McLean v. Canada (Attorney General)

McLean v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2023-08-10
Neutral citation
2023 FC 1093
File numbers
T-2169-16
Decision Content
Date: 20230810
Docket: T-2169-16
Citation: 2023 FC 1093
Ottawa, Ontario, August 10, 2023
PRESENT: Mr. Justice Sébastien Grammond
BETWEEN:
GARY LESLIE MCLEAN, ROGER AUGUSTINE, CLAUDETTE COMMANDA, ANGELA ELIZABETH SIMONE SAMPSON, MARGARET ANNE SWAN AND MARIETTE LUCILLE BUCKSHOT
Plaintiffs
and
HIS MAJESTY THE KING IN RIGHT OF CANADA AS REPRESENTED BY THE ATTORNEY GENERAL OF CANADA
Defendant
and
AUDREY HILL AND SIX NATIONS OF THE GRAND RIVER ELECTED COUNCIL
Moving Parties
ORDER AND REASONS
[1] A class action was instituted on behalf of survivors of Indian Day Schools. Canada and representatives of the survivors entered into an agreement to settle the class action. Pursuant to the settlement agreement, survivors could claim compensation.
[2] In the initial version of the settlement agreement, survivors had only one year to file their claims. Many survivors expressed the opinion that this period was too short. In response to this criticism, Canada and the representative plaintiffs agreed to extend that period to two and a half years. This Court then approved the settlement agreement. As a result, survivors had until July 13, 2022 to claim compensation.
[3] The Moving Parties, Audrey Hill and the Six Nations of the Grand River Elected Council, are asking this Court to extend this deadline to December 31, 2025. They say that insufficient efforts were made to inform survivors about the details of the claims process. They criticize the lack of support for survivors who wish to file a claim. They argue that the COVID-19 pandemic compounded these difficulties and prevented many survivors from making a claim.
[4] The Court dismisses the motion and refuses to extend the deadline.
[5] The Court rejects the Moving Parties’ contention that the settlement agreement gives the Court a general power to extend the deadline. The agreement only provides for extensions in individual cases for a maximum of six months. The intention of the parties was that the claims process would then be closed.
[6] The Court also declines to exercise its supervisory jurisdiction to extend the deadline for filing claims. Supervisory jurisdiction can only be used in exceptional circumstances where the settlement agreement is not being implemented. It cannot be used to change the agreement. The Court carefully reviewed the evidence brought by the Moving Parties and found that the measures provided by the agreement with respect to notice and class member assistance were implemented. While additional forms of assistance could have been provided to survivors who wish to make a claim, this was not required by the agreement. The Moving Parties’ contention that large numbers of survivors have been prevented from filing a claim is not supported by the evidence. Rather, approximately 185,000 survivors have made a claim within the deadline or the six-month extension period.
I. Background [7] The present motion arises in the context of the settlement of a class action aimed at providing compensation to survivors of “Indian Day Schools.”
[8] The Moving Parties are Audrey Hill and the Six Nations of the Grand River Elected Council [Six Nations or the Council]. Ms. Hill is herself a day school survivor and a member of the class. She also provided assistance to other persons in her community who wished to submit a claim for compensation pursuant to the settlement. Six Nations is the largest on-reserve First Nation community in Canada and the one with the most day schools. Its Council has provided assistance to community members who wished to submit a claim.
[9] The deadline to submit a claim was July 13, 2022. Class members could individually ask for an extension for special reasons until January 13, 2023. The Moving Parties are now seeking an order extending the deadline until December 31, 2025 for all class members, as well as an order for an independent assessment of the size of the class and the take-up rate. The plaintiffs and defendant oppose this motion.
[10] To provide the context in which this motion is brought, I will briefly summarize the settlement of residential schools class actions and explain in what respects the settlement of the present action differs. I will then outline how certain events during the implementation of the settlement of this action led the Moving Parties to bring this motion.
