Heyder v. Canada (Attorney General)

Heyder v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2019-11-25
Neutral citation
2019 FC 1477
File numbers
T-2111-16, T-460-17
Notes
Decision Content
Date: 20191125
Dockets: T-2111-16
T-460-17
Citation: 2019 FC 1477
Docket: T-2111-16
BETWEEN:
SHERRY HEYDER,
AMY GRAHAM AND
NADINE SCHULTZ-NIELSEN
Plaintiffs
and
THE ATTORNEY GENERAL OF CANADA
Defendant
Docket: T-460-17
AND BETWEEN:
LARRY BEATTIE
Plaintiff
and
THE ATTORNEY GENERAL OF CANADA
Defendant
REASONS FOR ORDERS
FOTHERGILL J.
Table of Contents
I. Overview 3
II. Background 7
III. Issues 11
IV. Analysis 12
A. Should the proposed class proceedings be certified? 12
(1) Reasonable causes of action 14
(2) Identifiable classes 15
(3) Common issues 16
(4) Preferable procedure 17
(5) Representative plaintiffs 18
(6) Conclusion on certification 19
B. Should the Settlement Agreement be approved? 19
(1) Overview of the Settlement Agreement 19
(2) General principles of settlement approval 29
(3) Considerations favouring settlement approval 32
(4) Objections to settlement approval 38
(5) Conclusion on settlement approval 47
C. Should the payment of honoraria to the representative Plaintiffs be approved? 48
D. Should the fees and disbursements of class counsel be approved? 48
(1) Risk, complexity, skill of counsel, and results achieved 51
(2) Expectations of the Plaintiffs 53
(3) Time expended 54
(4) Fees in similar cases 56
(5) Conclusion on legal fees 57
V. Order 57
I.
Overview
[1] The Plaintiffs have brought motions for an order: (a) consolidating these actions for settlement purposes; (b) certifying these actions as class proceedings for settlement purposes; (c) approving the Final Settlement Agreement [Settlement Agreement] between the parties; (d) approving notice of the Settlement Agreement and notice of the opt out and claims periods; and (e) addressing other ancillary matters.
[2] These proposed class proceedings were commenced following the External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces by former Supreme Court of Canada Justice Marie Deschamps. One of the key findings of the External Review was that:
[…] there is an underlying sexualized culture in the [Canadian Armed Forces] that is hostile to women and LGTBQ members, and conducive to more serious incidents of sexual harassment and assault. Cultural change is therefore key. It is not enough to simply revise policies or to repeat the mantra of “zero tolerance”. Leaders must acknowledge that sexual misconduct is a real and serious problem for the organization, one that requires their own direct and sustained attention.
[3] The proceedings and Settlement Agreement encompass two classes consisting of women and men who experienced sexual misconduct while serving in the Canadian Armed Forces [CAF], the Department of National Defence [DND], and as Staff of the Non-Public Funds, Canadian Forces [SNPF]. The first class includes current and former CAF members [CAF Class], and the second includes both current and former DND and SNPF employees [DND/SNPF Class]. I will refer to members of both classes as Class Members.
[4] Six overlapping class proceedings were commenced in late 2016 and early 2017 in different jurisdictions throughout Canada. In September 2017, the Plaintiffs in these proceedings entered into a consortium agreement with the Plaintiffs in the four other related class actions [Consortium Agreement]. The four other actions subject to the Consortium Agreement are: Graham et al v Attorney General of Canada (Court File No 13-80853-CP) commenced in the Ontario Superior Court of Justice; Rogers v The Attorney General of Canada (Court File No 457658) commenced in the Supreme Court of Nova Scotia; Alexandre Tessier c Procureur General du Canada (Court File No 200-06-000209-174) commenced in the Superior Court of Quebec; and Peffers v The Attorney General of Canada (Court File No S165018) commenced in the Supreme Court of British Columbia [collectively, the Provincial Actions].
[5] The parties to the Consortium Agreement agreed that the proceedings in this Court would be pursued on behalf of national classes and the Provincial Actions would be held in abeyance.
