Moushoom v. Canada (Attorney General)

Moushoom v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2023-12-21
Neutral citation
2023 FC 1739
File numbers
T-1120-21, T-141-20, T-402-19
Decision Content
Date: 20231221
Dockets: T-402-19
T-141-20
T-1120-21
Citation: 2023 FC 1739
Ottawa, Ontario, December 21, 2023
PRESENT: The Honourable Madam Justice Aylen
Docket: T-402-19
BETWEEN:
XAVIER MOUSHOOM, JEREMY MEAWASIGE (BY HIS LITIGATION GUARDIAN, JONAVON JOSEPH MEAWASIGE) AND JONAVON JOSEPH MEAWASIGE
Plaintiffs
and
THE ATTORNEY GENERAL OF CANADA
Defendant
Docket: T-141-20
AND BETWEEN:
ASSEMBLY OF FIRST NATIONS, ASHLEY DAWN LOUISE BACH, KAREN OSACHOFF, MELISSA WALTERSON, NOAH BUFFALO-JACKSON (BY HIS LITIGATION GUARDIAN, CAROLYN BUFFALO), CAROLYN BUFFALO AND DICK EUGENE JACKSON ALSO KNOWN AS RICHARD JACKSON
Plaintiffs
and
HIS MAJESTY THE KING
AS REPRESENTED BY THE ATTORNEY GENERAL OF CANADA
Defendant
Docket: T-1120-21
AND BETWEEN:
ASSEMBLY OF FIRST NATIONS AND ZACHEUS JOSEPH TROUT
Plaintiff
and
THE ATTORNEY GENERAL OF CANADA
Defendant
ORDER AND REASONS
(Class Counsel Fee Motion)
[1] In the underlying class proceedings, the Plaintiffs advanced claims for two related categories of discriminatory conduct: (i) Canada chronically underfunded the First Nations Child and Family Services [FNCFS] program on reserves and in the Yukon, and operated it in a discriminatory manner, which systemically incentivized the removal of First Nations children from their families, communities and cultures; and (ii) Canada failed to provide non-discriminatory access to essential health and social services, in breach of section 15 of the Canadian Charter of Rights and Freedoms and Jordan’s Principle.
[2] A settlement of the three underlying class actions was ultimately reached, and recently approved, pursuant to which Canada agreed to pay $23,343,940,000 in damages for its discriminatory conduct, as well as to fund various additional supports for the impacted First Nations youths and families.
[3] Now before the Court is a motion brought by Sotos LLP, Kugler Kandestin LLP, Miller Titerle + Co., Nahwegahbow, Corbiere and Fasken Martineau DuMoulin LLP, who are class counsel for the Plaintiffs in the underlying class proceedings [collectively, Class Counsel]. They seek an order approving their counsel fee.
[4] The circumstances of this motion are unique. The underlying settlement is what is known as a “mega-fund settlement”, a term used to describe class action settlements where the amount of recovery is in excess of $100 million. This mega-fund settlement is the largest class action settlement in Canadian history, by a significant margin, and this Court has yet to expressly consider how a settlement of this magnitude impacts the approach that the Court should take in assessing the reasonableness and fairness of the counsel fee sought to be approved.
[5] Moreover and importantly, these class actions did not raise entirely novel claims. To the contrary, Class Counsel deliberately commenced class proceedings that overlapped with a lengthy and ongoing proceeding before the Canadian Human Rights Tribunal [Tribunal]. In the Tribunal proceeding, Canada had already been found liable for the same discriminatory conduct that was alleged by certain class members for a portion of relevant period.
[6] When the first of these class proceedings was commenced (by counsel who had had no involvement in the Tribunal proceedings), the Tribunal’s liability finding was final and the Tribunal was in the process of determining the appropriate remedy. Six months later, the Tribunal issued a decision ordering compensation of approximately $9.59 billion.
[7] The settlement entered into between the parties settled both the class action proceedings and the Tribunal’s compensation awards. Given that the claims in the class action proceedings overlap, in part, with the claims advanced before the Tribunal, Class Counsel financially benefits from the recovery efforts secured before the Tribunal. Based on their final compensation agreements (which are discussed more fully below), Class Counsel achieved the maximum counsel fee available to them ($80 million) based solely on the $9.59 billion Tribunal recovery.