A. Residential Schools and Day Schools [11] As the Supreme Court of Canada once said, “we cannot recount with much pride the treatment accorded to the [Indigenous] people of this country”: R v Sparrow, [1990] 1 SCR 1075 at 1103. Residential schools are one of the darkest chapters of Canada’s history. One of the aims of the residential school system was to encourage the assimilation of Indigenous children into non-Indigenous society. To this end, it was thought necessary to separate Indigenous children from their parents, families and communities. As the Court explained in Canada (Attorney General) v Fontaine, 2017 SCC 47 at paragraph 1, [2017] 2 SCR 205 [Fontaine]:
From the 1860s to the 1990s, more than 150,000 First Nations, Inuit, and Métis children were required to attend Indian Residential Schools operated by religious organizations and funded by the Government of Canada. As Canada has acknowledged, this system was intended to “remove and isolate children from the influence of their homes, families, traditions and culture” (“Statement of Apology to former students of Indian Residential Schools” of the Right Honourable Stephen Harper on behalf of Canada, June 11, 2008 (online)). Thousands of these children were abused physically, emotionally, and sexually while at residential schools.
[12] A number of class actions were initiated on behalf of survivors of the residential schools. In 2006, many of these class actions were settled through the Indian Residential Schools Settlement Agreement [IRSSA]. One component of the IRSSA is the Independent Assessment Process [IAP], aimed at offering compensation to survivors who were victims of physical or sexual abuse at the residential schools. Survivors had five years to make a claim. They had to describe the abuse they suffered at an in-person hearing before an adjudicator.
[13] The IRSSA, however, did not address all wrongs committed by Canada with respect to the education of Indigenous children. It did not cover day schools operated by Canada in Indigenous communities. These schools were different from residential schools in that the students returned home every night and were not separated from their parents, families and communities. Nevertheless, day schools, like residential schools, were the backdrop of egregious cases of physical and sexual abuse. As Chief Hill of Six Nations states in his affidavit, day schools were
. . . devastating for Indigenous individuals, families, and communities. Students were regularly subject to horrifying physical and sexual abuse, and were systematically punished and humiliated for nothing more than being who they were: Indigenous children. The negative effects of attending an IDS [Indian Day School] were profound and caused lasting damage [to] our people’s self worth, mental and physical health, and their ability to lead safe and happy lives.
B. The Present Class Action and Its Settlement [14] The plaintiffs began a class action on behalf of former day school students. The class action was certified on consent. Canada and the plaintiffs then negotiated a settlement, known as the Indian Day Schools Settlement Agreement [IDSSA or Agreement].
[15] The Agreement provides a basic amount of compensation to all former day school students. This is known as “Level 1” compensation and amounts to $10,000 per person. Canada provides an initial amount of $1.27 billion to fund Level 1 compensation, which can be increased to $1.4 billion if needed. Moreover, former students who were victims of physical or sexual abuse may receive compensation ranging from $50,000 to $200,000 (these are Levels 2–5). There is no upper limit to the total amount of compensation paid for claims at Levels 2–5. The claims process is entirely in writing. Contrary to the process under the IRSSA, there are no oral hearings. In this regard, section 9.03 of the Agreement states that the claims process is intended to be expeditious, cost-effective, user-friendly and culturally sensitive and aims at “mitigat[ing] any likelihood of retraumatization.” Moreover, section 6.04 of the Agreement provides that class members will receive notice of the settlement in accordance with a notice plan appended to the Agreement. (Unfortunately, I must draw the attention to the low quality of the French version of several documents in this matter, in particular the notice plan.)
[16] In the initial version of the Agreement, one feature of the claims process was that class members had to file their claims within one year of the Implementation Date, defined as either the end of the opt-out period or the exhaustion of any appeal process regarding the approval order.
[17] Canada and the plaintiffs sought approval of the Agreement pursuant to rule 334.29(1) of the Federal Courts Rules, SOR/98-106. Many class members filed notices of opposition. One frequently mentioned ground was that the claims period was too short. Before the hearing of the motion for approval, Canada and the plaintiffs addressed this issue by amending the Agreement to extend the claims period to two and a half years. This was accomplished by amending the definition of “Claims Deadline,” in section 1.01, to mean two years and six months (instead of one year) after the Implementation Date.