[6] The Settlement Agreement provides financial compensation in an aggregate amount of up to $900 million through an efficient and non-adversarial claims process. The Settlement Agreement also contemplates numerous systemic changes and programs, specifically:
(a) a restorative engagement program to give interested Class Members an opportunity to communicate their experiences of sexual misconduct in the workplace to senior CAF or DND representatives, with the intention of restoring the relationship between Class Members and the military, and promoting culture change;
(b) a five-year external review to assess the progress made by the CAF in addressing sexual misconduct, policy effectiveness, sexual misconduct-related procedures and programs, and to provide objective, fair, and results-based recommendations and practical advice to the Chief of Defence Staff and Deputy Minister of Defence;
(c) amending the definition of “harassment” in the Defence Administrative Order and Directive 5012-0—the overarching order that applies to all CAF members and DND employees regarding harassment—with the intention of modernizing the CAF’s approach to sexual misconduct;
(d) consultations with Class Members and subject matter experts concerning the CAF’s plans to enhance its recourse and support programs for those who have experienced sexual misconduct;
(e) consultations with Class Members and subject matter experts about increasing gender representation and diversity in the CAF;
(f) operational changes to Veterans Affairs Canada [VAC], in particular:
establishing a dedicated unit to receive and process applications for VAC disability benefits from those seeking compensation under Category “C” of the settlement compensation scheme, explained below;
updated VAC policies governing eligibility for VAC disability benefits to clarify the revised approach to be taken when adjudicating applications involving claims of sexual assault and harassment;
provision of notice to Class Members of updates to VAC policies;
updated VAC policies in relation to review and reconsideration, as well as feedback to VAC on claims arising from sexual assault and sexual harassment; and
continued support training for VAC decision-makers.
[7] The certification and settlement approval motions took place in Ottawa on September 19 and 20, and October 3, 2019. The Court heard from approximately 50 Class Members, the vast majority of whom spoke in favour of the Settlement Agreement.
[8] The named Plaintiffs in the proposed class proceedings say that the Settlement Agreement, including both its monetary and non-monetary aspects, is fair, reasonable, and in the best interests of the class. The Attorney General agrees that the Settlement Agreement should be approved.
[9] For the reasons that follow, the proposed proceedings are certified as class actions, and the Settlement Agreement, including the fees and disbursements payable to class counsel, is approved.
II. Background
[10] The motions to certify the proposed class proceedings were served on May 12, 2017. On May 30, 2017, the Court set a timetable for completion of the steps leading to the motions for certification, and scheduled the motions for July 2018.
[11] The Attorney General served its responding Motion Records in December 2017. The Attorney General also moved to strike the proposed class proceedings.
[12] The Plaintiffs delivered their Reply Motion Records in February 2018. Cross- examinations on affidavits were scheduled to take place between February 9 and March 28, 2018.
[13] In early February 2018, reports appeared in the media of the Attorney General’s motions to strike the proposed class proceedings. Criticism focused on the Attorney General’s denial of a private law duty of care owed to members of the CAF and DND to provide a safe and harassment-free environment for military personnel, or to create policies to prevent sexual harassment or sexual assault. The Prime Minister of Canada was reported to say that these arguments did not align with his beliefs, or those of his government, and he had directed his Attorney General to intervene personally.
[14] Shortly after the Prime Minister’s public comments, the Attorney General proposed to the Plaintiffs that the cross-examinations on affidavits be postponed to permit preliminary discussions regarding the possibility of a negotiated resolution. The Attorney General also withdrew the motions to strike.
[15] On March 1, 2018, at the parties’ request, the Court ordered a revised timetable and scheduled the certification motions for February 25 to March 1, 2019.