[8] Another unique aspect of this motion is that the parties reached a settlement of the quantum of Class Counsel’s fee after the hearing of the motion. When the motion was originally filed and argued before the Court, Class Counsel sought fees in the amount of $80 million (exclusive of taxes) and disbursements. Canada opposed the amount of fees sought as excessive, asserting that compensation in the range of $40-50 million, together with taxes and disbursements, was fair and reasonable. However, Canada’s counterarguments to approving the fees were of somewhat limited assistance to the Court because their submissions failed, in my view, to apply the necessary degree of rigour to the analysis. As a result of Canada’s approach, at the hearing of the motion, I raised a number of significant concerns with Class Counsel regarding the amount of, and basis for, the fees requested, which concerns had not been raised by Canada. Notwithstanding my concerns, during the hearing, Class Counsel continued to assert that $80 million in fees was entirely fair and reasonable in the circumstances.
[9] However, five days after the hearing, Class Counsel advised the Court that the parties had reached a settlement on the quantum of counsel fees, with Class Counsel agreeing to a significant reduction. Specifically, the parties agreed to settle on the following basis:
Class Counsel would receive $50 million in fees (exclusive of taxes and disbursements) for all work up until October 31, 2023; and
Class Counsel would be paid commercial hourly rates for work after October 31, 2023 until the Court’s approval of the last distribution protocol, up to a maximum of $5 million.
[10] The parties’ agreement on the quantum of fees is clearly a relevant consideration. But it does not change the degree of scrutiny that the Court must apply in its assessment of whether the fees sought are fair and reasonable.
[11] For the reasons that follow, I find that the counsel fee now jointly proposed by the parties remains excessive. I approve counsel fees in the amount of $40 million, plus disbursements and taxes, for all work completed to October 31, 2023. Moreover, I am satisfied that counsel fees for work completed from November 1, 2023 until completion of the last distribution protocol should be paid based on actual work performed (with no enhancement) using commercial hourly rates up to a maximum of $5 million. However, the approved amount of those fees shall be determined on a future motion or motions once the work has been completed, with appropriate supporting evidence.
I. Background
A. The proceedings before the Canadian Human Rights Tribunal
[12] In 2007, the Assembly of First Nations [AFN], represented by the law firm Nahwegahbow, Corbiere, and the First Nations Child and Family Caring Society of Canada [Caring Society] filed a complaint with the Canadian Human Rights Commission [Commission] against Canada. On October 14, 2008, the Commission referred the complaint to the Tribunal.
[13] The AFN and the Caring Society alleged that Canada was violating the Canadian Human Rights Act, RSC 1985, c H-6 [CHRA] by discriminating against First Nations children and families who live on reserve and in the Yukon by underfunding the delivery of child and family services. They argued that this discrimination was based on race and national or ethnic origin. The complaint noted the dramatic overrepresentation of First Nations children in foster care, the systemic and ongoing nature of the discrimination and the need for the proper implementation of Jordan’s Principle. Jordan’s Principle is a child-first principle and provides that where a government service is available to all other children and a jurisdictional dispute arises between Canada and a province/territory, or between departments in the same government regarding services to a First Nations child, the government department of first contact pays for the service and can seek reimbursement from the other government/department after the child has received the service. It is meant to prevent First Nations children from being denied essential public services or experiencing delays in receiving them.
[14] The complaint also described past efforts by the Caring Society, AFN and others to advocate for program reform and additional funding.
[15] After a 70-day hearing with 25 witnesses and 500 documentary exhibits, on January 26, 2016, the Tribunal found that Canada violated section 5 of the CHRA in two ways: (i) the FNCFS program discriminated against First Nations children and families on reserve and in the Yukon, resulting in inadequate fixed funding that hindered the delivery of culturally appropriate child welfare services, created incentives for its agencies to take First Nations children into care and failed to consider the unique needs of First Nations children and families; and (ii) Canada discriminated by taking an overly narrow approach to Jordan’s Principle, which resulted in service gaps, delays and denials [Merit Decision]. The Merit Decision recognized that Canada’s discriminatory funding practices caused First Nations children and families living on reserves and in the Yukon to suffer.