[18] In the context of the motion for approval, the parties submitted to the Court the expert report of Peter Gorham, who calculated that the best estimate of the number of persons who attended day schools from 1920 to 1994 was 190,000, and the best estimate of the number of such persons who were still alive in 2017 was 127,000. The latter figure appears to be the basis for the $1.27 billion fund appropriated for the payment of Level 1 claims and is described in certain documents as an estimate of the class size. However, the class is somewhat larger because the 127,000 figure does not include persons who passed away between 2007 and 2017, whose estates are entitled to make claims.
[19] My colleague Justice Michael Phelan approved the Agreement: McLean v Canada, 2019 FC 1075. He found that the Agreement, despite the objections and its alleged shortcomings, was fair and reasonable. He noted that the claims process was designed to avoid a number of issues that arose in the administration of the IRSSA, in particular the traumatizing effects of oral hearings and the need for class members to retain lawyers. With respect to the claims deadline, he stated, at paragraphs 121 and 128:
It should be of considerable comfort to many objectors that the process of objection worked – it made meaningful change possible. The time for claiming, while well intended, was extended from one year to two and a half years through an amendment to the Settlement, unquestionably as a result of objection.
. . .
Timing of claims process: This objection to the one-year claim filing requirement was one of the most consistent issues of objection. It was a major impediment to be addressed. As seen by the amendments to the Settlement, it was revised in a reasonable fashion to two and a half years.
[20] A motion by an objector for leave to appeal Justice Phelan’s approval order was dismissed: Ottawa v McLean, 2019 FCA 309. Moreover, the Federal Court of Appeal dismissed appeals from Justice Phelan’s refusal to grant Indigenous representative organisations leave to intervene at the approval hearing, largely because the concerns put forward by these organizations were already addressed by other opponents: Nunavut Tunngavik Incorporated v McLean, 2019 FCA 186; Whapmagoostui First Nation v McLean, 2019 FCA 187.
C. Implementation of the Settlement Agreement [21] The Agreement’s Implementation Date was January 13, 2020 and class members could then start to file their claims.
[22] Barely two months later, the COVID-19 pandemic forced all levels of government in Canada to implement drastic measures to fight the spread of the virus. Restrictions on indoor gatherings and travel were in place, with varying degrees of intensity, for a good portion of the following two years.
[23] The impacts of the pandemic were felt particularly strongly in Indigenous communities. COVID-19 risk factors are more prevalent in Indigenous communities. Many of these communities face challenges in accessing basic services, such as running water, affordable food or health services. High-speed Internet, which was critical in mitigating the impact of restrictions on gatherings, is often difficult to access in Indigenous communities.
[24] In July 2020, the Court approved an amendment to the notice plan. Argyle Public Relationships [Argyle], a communications firm that assists in the delivery of the plan, was to offer community support sessions in about 60 Indigenous communities. Because of the pandemic, these sessions did not start before January 2021.
[25] Meanwhile, the Moving Parties undertook to assist class members in the Six Nations community in various ways. In addition to filing her own claim, Ms. Hill assisted 23 persons in this process. In his affidavit, Chief Hill describes the Council’s efforts to raise awareness about the Agreement and the claims process among the members of Six Nations and to provide assistance to those members who wished to file a claim. For more than a year, an employee of the Council was assigned full-time to assist Six Nations members who wished to file a claim, even though the Council had no obligation to do so and received no funding. This employee, Ms. Martin, filed an affidavit in support of the present motion. In the weeks before the Claims Deadline, the demand for assistance grew considerably. The Council had to assign additional employees to assist community members.
[26] I pause here to commend the Moving Parties for having provided assistance to members of their community, while being under no obligation to do so. I am certain that many other persons or organizations across the country acted similarly, and they are to be commended as well.
