2003
1818
A.D.R. ProjectsA.D.R. Projects
Government study concludes:Government study concludes:
““Arguments against certification will be Arguments against certification will be
strengthened by the establishment of an A.D.R. strengthened by the establishment of an A.D.R.
model that is a ‘preferable procedure’ to class model that is a ‘preferable procedure’ to class
proceedings. In this regard,proceedings. In this regard, creating a model creating a model
that is more ‘preferable’ that is more ‘preferable’ to class proceedingsto class proceedings
should be an overarching consideration should be an overarching consideration in the in the
building of the model.”building of the model.”
1919
Court of Appeal Critical of ADRCourt of Appeal Critical of ADR
““It is a system unilaterally created by one of the It is a system unilaterally created by one of the
respondents in this action and could be respondents in this action and could be
unilaterally dismantledunilaterally dismantled without the consent of without the consent of
the appellants. It deals only with physical and the appellants. It deals only with physical and
sexual abuse. It caps the amount of possible sexual abuse. It caps the amount of possible
recovery…recovery…it does not compare favourably with a it does not compare favourably with a
common trial.”common trial.”
Cloud:Cloud: Ontario Court of AppealOntario Court of Appeal
2020
Blackwater Blackwater
““Secret” strategy memoSecret” strategy memo
Bernard Class Action Bernard Class Action
Cloud Class Action Cloud Class Action
Baxter National Class Action Baxter National Class Action
A.D.R. projects A.D.R. projects
2121
Blackwater Blackwater
““Secret” strategy memoSecret” strategy memo
Bernard Class Action Bernard Class Action
Cloud Class Action Cloud Class Action
Baxter National Class Action Baxter National Class Action
A.D.R. projectsA.D.R. projects
Alberta Test Cases Alberta Test Cases
2222
Lawsuits Continue Lawsuits Continue
0
2000
4000
6000
8000
10000
12000
1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005
Bernard
Canada’s “Apology”
Cloud
Baxter
ADR Projects
2323
Cloud Class ActionCloud Class Action
Ontario Court of Appeal certifies Ontario Court of Appeal certifies
Cloud Class Action: 2004Cloud Class Action: 2004
Canada’s leave to appeal to Canada’s leave to appeal to
S.C.C. denied May 2005S.C.C. denied May 2005
2424
May 30, 2005May 30, 2005
Canada appoints Canada appoints federal negotiatorfederal negotiator
Former Supreme Former Supreme Court of Canada Court of Canada Justice, Honourable Justice, Honourable Frank IacobucciFrank Iacobucci
2525
May 2005 – May 2005 – November 2005November 2005
Traveling road showTraveling road show
2626
May 2005 – May 2005 – November 2005November 2005
CanadaCanadaChurchesChurchesCounsel for Counsel for
SurvivorsSurvivorsAssembly of Assembly of
First NationsFirst Nations
2727
November 2005November 2005
Agreement in PrincipleAgreement in Principle
2828
Baxter v. Canada. 2006 OJ 4968;
Quatell v. Canada. 2006 BCJ 3231;
Kuptana v. Canada (Attorney General) 2007 NWTJ 1;
Ammaq v. Canada, 2006 Nu. J. No. 26;
Semple v. Attorney General of Canada 2006 MBQB 285; Bosum v. Attorney General of Canada 2006 QCCS 5794; Sparvier v. Attorney General of Canada 2006 SKQB 533; Northwest v. Canada (Attorney General) 2006 ABQB 902; Fontaine v. Canada. 2006 YKSC 63
2006: Approval Hearings2006: Approval Hearings
2929
December 2006December 2006
National Class Action National Class Action
settlement certified and approvedsettlement certified and approved
3030
Settlement HighlightsSettlement Highlights
3131
Common Experience PaymentCommon Experience Payment
80,000 potential claimants80,000 potential claimants
2 Billion Dollar Fund2 Billion Dollar Fund
Expect average payment Expect average payment $24,000.00$24,000.00
3232
Independent Assessment Independent Assessment ProcessProcess
Compensation for:Compensation for:
Physical abusePhysical abuse
Sexual abuseSexual abuse
Serious psychological abuseSerious psychological abuse
Expect payments to total over 2 Billion Dollars Expect payments to total over 2 Billion Dollars
3333
Truth and ReconciliationTruth and Reconciliation
$60 Million for Truth and $60 Million for Truth and Reconciliation CommissionReconciliation Commission
3434
CommemorationCommemoration
$20 Million for events $20 Million for events
and memorialsand memorials
3535
HealingHealing
$125 Million to Aboriginal Healing $125 Million to Aboriginal Healing FoundationFoundation
3636
The largest class The largest class action settlement action settlement
in Canadian in Canadian historyhistory
3737
The largest The largest historical redress historical redress settlement in the settlement in the
world?world?
3838
The Keys to SuccessThe Keys to Success
3939
The Keys to SuccessThe Keys to Success
FinancingFinancing
4040
TeamworkTeamwork
The Keys to SuccessThe Keys to Success
4141
The Keys to SuccessThe Keys to Success
CooperationCooperation
4242
The Keys to SuccessThe Keys to Success
Dispute ResolutionDispute Resolution
4343
The Keys to SuccessThe Keys to Success
Managing ResourcesManaging Resources
4444
The Keys to SuccessThe Keys to Success
Co-Counsel AgreementCo-Counsel Agreement
4545
Good Luck!Good Luck!