[16] The Tribunal ordered that Canada immediately cease its discriminatory practices and engage in any reforms needed to bring itself into compliance with the Merit Decision, and immediately implement Jordan’s Principle’s full meaning and scope. Finally, the Tribunal sought submissions from the parties regarding remedies.
[17] Neither Canada nor the complainants sought judicial review of the Merit Decision, which became final on March 2, 2016.
[18] In March 2019, the Tribunal returned to the question of remedy. Canada made submissions opposing entitlement to individual compensation, asserting that the Moushoom Class Action (defined below) was the preferable forum to determine the nature of class members’ compensatory rights, if any.
[19] In September 2019, the Tribunal rejected Canada’s arguments against compensation and ordered Canada to provide compensation in the amount of $40,000.00 plus interest to those children and their caregiving parents and grandparents who were affected by Canada’s discriminatory underfunding of family and child services or by its narrow application of Jordan’s Principle (as provided in the Merit Decision) [Compensation Decision]. The Compensation Decision awarded the maximum remedy the Tribunal could award under the CHRA, with the Tribunal stating:
In awarding the maximum amount allowed under our Statute, the Panel recognizes, to the best of its ability and with the tools that it currently has under the CHRA, that this case of racial discrimination is one of the worst possible cases warranting the maximum awards.
[20] On October 14, 2019, Canada sought judicial review of the Compensation Decision.
[21] On September 29, 2021, the Federal Court dismissed Canada’s application for judicial review of the Compensation Decision. In its decision, this Court urged the parties to work towards achieving a fair and just settlement.
[22] On October 29, 2021, Canada appealed this Court’s judicial review decision.
[23] On November 5, 2021, Canada requested, on behalf of all parties, that the appeal be held in abeyance until December 31, 2021 as the parties engaged in settlement discussions. The parties thereafter requested additional extensions to this abeyance while a settlement was pursued. The appeal remained in abeyance until the Final Settlement Agreement was approved and will shortly be discontinued, as required under the settlement.
B. The Class Actions
[24] In the underlying proceedings, the Plaintiffs advanced claims for two related categories of discriminatory conduct:
Canada chronically underfunded the FNCFS program on reserves and in the Yukon, and operated it in a discriminatory manner, which systemically incentivized the removal of First Nations children from their families, communities and cultures; and
Canada failed to provide non-discriminatory access to essential health and social services, in breach of section 15 of the Canadian Charter of Rights and Freedoms and Jordan’s Principle.
[25] In relation to the first category (the removed child claims), the Plaintiffs state that, for decades, Canada underfunded child and family services for First Nations children living on reserve and in the Yukon. In particular, Canada underfunded supportive prevention services that would allow First Nations children to remain in their homes. At the same time, Canada funded the removal of those children from their families and communities, which created a perverse incentive – namely, children had to be removed from their homes to receive public services that were available to children off reserve.
[26] The removal of children from their home causes severe and often permanent trauma. As such, it is typically only employed as a measure of last resort. However, in the case of First Nations children on reserve and in the Yukon, it became a measure of first resort due to the underfunding of services, resulting in the staggering overrepresentation of First Nations children in state care.
[27] The Plaintiffs state that this underfunding persisted despite: (a) the heightened need for such services on reserve due to the inter-generational trauma inflicted on First Nations people by the legacy of the Indian residential schools and the Sixties Scoop; and (b) Canada’s knowledge of the deficiencies in the FNCFS program based on numerous governmental and independent reports detailing these significant deficiencies, the inequities in the FNCFS program and their harmful impacts on First Nations people.
[28] The Plaintiffs state that the incentive to remove First Nations children from their homes has caused traumatic and enduring consequences for First Nations children (including the Representative Plaintiffs), many of whom already suffer the effects of trauma inflicted by Canada on their parents, grandparents and ancestors by Indian residential schools and the Sixties Scoop.