[16] Between April 2018 and March 2019, counsel for the parties participated in more than 30 meetings and conference calls to discuss the possibility of settlement. The topics of discussion included:
(a) existing CAF and DND initiatives to address sexual misconduct, such as Operation Honour, the Sexual Misconduct Response Centre, the integrated harassment process, and the military justice system;
(b) the definition of the classes;
(c) estimates of the classes’ population size and incidence rates, including actuarial analysis;
(d) policy measures that could benefit Class Members, including reform of VAC policies, revisions to the CAF harassment policy, and improvements in gender representation and support measures;
(e) a restorative engagement program;
(f) a comprehensive external review to take place five years after the settlement;
(g) compensation to Class Members, eligibility for compensation, and the establishment of compensation thresholds;
(h) an aggregate cap and structure for making the funds available for individual compensation;
(i) VAC compensation and benefits under the Pension Act, RSC, 1985, c P-6 and Veterans Well-being Act, SC 2005, c 21 [VWA], and their availability to Class Members, as well as reconsideration of previous VAC decisions;
(j) the structure of a settlement;
(k) legal issues, including the pension bar found in s 9 of the Crown Liability and Proceedings Act, RSC, 1985, c C-50 [CLPA], limitations, and causation;
(l) claims advanced on behalf of estates of Class Members;
(m) the claims process and verification;
(n) funding for awareness and culture change initiatives; and
(o) notice, notice publication, assessment of claims, and administration of the settlement.
[17] The parties retained the Honourable George W. Adams as mediator. A mediation was conducted over five days in August and September 2018. Settlement discussions continued after the mediation, but no agreement was reached.
[18] The parties decided to proceed with the cross-examinations on the affidavits filed in the certification motions. The first cross-examination was scheduled to begin on March 1, 2019, but was abruptly halted when the Attorney General asked to resume settlement discussions.
[19] On March 15, 2019, the parties reached an Agreement in Principle [AIP]. The Court was advised of this development on April 3, 2019, and was asked to maintain the confidentiality of the AIP, pending motions to approve the form of notice of the proposed settlement to members of the class.
[20] Following the AIP’s conclusion, counsel for the parties participated in more than 15 additional meetings and conference calls, and exchanged extensive correspondence, to refine the details of the topics previously discussed and negotiated, together with a number of additional matters. In particular:
(a) the inclusion of civilian DND and SNPF employees in the settlement, and related questions of jurisdiction, class size estimates, incidence rates, and union support;
(b) administration of the individual compensation process;
(c) verification of individual claims;
(d) terms of the release to be provided by the classes;
(e) notice and administration;
(f) policy measures to benefit Class Members; and
(g) the dispute resolution process.
[21] The parties concluded the Settlement Agreement on July 10, 2019. Motions to approve the form of notice of the Settlement Agreement to be provided to Class Members were heard on July 17, 2019, and granted the following day (Heyder v Canada (Attorney General), 2019 FC 956).
[22] Notice was provided to the proposed classes in accordance with the plan approved by the Court. The deadline for filing objections was August 30, 2019. A compilation of all objections was submitted to the Court in advance of the settlement approval motions that were heard in September and October 2019.
III. Issues
[23] The relief sought is uncontentious insofar as it relates to consolidation, notice of the Settlement Agreement, notice of the opt out and claims periods, and ancillary matters. The issues addressed in these Reasons for Order are as follows:
Should the proposed class proceedings be certified?
Should the Settlement Agreement be approved?
Should the payment of honoraria to the representative Plaintiffs be approved?
Should the fees and disbursements of class counsel be approved?
IV. Analysis
A. Should the proposed class proceedings be certified?
[24] Where the parties have negotiated a settlement agreement in a proposed class action and jointly move to have the action certified and the agreement approved on consent, the threshold for certification is lower and the Court may apply a less rigorous approach (Buote Estate v Canada, 2014 FC 773 [Buote] at para 8; and Merlo v Canada, 2017 FC 51 [Merlo] at para 10).
[25] The focus of the analysis at the certification stage is not on the merits of the claims, but rather on whether the claims may appropriately be advanced as a class action. The criteria for certifying a class action are found in Rule 334.16(1) of the Federal Courts Rules, SOR/98-106 [Rules]:
334.16 (1) Subject to subsection (3), a judge shall, by order, certify a proceeding as a class proceeding if
(a) the pleadings disclose a reasonable cause of action;
(b) there is an identifiable class of two or more persons;
(c) the claims of the class members raise common questions of law or fact, whether or not those common questions predominate over questions affecting only individual members;
(d) a class proceeding is the preferable procedure for the just and efficient resolution of the common questions of law or fact; and
(e) there is a representative plaintiff or applicant who
(i) would fairly and adequately represent the interests of the class,
(ii) has prepared a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members as to how the proceeding is progressing,
(iii) does not have, on the common questions of law or fact, an interest that is in conflict with the interests of other class members, and
(iv) provides a summary of any agreements respecting fees and disbursements between the representative plaintiff or applicant and the solicitor of record.