[27] As a result of the knowledge and experience acquired while providing assistance to community members, the Moving Parties have raised a number of issues with respect to the Agreement or its implementation, which can be briefly summarized as follows:
· The class size estimate is unreliable, which makes it impossible to calculate the take-up rate;
· The notice plan does not include any form of in-person outreach to community members;
· The dissemination of information regarding the Agreement was hampered by the COVID-19 pandemic;
· There was a lack of personalized assistance for class members;
· Assistance provided by telephone is inappropriate given the nature of the harms at stake;
· These difficulties were compounded by the lack of Internet access, language barriers and low level of literacy in many Indigenous communities.
[28] According to the Moving Parties, given these shortcomings, a number of class members never made a claim, because they were not ready to do so before the Claims Deadline or were not even made aware of the claims process.
[29] As the Claims Deadline approached, a number of Indigenous representative organizations called on the parties to the Agreement to provide more time for former day schools students to file their claims. In particular, in December 2021, the Assembly of First Nations adopted a resolution calling on the parties to the Agreement to extend the Claims Deadline by one year. The shortcomings mentioned above were frequently relied on to justify the requests. However, the parties did not change the Claims Deadline.
[30] According to the data provided at the hearing, there are about 185,000 persons who filed a claim, about 7,300 of whom asked for an extension during the six months following the Claims Deadline. The parties to the Agreement have relied on the large number of claims filed to explain why they have not agreed to extend the Claims Deadline.
[31] In December 2022, the Moving Parties brought the present motion, seeking an extension of the Claims Deadline until December 31, 2025 and an independent determination of the take-up rate.
[32] I should also note that other class members have brought a motion seeking relief in respect of the issue of progressive disclosure, that is, where a class member files a Level 1 claim and later recovers memory of events justifying a claim at a higher level. Justice Phelan dismissed this motion, noting that the Agreement does not allow a class member to file more than one claim: McLean v Canada (Attorney General), 2021 FC 987 [Waldron]. The Federal Court of Appeal recently heard an appeal from this decision, but has not yet rendered judgment.
II. Analysis [33] To explain why I am dismissing this motion, I proceed in six parts. I first give an overview of the applicable legal framework. I then explain why I grant standing to the Moving Parties. Next, I analyze the interpretation of the Agreement put forward by the Moving Parties. In a fourth part, I review the Moving Parties’ claim that the class members have been deprived of the benefits of the Agreement. The fifth and sixth parts pertain to the existence of a gap in the Agreement and to the Moving Parties’ request for an assessment of the take-up rate.
A. Legal Framework [34] The legal framework governing the resolution of this matter must first be explained. After recalling certain basic principles regarding class actions, I describe the circumstances in which the Court’s supervisory jurisdiction may be invoked.
(1) Class Actions [35] A class action is a procedural vehicle that allows a representative plaintiff to bring an action on behalf of members of a class, without the latter’s explicit consent. Proceeding collectively promotes a more efficient use of judicial resources, enables the pursuit of claims that would otherwise be uneconomical and deters potential tortfeasors: Western Canadian Shopping Centres Inc v Dutton, 2001 SCC 46 at paragraphs 27–29, [2001] 2 SCR 534. The class action has become an essential tool to improve access to justice. A class action is often the only realistic way to pursue a claim and to obtain compensation.
[36] Because the representative plaintiff acts on behalf of the class members without their consent, class action legislation (in this case, the Federal Court Rules) provides safeguards aimed at ensuring that the actions of the representative plaintiff are in the interests of class members. To that end, the Court’s approval is needed for certain crucial steps in the action.
[37] Most class actions, like most lawsuits, end in a negotiated settlement. By nature, a settlement involves mutual concessions between the parties. Because the concessions made by the representative plaintiff bind class members, rule 334.29 provides that a settlement must be approved by the Court. The test for approving a settlement is not perfection; it is whether the settlement is fair and reasonable: see, for example, Merlo v Canada, 2017 FC 533 at paragraphs 16–18. Moreover, when approving a settlement, the Court cannot amend the agreement of the parties; it must approve it as is or reject it. Were it otherwise, parties would be discouraged from settling the matter, as their bargain could be upended by the Court.