[29] In relation to the second category (the essential services claims), the Plaintiffs state that Canada failed to provide First Nations children with adequate and non-discriminatory access to essential health and social services and products, contrary to Jordan’s Principle. Jordan’s Principle, named after Jordan River Anderson (a First Nations child born with complex illnesses), is a legal obligation requiring that the government department first presented with a request for essential services by a First Nations child must pay for those services before arguing over which level of government or which department should pay. The Plaintiffs state that, notwithstanding that Canada has acknowledged its legal obligation to comply with Jordan’s Principle, Canada ignored this obligation for decades and denied crucial health and social services and products to many First Nations children.
[30] Three years after the Tribunal’s Merit Decision, on March 4, 2019, Xavier Moushoom commenced a proposed class action proceeding (Court file no. T-402-19) seeking compensation for children who had suffered discrimination related to the FNCFS program since April 1, 1991 and the discriminatory delivery of essential services and non-compliance with Jordan’s Principle since April 1, 1991 [Moushoom Class Action].
[31] On January 28, 2020, the AFN and a number of proposed representative plaintiffs commenced a second proposed class action proceeding (Court file no. T-141-20) [AFN Class Action], which overlapped with the Moushoom Class Action.
[32] On July 7, 2021, the Moushoom Class Action and the AFN Class Action were consolidated [Consolidated Action] on consent. However, the parties agreed to remove from the consolidated action claims relating to delays, denials or gaps in the provision of essential services before December 11, 2007 and that such claims would be addressed in a separate proceeding to be commenced by Zacheus Trout and the AFN. At that point in time, Canada took the position that Jordan’s Principle did not exist prior to December 12, 2007 (when the House of Commons passed a motion in support of Jordan’s Principle) and therefore opposed the certification of any claims before December 12, 2007.
[33] On July 16, 2021, Mr. Trout and the AFN commenced a proposed class action (Court file no. T-1120-21) dealing with the claims previously advanced in the Moushoom Class Action relating to delays, denials and gaps in the provision of essential services between April 1, 1991 and December 11, 2007 [Trout Class Action]. The Trout Child Class is named in memory of Mr. Trout’s two late children, Sanaye and Jacob Trout.
[34] On November 26, 2021, the Consolidated Action was certified as a class proceeding on consent.
[35] Canada subsequently abandoned its opposition to the pre-December 12, 2007 claims and on February 11, 2022, the Trout Class Action was also certified as a class proceeding on consent.
C. Retainer Agreements and the Consortium Agreement
[36] In 2019, class counsel for the Moushoom Class Action (Sotos LLP, Kugler Kandestin LLP and Miller Titerle + Company) entered into contingency fee retainer agreements with the Moushoom Class Action Plaintiffs and in 2020, the same counsel entered into a contingency fee retainer agreement with Mr. Trout in relation to the Trout Class Action. The contingency fee retainer agreements contained the following standard percentages fees:
(a) For any Aggregate Amount Recovered for the Class: twenty percent (20%) of the first two hundred million dollars of the Aggregate Amount Recovered, plus ten percent (10%) of any Aggregate Amount Recovered beyond the first two hundred million dollars (the percentages in this subparagraph shall not apply to any Individual Inquiry Recovery); plus
(b) For any Individual Inquiry Recovery for individual Class members: twenty five percent (25%) of any such amounts; plus
(c) Any amount of costs ordered by the Court in favour of the Client or the Class.
[37] Class counsel for the AFN Class Action (Nahwegahbow, Corbiere and Fasken Martineau DuMoulin LLP, as well as Strosberg Sasso Sutts LLP for a period of time) had similar percentage-based contingency fee retainer agreements with their clients that contained the following standard percentage fees, but included a cap:
(a) TEN PERCENT (10%) of any Recovery achieved prior to the commencement of the trial, subject to a cap of $80 million; and thereafter,
(b) FIFTEEN PERCENT (15%) when the common issues trial begins, subject to a cap of $100 million.
[38] On June 26, 2020, Class Counsel in the Moushoom Class Action and AFN Class Action executed a consortium agreement [Consortium Agreement], under which they agreed to work together to prosecute the class actions. The Consortium Agreement was executed by each of the five law firms comprising Class Counsel and not by any of the representative plaintiffs.