334.16 (1) Sous réserve du paragraphe (3), le juge autorise une instance comme recours collectif si les conditions suivantes sont réunies :
a) les actes de procédure révèlent une cause d’action valable;
b) il existe un groupe identifiable formé d’au moins deux personnes;
c) les réclamations des membres du groupe soulèvent des points de droit ou de fait communs, que ceux-ci prédominent ou non sur ceux qui ne concernent qu’un membre;
d) le recours collectif est le meilleur moyen de régler, de façon juste et efficace, les points de droit ou de fait communs;
e) il existe un représentant demandeur qui :
(i) représenterait de façon équitable et adéquate les intérêts du groupe,
(ii) a élaboré un plan qui propose une méthode efficace pour poursuivre l’instance au nom du groupe et tenir les membres du groupe informés de son déroulement,
(iii) n’a pas de conflit d’intérêts avec d’autres membres du groupe en ce qui concerne les points de droit ou de fait communs,
(iv) communique un sommaire des conventions relatives aux honoraires et débours qui sont intervenues entre lui et l’avocat inscrit au dossier.
(1) Reasonable causes of action
[26] In determining whether a proposed class proceeding discloses reasonable causes of action, the Court assumes that the facts outlined in the statements of claim are true or capable of proof. For the purposes of this certification, the representative Plaintiffs rely only on the asserted claims of negligence, breach of fiduciary duty, and breach of ss 7 and 15 of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
[27] The Plaintiffs allege that the Crown negligently permitted an environment conducive to sexual assault, sexual harassment, and discrimination based on gender and sexual orientation, causing Class Members to suffer physical and psychological harm. A successful action in negligence requires a plaintiff to satisfy the following elements: (a) the defendant owed the plaintiff a duty of care; (b) the defendant’s behaviour breached the standard of care; (c) the plaintiff sustained damage; and (d) the damage was caused, in fact and in law, by the defendant’s breach (Mustapha v Culligan of Canada Ltd, 2008 SCC 27 at para 3). The material facts in support of each of these elements are sufficiently pleaded in the Statements of Claim.
[28] The Plaintiffs also allege that the acts and omissions of the Crown constituted a breach of its fiduciary duty to Class Members. A successful action in breach of fiduciary duty requires a plaintiff to satisfy the following elements: (a) the fiduciary has scope for the exercise of some discretion or power; (b) the fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests; and (c) the beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power (Alberta v Elder Advocates of Alberta Society, 2011 SCC 24 at para 27). The material facts in support of each of these elements are sufficiently pleaded in the Statements of Claim.
[29] In addition, the Plaintiffs allege that the acts and omissions of the Crown breached the Charter rights of Class Members. Section 7 of the Charter states that “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Subsection 15(1) of the Charter states that “[e]very individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” The Plaintiffs say that the breach of the Class Members’ Charter rights is not “prescribed by law”, and cannot be justified under s 1 of the Charter. The material facts in support of each of these allegations are sufficiently pleaded in the Statements of Claim.
(2) Identifiable classes
[30] The class description must provide a clear definition of those who may be entitled to relief as part of the class, and objective criteria to identify possible members of the class. Class members need not have identical claims, and it is unnecessary at the certification stage to be satisfied that each class member would succeed in establishing a claim.
[31] The Plaintiffs propose that the classes be defined as follows:
CAF Class: All current or former CAF Members who experienced Sexual Misconduct up to and including the Approval Date, who have not Opted Out of the Heyder or Beattie Class Actions.
DND/SNPF Class: All current and former employees of DND and of the Staff of the Non-Public Funds, Canadian Forces, who experienced Sexual Misconduct up to and including the Approval Date, who have not Opted Out of the Heyder or Beattie Class Actions.
