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!