[39] The stated objectives of the Consortium Agreement are as follows:
The Parties agree to work together to advance the Case for the collective benefit of their respective clients and the members of the Class, whether through litigation or through a negotiated settlement.
The Parties shall seek, as a consequence of the Case, compensation for all members of the Class, as well as permanent, systemic changes that address the historical discrimination against First Nations children and improve Indigenous child welfare in Canada.
[40] Under the heading of “Fees”, the Consortium Agreement provided, in part, as follows:
17. The Parties shall seek the following fees (“Fees”), subject to Court approval:
(a) Ten percent (10%) of any payment received by the Class by way of settlement or judgment (“Proceeds”) obtained prior to the commencement of a common issues trial, subject to a cap of $80 million; and thereafter,
(b) Fifteen percent (15%) of any payment obtained after the commencement of a common issues trial but prior to judgment or settlement, subject to a cap of $100 million; and thereafter,
(c) Twenty percent (20%) of any payment obtained after the completion of a common issues trial in first instance, subject to a cap of $120 million.
(d) The above amounts are exclusive of applicable taxes.
18. The Parties may, by agreement, seek a lower amount where doing so would be reasonable, appropriate and consistent with the principles stated in this Agreement.
[41] The inclusion of a fee cap was a term required by the AFN and ultimately agreed to by Class Counsel.
D. Events Following the Commencement of the Class Actions and Leading to the Global Settlement
[42] The Compensation Decision was released by the Tribunal on September 6, 2019. Pursuant to that decision, compensation of $40,000.00 plus interest was to be paid to First Nations children removed from their families, homes and communities, and to children delayed, denied or suffering a gap in essential services from 2006 forward, as well as their caregiving parents and grandparents.
[43] Approximately two months later, on December 5, 2019, the federal Government committed in its Speech from the Throne that it would “ensure that Indigenous people who were harmed under the discriminatory child welfare system are compensated in a way that is both fair and timely”.
[44] Following the issuance of the AFN Class Action on January 28, 2020, the class action proceedings did not move forward for a number of months, during which time the Consortium Agreement was executed.
[45] In July of 2020, Canada proposed to Class Counsel in the Consolidated Action that the parties agree to enter mediation. Discussions regarding a possible mediation were held in July and August. In late August, the parties agreed to seek the appointment of the Honourable Justice Leonard Mandamin as mediator.
[46] From November 2020 to September 2021, the parties in the Consolidated Action engaged in mediation before Justice Mandamin. However, during this time, Canada refused to engage in negotiations regarding the Trout Class Action. The parties were unable to reach an agreement and Class Counsel sought to advance the litigation.
[47] In September of 2021, following this Court’s dismissal of the judicial review of the Compensation Decision, Canada proposed continued negotiations towards a comprehensive resolution of both the class actions and the Tribunal proceedings. Subsequently, the parties to the Consolidated Action agreed to enter into further negotiations facilitated by the Honourable Murray Sinclair. Toward the end of these negotiations, Canada agreed to include the Trout Class Action in the discussions.
[48] On October 29, 2021, the Honourable Patty Hajdu, Minister of Indigenous Services, the Honourable Marc Miller, former Minister of Crown-Indigenous Relations and the Honourable David Lametti, former Minister of Justice and Attorney General of Canada, issued the following public statement:
We have been unequivocal from the start: we will compensate those harmed by child and family services policies in order to mend past wrongs and lay the foundation for a more equitable and stronger future for First Nations children, their families and communities.
Today, the Government of Canada and the Parties, the First Nations Child and Family Caring Society and Assembly of First Nations, are announcing that we have agreed to sit down immediately and work towards reaching a global resolution by December 2021 on outstanding issues that have been the subject of litigation. This will include:
providing fair, equitable compensation to First Nations children on-reserve and in the Yukon who were removed from their homes by child and family services agencies, as well as those who were impacted by the government’s narrow definition of Jordan’s Principle,
achieving long-term reform of the First Nations Child and Family Service program, and
funding for the purchase and/or construction of capital assets that support the delivery of child and family services on-reserve and Jordan’s Principle.