[32] These classes are clearly identifiable based on objective criteria, and meet the requirement of Rule 334.16(1)(b).
(3) Common issues
[33] The common question must be a “substantial ingredient” of each class member’s claim. It allows the claim to proceed as a representative one and avoids duplication of fact-finding or legal analysis. The common questions requirement constitutes a low bar (Vivendi Canada Inc v Dell’Aniello, 2014 SCC 1 at para 72). The Court should adopt a purposive approach in assessing common issues. Class members need not be identically situated vis-a-vis the defendant, nor is it necessary that the common issues predominate over non-common issues (Pro-Sys Consultants Ltd v Microsoft Corporation, 2013 SCC 57 at para 108).
[34] The parties propose a simple common question: is the Defendant liable to the Class Members? They note that the same common issue was certified on consent in advance of settlement approval in Merlo (at paras 23-26), a class proceeding seeking damages on behalf of women in the Royal Canadian Mounted Police for sexual harassment and sexual assault.
[35] The question of the Defendant’s liability is common to each Class Member with a claim arising from her or his treatment while working within the CAF, DND, or SNPF. This common question underlies each Class Member’s claim. The answer to the question will avoid duplication of fact-finding and legal analysis, and meets the requirement of Rule 334.16(1)(c).
(4) Preferable procedure
[36] The question of whether a class action is the preferable procedure requires the Court to consider the principal goals of class proceedings, as described by Chief Justice Beverly McLachlin in Hollick v Toronto (City), 2001 SCC 68:
[15] First, by aggregating similar individual actions, class actions serve judicial economy by avoiding unnecessary duplication in fact-finding and legal analysis. Second, by distributing fixed litigation costs amongst a large number of class members, class actions improve access to justice by making economical the prosecution of claims that any one class member would find too costly to prosecute on his or her own. Third, class actions serve efficiency and justice by ensuring that actual and potential wrongdoers modify their behaviour to take full account of the harm they are causing, or might cause, to the public.
[37] Litigation of claims such as the ones raised in these proceedings is complex and expensive. Distributing the litigation costs across the classes may be the only mechanism for Class Members to achieve access to justice. A class proceeding also promotes judicial economy, avoids inconsistent findings on common issues, and promotes behaviour modification. These factors weigh strongly in favour of certification.
[38] Furthermore, certification of these proceedings is intended to implement a national settlement. It is a necessary precondition to resolving the claims in accordance with the Settlement Agreement.
(5) Representative plaintiffs
[39] The proposed representative Plaintiffs, Ms. Heyder, Ms. Schultz-Nielsen, Ms. Graham, and Mr. Beattie, fairly and adequately represent the Class Members’ interests. They each provided evidence of sexual harassment or sexual assault that they personally experienced while serving in the CAF. They each swore affidavits confirming their willingness and availability to act in the best interests of the respective class. There is nothing to indicate that they have a conflict of interest on the common questions of law or fact with other Class Members, and they have provided details of their agreements with class counsel respecting fees and disbursements.
[40] The parties have jointly prepared a detailed and robust plan that outlines the steps whereby Class Members will be notified of the certification and proposed settlement of these actions. The notice plan contains all of the elements of the plan previously approved by the Court to provide notice of the certification and settlement approval hearing. In addition, the plan provides for insertions in newspapers and the inclusion of the notice in widely-circulated magazines such as Maclean’s, L’actualité, and Chatelaine (English and French), and 2,400 radio spots on 24 radio stations across Canada.
(6) Conclusion on certification
[41] All of the requirements of Rule 334.16(1) are met. The proposed class proceedings should therefore be certified.