[38] These principles remain relevant in spite of this case’s historical and political ramifications. The plaintiffs have chosen to frame their claims in private law terms and to pursue them with the tools afforded by civil procedure. The Supreme Court of Canada twice considered the IRSSA. In Fontaine, at paragraph 35, it remarked that the IRSSA “is at root a contract, the meaning of which depends on the objective intentions of the parties.” See also JW v Canada (Attorney General), 2019 SCC 20 at paragraph 102, [2019] 2 SCR 224 [JW]. This also applies to the Agreement at issue in the present case.
(2) Supervisory Jurisdiction [39] The Moving Parties are relying on the Court’s supervisory jurisdiction over class actions. At every step of a class action, even after settlement, the Court retains jurisdiction to address unforeseen issues. This is a corollary of the Court’s role of protecting unrepresented class members: Fantl v Transamerica Life Canada, 2009 ONCA 377 at paragraph 39. Depending on the circumstances, supervisory jurisdiction may flow from class action legislation, from the order approving a settlement or from the provisions of the settlement agreement itself: Fontaine, at paragraph 32; JW, at paragraph 114. In this case, the approval order makes it explicit that the Court retains jurisdiction.
[40] Supervisory jurisdiction “is limited and shaped by the terms of the agreement, once it is approved and determined to be fair, reasonable and in the best interests of the class”: JW, at paragraph 120. In other words, courts cannot rely on their supervisory jurisdiction to amend a settlement agreement: Fontaine, at paragraph 59. Quite the opposite, when courts have exercised their supervisory jurisdiction, they made it clear that they were giving effect to the settlement agreement instead of amending it.
[41] For this reason, the circumstances in which courts may intervene have usually been described in terms of a breach of the settlement agreement. However, there does not appear to be any generally accepted formulation of a test for the exercise of supervisory jurisdiction. The cases that the parties brought to my attention can be roughly classified in three categories.
[42] First, as in Fontaine, the court may be asked to solve a dispute regarding the interpretation of a provision of the settlement agreement. This, of course, assumes that the matter does not fall within the exclusive jurisdiction of the adjudication processes created by the agreement.
[43] Second, courts may intervene in cases of serious failures to implement the settlement agreement. After reviewing the case law arising under the IRSSA, Justice Côté in JW found that this would apply only in very narrow circumstances, described as a “failure by the IAP adjudicator to apply the terms of the IAP Model, which amounts to failure to enforce the IRSSA”: JW, at paragraph 140. Justice Abella, for her part, stated, at paragraph 35:
Judges, in short, have an ongoing duty to supervise the administration and implementation of the Agreement, including the IAP. In exercising this supervisory role in the Requests for Directions context, judges can intervene if there has been a failure to apply and implement the terms of the Agreement. In determining whether this failure exists, Supervising Judges will focus on the words of the Agreement, so that the benefits promised to the class members are delivered.
[44] Third, courts may intervene to fill gaps in the settlement agreement. As Justice Côté noted in JW, at paragraph 141, “circumstances will inevitably arise that were not foreseen by the parties and are therefore not provided for in their agreement.” She found that the Chief Administrator’s lack of power to order the reopening of a case that was manifestly wrongly decided constituted a gap. She also relied on NN v Canada (Attorney General), 2018 BCCA 105 [NN], where claims were reopened further to the discovery of new evidence. Likewise, Justice Abella recognized the presence of a gap as sufficient grounds for judicial intervention: JW, at paragraph 27.
[45] Of course, courts may also intervene where this is expressly contemplated by the settlement agreement, as exemplified by Heyder v Canada (Attorney General), 2023 FC 28. The settlement agreement in that case contained a provision allowing the claims administrator to grant extensions of time of no more than 60 days, and the Court to grant an extension of time beyond 60 days. In contrast, the Agreement in this case does not provide the Court with any power to grant extensions of time beyond a set period.
B. Standing [46] Before applying the foregoing principles to the case at hand, I must address the Moving Parties’ standing to bring the present motion.
[47] Ms. Hill seeks leave to participate pursuant to rule 334.23(1), which reads as follows:
334.23 (1) To ensure the fair and adequate representation of the interests of a class or any subclass, the Court may, at any time, permit one or more class members to participate in the class proceeding.