As we work to ensure that those who have been harmed are fairly compensated, we are also committing to significant investments to address long-term reform of the First Nations Child and Family Services and will work with the parties to put in place an approach that best serves these children. We will also continue this work through the ongoing implementation of An Act Respecting First Nations, Inuit and Métis Children, Youth and Families, which affirms and recognizes their jurisdiction over child and family services.
In order to allow the Parties time to have meaningful discussions and to reach a lasting agreement, Canada, the First Nations Child and Family Caring Society and Assembly of First Nations have agreed to pause litigation on the Canadian Human Rights Tribunal decision. Providing the space to reach agreement on compensation and funding for future reforms will help us reach the best outcome. This means that while Canada filed what is known as a protective appeal of the Federal Court decision of September 29, 2021, the appeal will be on hold and the focus will be squarely on reaching an agreement outside of court and at the table…
[Emphasis added.]
[49] In the November 23, 2021 Speech from the Throne, this commitment was reiterated:
The Government will also make sure communities have the support they need to keep families together, while ensuring fair and equitable compensation for those harmed by the First Nations Child and Family Services program”.
[50] On December 13, 2021, Minister Hajdu and then-Minister Miller made a further public statement committing to compensating those harmed:
We have been unequivocal throughout these historic negotiations: we will compensate those harmed by the federal government’s discriminatory funding practices and we will lay the foundation for an equitable and better future for First Nations children, their families and communities”.
[51] The December 16, 2021 mandate letter sent by the Prime Minister to the Minister of Indigenous Services Canada [ISC] directed ISC to:
continue to work with First Nations partners to ensure fair and equitable compensation for those harmed by the First Nations Child and Family Services program and to ensure the long-term reform of child and family services in First Nations communities, including to help children and families stay together and providing First Nations youth who reach the age of majority the supports they need for up to two additional years.
[52] On December 31, 2021, the Plaintiffs and Canada reached an agreement in principle, which set out the principal terms of their agreement to settle all of the class actions. Canada made agreement on compensation conditional on the Tribunal parties concurrently reaching an agreement on long-term reform of the federal First Nations child and family services system. A separate agreement in principle was concluded on long-term reform, which is not before the Court on this motion.
[53] After several months of negotiations, the parties executed a final settlement agreement dated June 30, 2022 [First Agreement], which provided for a total settlement amount, excluding legal and administrative fees, of $20 billion. The First Agreement was conditional on the Tribunal confirming that the First Agreement satisfied the Compensation Decision and related compensation orders.
[54] On July 22, 2022, the AFN and Canada brought a joint motion to the Tribunal for confirmation that the First Agreement satisfied the Compensation Decision and related compensation orders. The Caring Society and the Commission opposed the joint motion.
[55] On October 24, 2022, the Tribunal issued a letter decision dismissing the joint motion, with full reasons following on December 20, 2022. In its full reasons, the Tribunal found that, while the First Agreement substantially satisfied the Tribunal’s Compensation Decision and related compensation orders, it did not fully satisfy them in four material respects:
First Nation children ordinarily living on a reserve who were voluntarily sent by their caregivers to stay with non-family off-reserve (the parties have named this group “Kith”) were entitled to compensation.
The estates of deceased parents and grandparents of affected children were entitled to compensation.
While affected children were limited to the Tribunal’s damages cap of $40,000.00, certain parents and grandparents who had more than one child affected were entitled to that amount for each child—meaning that if, for example, a father had four children removed from his care, he should be entitled to $160,000.00.
The Tribunal needed more certainty and clarity on the parties’ approach to Jordan’s Principle and a longer opt-out period.
[56] On November 23, 2022, the Honourable Patty Hajdu, Marc Miller and David Lametti, issued the following statement:
Canada will ensure fair and equitable compensation to First Nations children and families harmed by the discriminatory underfunding of the First Nations Child and Family Services program and those impacted by the federal government’s narrow definition of Jordan’s Principle.
To that end, we will work with the Parties under the existing final settlement agreement, so that compensation can flow to children and families.
[57] After further rounds of negotiation between January and April 2023, the parties and the Caring Society reached an updated agreement on April 19, 2023, which was later amended by way of an addendum dated October 10, 2023 [collectively, the Final Settlement Agreement]. The Final Settlement Agreement addressed the four issues raised by the Tribunal and added $3.34 billion (for a total of $23.34 billion) in compensation to cover the additional requirements.