B. Should the Settlement Agreement be approved?
(1) Overview of the Settlement Agreement
[42] The Settlement Agreement provides for the following:
(a) combined aggregate individual compensation for CAF Class members and DND/SNPF Class members who experienced sexual misconduct in a total amount not exceeding $900 million, with the range of individual compensation for most Class Members between $5,000 and $50,000. Some Class Members who experienced exceptional harm such as post-traumatic stress disorder [PTSD] may be eligible for up to an additional $100,000;
(b) a claims process that is paper-based, non-adversarial, and intended to be restorative in nature, to the extent possible;
(c) the option of participating in a restorative engagement program for Class Members to share their experiences of sexual misconduct with senior CAF or DND representatives;
(d) changes to policies and other measures addressing sexual misconduct in the CAF, including consultation regarding increasing gender representation and diversity in the CAF, and enhancing resources and support programs for those who have experienced sexual misconduct;
(e) a comprehensive external review to assess the progress of Operation Honour and the Sexual Misconduct Response Centre, five years after the settlement is approved;
(f) improvements to VAC policies concerning eligibility for disability payments, and reconsideration of claims by a dedicated unit of employees established for this purpose;
(g) a comprehensive release of Canada from all proceedings, actions, and claims based on the matters asserted, or which could have been asserted, in relation to any aspect of the class actions;
(h) a written request by the Defendant to Employment and Social Development Canada and the Canada Revenue Agency that Class Members’ entitlement to federal social benefits or social assistance not be negatively affected; and
(i) a written request by the Defendant to provincial and territorial governments that receipt of compensation under the Settlement Agreement not affect the receipt of social benefits.
[43] The Settlement Agreement encompasses two classes. As previously mentioned, the CAF Class is defined as follows:
All current or former CAF Members who experienced Sexual Misconduct up to and including the Approval Date, who have not Opted Out of the Heyder or Beattie Class Actions.
[44] The DND/SNPF Class is defined as follows:
All current and former employees of DND and of the Staff of the Non-Public Funds, Canadian Forces, who experienced Sexual Misconduct up to and including the Approval Date, who have not Opted Out of the Heyder or Beattie Class Actions.
[45] Compensation will be available for all Class Members who were alive on March 15, 2019, the date the AIP was signed, and who meet the eligibility criteria under the Settlement Agreement. The Settlement Agreement provides that eligible Class Members may receive compensation under Category A, Category B1 or B2, and Category C, provided they meet the criteria for each category:
Category
Compensation Amount/ Harm Level
A. Sexual harassment, gender based or LGBTQ2+ based discrimination.
$5,000.00
B1. Targeted or ongoing or severe sexual harassment and/or sexual assault in the form of unwanted sexual touching.
Low Harm
$5,000.00
Medium Harm
$10,000.00
High Harm
$20,000.00
B2. Sexual assault in the form of sexual attack or sexual activity where the Member did not consent or was unable to consent.
Low Harm
$30,000.00
Medium Harm
$40,000.00
High Harm
$50,000.00
C. Enhanced Payment — Class Members who suffer or suffered from PTSD or other diagnosed mental injuries, or physical injuries directly arising from sexual assault or sexual harassment.
Low Harm
$50,000.00
Medium Harm
$75,000.00
High Harm
$100,000.00
[46] Class Members cannot receive compensation under Category C unless they applied for VAC disability benefits for harm arising from sexual misconduct, and were denied on or after April 3, 2017, when VAC’s polices regarding these kinds of applications changed. Claimants who are members of both the CAF Class and DND/SNPF Class may receive only one payment at the highest level to which they are entitled.
[47] The Settlement Agreement also contains terms to prevent double recovery where Class Members have been compensated for the same incident or injury in another proceeding, including those who have received or are eligible to receive compensation in the “LGBT Purge” Class Action (Ross, Roy and Satalic v Her Majesty the Queen, Federal Court No T-370-17). If a Class Member receives compensation under Category C and subsequently qualifies for a pension, award, or similar monetary benefit from VAC or under the Government Employees Compensation Act, RSC, 1985, c G-5 [GECA] in respect of the same incident or injury, an amount that is equivalent to the amount paid under Category C must be deducted from the pension or award.
[48] The Settlement Agreement provides for an aggregate cap for the compensation amounts for each class, as well as the circumstances in which unused funds may be redistributed to other class members. Any further residue, up to a maximum of $23 million, may be applied to a fund to promote awareness and cultural change in the CAF.