[58] On June 30, 2023, the AFN and Canada brought a fresh joint motion before the Tribunal for an order that the Final Settlement Agreement satisfied the Compensation Decision and related compensation orders, which order was granted.
E. The Final Settlement Agreement
[59] Under the terms of the Final Settlement Agreement, Canada will pay $23,343,940,000 to settle the claims of the Class in the Consolidated Action and the Trout Class Action and to satisfy the Tribunal’s Compensation Decision, which the parties advise is the largest class action settlement in Canadian history.
[60] The Final Settlement Agreement provides for nine classes with a combined estimated membership total of over 300,000 individuals, with the following simplified definitions:
“Removed Child Class” means all First Nations individuals who (i) while under the age of majority, and (ii) while they, or at least one of their caregivers were ordinarily resident on reserve or living in the Yukon, (iii) were removed from their home by child welfare authorities or voluntarily placed into care between April 1, 1991 and March 31, 2022, and (iv) whose placement was funded by ISC.
“Removed Child Family Class” means all brothers, sisters, mothers, fathers, grandmothers and grandfathers of a member of the Removed Child Class at the time of removal.
“Essential Service Class” means all First Nations individuals who, between December 12, 2007 and November 2, 2017, did not receive from Canada an essential service (whether by denial or service gap) relating to a confirmed need, or whose receipt of an essential service relating to a confirmed need was delayed by Canada on grounds including a lack of funding or jurisdiction, or as a result of a service gap or jurisdictional dispute.
“Jordan’s Principle Class” means all members of the Essential Service Class who experienced the highest level of impact (including pain, suffering or harm of the worst kind).
“Jordan’s Principle Family Class” means all brothers, sisters, mothers, fathers, grandmothers or grandfathers of a member of the Jordan’s Principle Class at the time of the delay, denial or service gap.
“Trout Child Class” means all First Nations individuals who, between April 1, 1991 and December 11, 2007, did not receive from Canada an essential service (whether by denial or service gap) relating to a confirmed need, or whose receipt of an essential service relating to a confirmed need was delayed by Canada on grounds such as a lack of funding or jurisdiction, or a result of a service gap or jurisdictional dispute.
“Trout Family Class” means the brothers, sisters, mothers, fathers, grandmothers or grandfathers of a member of the Trout Child Class at the time of the delay, denial or service gap.
“Kith Child Class” means First Nations Children placed with an unpaid non-family caregiver off-reserve during the Removed Child Class Period at a time when a child welfare authority was involved in the First Nations Child’s case.
“Kith Family Class” means the caregiving parents or, in the absence of caregiving parents, the caregiving grandparents of an Approved Kith Child Class Member who was in a placement between January 1, 2006 and March 31, 2022.
[61] The Final Settlement Agreement sets out the criteria for entitlement to a payout for each Class and the principles for determining the amount that each Class Member may receive. In general, the Final Settlement Agreement contemplates payment of a base compensation amount, plus the possibility of an enhanced payment for those individuals that were most impacted by Canada’s discriminatory conduct.
[62] Removed Child Class Members will receive a base compensation of $40,000.00, together with interest, a time value enhancement (to create parity amongst Removed Child Class Members accessing payouts over the course of a claims process expected to last 20 years) and a possible enhancement payment. The Plaintiffs and experts have identified objective factors that aggravated the harm suffered so as to entitle a Class Member to an enhanced payment, including the age at which they were removed for the first time, the total number of years spent in care, the age at which they exited the child welfare system, whether they were removed to receive an essential service relating to a confirmed need, whether they were removed from a northern or remote community and the number of spells in care or the number of out-of-home placements applicable to a Removed Child Class Member who spent more than one year in care. Based on Class Counsel’s initial approach to the calculation of enhancement payments (which is subject to further consultation with experts and approval of the Settlement Implementation Committee), Removed Child Class Members who meet the criteria for multiple enhancement factors may receive total payouts of approximately $230,000.00.