[49] The total amount payable in respect of the CAF Class cannot exceed $800 million, and the total amount payable in respect of the DND/SNPF Class cannot exceed $100 million. If the amounts are insufficient to pay the prescribed compensation to each eligible Class Member, then all amounts payable shall be divided on a pro rata basis among eligible Class Members so that the total payments do not exceed these limits. The funds for one class may be redistributed to the other class if one exceeds the limit and the other does not.
[50] Canada will also provide $2 million towards awareness and culture change, regardless of whether or not the limits are exceeded for either class.
[51] The Settlement Agreement provides for a paper-based, non-adversarial, and confidential claims process. Class Members will not be required to undergo an interview. However, they may request an interview in certain circumstances. For example, an interview may be requested as a form of reasonable accommodation, in order to respond to a request for additional information from the claims administrator or assessor(s), or in connection with an application for reconsideration. No claimant is required to testify in a court or undergo cross-examination or any questioning by an adverse party.
[52] The claims process is intended to prevent re-traumatization of Class Members who experienced sexual misconduct, by forgoing the need for oral testimony or cross-examination. As Justice Warren Winkler stated in Parsons v Canadian Red Cross Society, [2000] OJ No 2374 (Ont SC), which concerned a proposed settlement of the “tainted blood” litigation:
[17] This contrasts favourably with many class proceedings where, despite a global settlement, class members are still required to engage in extensive legal proceedings to obtain the benefits. The relative ease of access to compensation is an important feature. It provides some certainty as to the quantum of compensation that class members will receive at each level, but more so, it demonstrates the thoroughness of class counsel in fashioning a satisfactory settlement.
[53] To make a claim for compensation, a Class Member need only complete an application form with the following information:
(a) confirmation that the claimant is a current or former member of the CAF or employee of the DND or SNPF who experienced sexual assault, sexual harassment, or discrimination based on sex, gender, gender identity, or sexual orientation while serving or employed;
(b) basic biographical information (e.g., name, date of birth, social insurance number, contact information, details of CAF membership or DND/SNPF employment);
(c) information regarding whether the claimant has already been compensated for any event or injury for which claims are made under the Settlement Agreement, including through VAC or a similar benefit program;
(d) for Compensation Category A, a short description of the harm sustained;
(e) for Compensation Category B, a description of the incidents and harm sustained;
(f) for Compensation Category C, copies of medical records demonstrating that the claimant suffered a diagnosed mental or physical injury, supported by additional information as needed; and
(g) certification and a witness signature.
[54] According to the Plaintiffs, Class Members often say they do not want to become involved in litigation because they fear the trauma associated with cross-examination and retribution from alleged perpetrators. They appreciate the confidential nature of the process, and would otherwise be very reluctant to describe their experiences.
[55] Amounts paid under the Settlement Agreement are intended to be structured as non-taxable income. The Defendant has agreed to write letters to Employment and Social Development Canada and the Canada Revenue Agency requesting that Class Members’ entitlement to federal social benefits or social assistance not be adversely affected, and to provincial and territorial governments requesting that receipt of compensation under the Settlement Agreement not affect the receipt of social benefits.
[56] Key features of the claims administration process include the following:
(a) the claims process is meant to be non-adversarial and restorative, to the extent possible;
(b) claimants are presumed to be acting honestly and in good faith in completing their claim forms;
(c) claimants have 18 months to prepare and submit their claim forms, with a possible 60-day extension in exceptional circumstances;
(d) claimants are expected to provide details of their complaint and relevant biographical information, and are encouraged to provide all relevant documentation;
(e) claimants seeking compensation under Category C must provide medical records in support of the level of harm claimed, and indicate whether they have made claims under the GECA or to VAC in respect of the same incident or injury;
(f) claimants seeking compensation must certify that the information in their application is true;
(g) the administrator, assessor(s), and Canada shall establish service standards regarding the administration of claims that may be adjusted from time to time, with a view to deciding all claims no later than 14 months after the claims deadline;
(h) the administrator must initially verify the identity of the claimant, that the information provided is complete, and whether the claimant has opted out;
(i) Canada must verify a claimant’s military service or employment, retrieve and review relevant records, and provide a response to the claim if it chooses;
(j) if Canada provides a response to the claim, the claimant will be notified and provided with access to the response and an opportunity to reply;
(k) the administrator and assessor(s) shall review the claim and information available, and render a decision on eligibility and level of compensation;
(l) the administrator shall then inform the claimant of the decision;
(m) the administrator shall pay $5,000 to each Class Member who is eligible for a Category A payment, as soon as reasonably practicable following verification that she or he qualifies for compensation;
(n) to request reconsideration by the lead assessor, claimants may submit a reconsideration form and any new relevant information;
(o) the administrator shall then provide Canada with access to any such new information, and Canada may provide any new relevant information;
(p) the lead assessor shall then issue a decision and inform the claimant;
(q) the decisions of the administrator and assessor(s) and any reconsideration decisions are final and binding without recourse to the Court or another tribunal;
(r) Canada shall have the right to randomly audit the claims process; and
(s) the administrator and the assessor(s) will provide monthly reports to counsel.
[57] The Settlement Agreement establishes an Oversight Committee that will identify and choose the measures to promote awareness and culture change. Those measures may be implemented by Canada and/or a third party. The Oversight Committee consists of seven members:
(a) a representative of the CAF Class;
(b) a representative of the DND/SNPF Class;
(c) a representative of class counsel who participated in the discussions preceding the Settlement Agreement;
(d) a representative of the CAF;
(e) a representative of the DND/SNPF;
(f) a representative of Canada’s legal counsel who participated in the discussions preceding the Settlement Agreement; and
(g) the lead assessor.
[58] The role of the Oversight Committee is also to monitor the work of the notice provider, administrator, and assessor(s); consider and determine disputes relating to the interpretation of the Settlement Agreement, except in relation to sections 5, 6, and 8 and related Schedules; provide guidance and direction on the interpretation and application of the Settlement; and consider and determine any matter not expressly addressed by the Settlement Agreement.
(2) General principles of settlement approval
[59] The test to be applied by the Court in approving settlement of a class proceeding is “whether the settlement is fair and reasonable and in the best interests of the class as a whole” (Merlo at para 16). The factors to be considered include, but are not limited to, the following (Châteauneuf v Canada, 2006 FC 286 [Châteauneuf] at para 5; Parsons v Canada Red Cross Society, [1999] OJ No 3572 (Ont SC) [Parsons 1] at para 71; and Sayers v Shaw Cablesystems Ltd, 2011 ONSC 962 at para 28):
(a) the likelihood of success or recovery with continued litigation;
(b) the amount and nature of discovery evidence or investigation;
(c) the settlement terms and conditions;
(d) the recommendations and experience of counsel involved;
(e) the future expense and likely duration of contested litigation;
(f) the number and nature of any objections;
(g) the presence of good faith and the absence of collusion;
(h) the dynamics of, and positions taken during, the negotiations; and
(i) the risks of not unconditionally approving the settlement.
[60] A settlement need not be perfect, but must fall within the “zone of reasonableness” (Ford v F Hoffmann-La Roche Ltd, [2005] OJ No 1118 (Ont SC) at para 115). As Justice Danièle Tremblay-Lamer stated in Châteauneuf:
[7] The Court with a class action settlement before it does not expect perfection, but rather that the settlement be reasonable, a good compromise between the two parties. The purpose of a settlement is to avoid the risks of a trial. Even if it is not perfect, the settlement may be in the best interests of those affected by it, particularly when the risks and the costs of a trial are considered. It is always necessary to consider that a proposed settlement represents the parties’ desire to settle the matter out of court without any admission by either party regarding the facts or regarding the law.
[61] The zone of reasonableness test acknowledges that a number of settlement possibilities may be in the best interests of the class when compared to the alternative of continued litigation (Dabbs v Sun Life Assurance Co of Canada, [1998] OJ No 2811 (Ont Gen Div) at para 30). The Court must show deference to the process underlying the negotiated settlement (Fontaine v Canada (Attorney General), 2006 NUCJ 24 at para 38).
[62] The Court has no discretion to rewrite the substantive terms of the agreement. Nor is it permi