[63] A budget of $7.25 billion has been allocated to the Removed Child Class, based on a class size estimate of 116,000, which was arrived at with the assistance of experts.
[64] Removed Child Family Class Members will receive a base compensation of $40,000.00 (in some cases, multiplied by the number of affected children) with no enhancement payment available. Compensation is available for up to two caregiving parents or grandparents per child, with conflicts among purported caregivers to be resolved based on a pre-defined priority list. Caregivers who have committed sexual or serious physical abuse related to the Removed Child Class Member’s removal are not eligible for compensation in relation to that child. A budget of $5.75 billion has been allocated to the Removed Child Family Class, with a further budget of $997 million for any multiplication of the base compensation.
[65] Members of the Essential Service Class, Jordan’s Principle Class and Trout Child Class will be eligible for compensation if they had a confirmed need for an essential service and (i) they requested the essential service and it was denied; (ii) they requested an essential service and faced an unreasonable delay; or (iii) there was a service gap such that the essential service was not available, even if the essential service was not requested. Claimants will be required to provide supporting documentation that the essential service was recommended by a professional at the relevant time.
[66] The Final Settlement Agreement is structured so that those who suffered greater harms (Jordan’s Principle Class) receive at least $40,000.00, whereas those who suffered lesser harms (Essential Service Class) receive at most $40,000.00. Funds will be distributed first to those who suffered greater harms, with the balance to be distributed pro rata to those who suffered lesser harms. A budget of $3 billion has been allocated to the Essential Service Class and Jordan’s Principle Class, based on an estimate of 65,000 Jordan’s Principle Class Members arrived at with the assistance of experts.
[67] Compensation for the Trout Child Class Members will be made using the same guiding principle, with those who suffered greater harms receiving at least $20,000.00 and those who suffered lesser harms receiving at most $20,000.00. The compensation differential between the Trout Child Class Members and the Essential Service and Jordan’s Principle Class Members is rooted in the heightened litigation risk for the Trout Class Action, which advanced novel essential service claims, had no overlap with the Tribunal’s Compensation Decision and pre-dated Jordan’s Principle. A budget of $2 billion has been allocated to the Trout Child Class, based on an estimate of 104,000 Trout Child Class Members arrived at with the assistance of experts.
[68] Only caregiving parents or grandparents of an approved Jordan’s Principle Class Member may be entitled to compensation if they themselves suffered the highest level of impact, in which case they will receive a base compensation of $40,000.00, assessed using objective factors developed in consultation with experts. Similarly, only caregiving parents or grandparents of an approved Trout Class Member may be entitled to compensation if they themselves suffered the highest level of impact, although no set amount of compensation is prescribed in the agreement. Rather, the amount of compensation will be determined by the Settlement Implementation Committee with the assistance of an actuary. All other Jordan’s Principle Family Class Members and Trout Family Class Members will not receive direct compensation, but are intended to benefit from the cy-près fund (addressed below). A budget of $2 billion has been allocated to the Jordan’s Principle Family Class and the Trout Family Class.
[69] The base compensation entitlement of an approved Kith Child Class Member will be $40,000.00, with no available enhancement payments. Compensation entitlement for the Kith Child Family Class Members follows a similar method to that applicable to certain Removed Child Family Class Members (with some nuances) and provides a base compensation of $40,000.00. A budget of $600 million has been allocated to the Kith Child Class (based on an estimated class size of 15,000) and a budget of $702 million has been allocated to the Kith Family Class (based on an estimated class size of 17,550).
[70] With respect to Class Counsel fees, Class Counsel and Canada agreed that counsel fees would not be deducted from amounts recovered for the Class, even though Class Counsels’ original retainer agreements and the Consortium Agreement permitted this. Article 17.01 of the Final Settlement Agreement provides:
Canada will pay Class Counsel the amount approved by the Court, plus applicable taxes, in respect of their legal fees and disbursements for the prosecution of the Actions to the date of the Settlement Approval Hearing, together with advice to Class Members regarding the Agreement and Acceptance, over and above the Settlement Funds…
[71] The Final Settlement Agreement also establishes a First Nations-led cy-près fund endowed with:
$50 million for supports to Class Member