334.23 (1) Afin que les intérêts du groupe ou d’un sous-groupe soient représentés de façon équitable et adéquate, la Cour peut, en tout temps, autoriser un ou plusieurs membres du groupe à participer au recours collectif.
[48] Six Nations, on its part, seeks public interest standing. The test for public interest standing comprises three prongs: “whether the case raises a serious justiciable issue, whether the party bringing the action has a real stake or a genuine interest in its outcome and whether, having regard to a number of factors, the proposed suit is a reasonable and effective means to bring the case to court”: Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 at paragraph 2, [2012] 2 SCR 524 [Downtown Eastside]. These three factors are not “hard and fast requirements,” but must be “assessed and weighed cumulatively” and “applied in a flexible and generous manner”: Downtown Eastside, at paragraph 20.
[49] Given the conclusions I reach on the merits of the motion, the issue of standing is not determinative. I will therefore state only briefly the reasons why I grant standing to the Moving Parties.
[50] I will analyze the standing of Ms. Hill and Six Nations together. There is little case law regarding rule 334.23 or its equivalent in the class action legislation of other Canadian jurisdictions. Given the grounds put forward by Ms. Hill for her intervention, the Downtown Eastside test, while not directly applicable, provides useful guidance as to what factors may be considered relevant.
[51] The first prong of the Downtown Eastside test does not translate into a full review of the merits; rather, the aim is to ensure that the matter may be decided according to legal rules: Downtown Eastside, at paragraph 42. Here, the Moving Parties argue that the impacts of the COVID-19 pandemic have resulted in a failure to deliver the benefits promised by the Agreement. They assert that their claims fall in the categories of circumstances that, according to Fontaine and JW, justify the exercise of the Court’s supervisory jurisdiction. They say that they are not seeking an amendment to the Agreement. Whether their claim really amounts to this is a matter for the merits. To the extent described below, their claim is justiciable and not frivolous.
[52] Ms. Hill did not cease to be a class member when her claim was paid. She therefore falls within the ambit of rule 334.23. Moreover, both Moving Parties have the genuine interest required by the second prong of the Downtown Eastside test. Such a genuine interest is not the same as a legal right; otherwise there would be no need for public interest standing. Both Ms. Hill and Six Nations have devoted considerable time, energy and resources to helping class members. They have “engaged with the issues they raise” and have “sought unsuccessfully to have the issue determined by other means”: Downtown Eastside, at paragraph 43. Moreover, the fact that Six Nations is an Indigenous governing body is an additional factor weighing in the balance on this prong of the test: see, by way of analogy, Fontaine v Canada (Attorney General), 2014 BCSC 2531.
[53] I am also satisfied that there is no other practical and effective means of bringing the issue before the Court, given the position taken by the Plaintiffs. To the extent that the Moving Parties’ case hinges upon the effects of the COVID-19 pandemic, the issue could not have been raised at the settlement approval hearing, which took place in 2019.
[54] To the extent that rule 334.23 requires Ms. Hill to prove that she is able to represent the class, I am satisfied that she has done so, given the quality of the evidence and submissions she provided.
[55] Lastly, reconciliation between the Crown and Indigenous Peoples is an additional factor that warrants granting standing to the Moving Parties. A significant number of Indigenous representative organizations, including the Assembly of First Nations, have expressed concerns with the claims process set out in the Agreement. Reconciliation requires that the merits of these concerns be analyzed, within the bounds of the Court’s role.
C. Interpretation of the Late Claims Provision [56] The Moving Parties first argue that the Court’s intervention is necessary to give effect to the Agreement as they interpret it. According to them, the Agreement should be interpreted in a manner that gives the Court discretion to extend the Claims Deadline, without any precise limit. This interpretation is based on schedule B of the Agreement, which sets out the details of the claims process. Section 29 of schedule B reads as follows:
29. It is recognized that in some extraordinary cases, a Claimant may be entitled to relief from strict application of the Claims Deadline; however, in no event may the Claims Deadline be extended by more than six (6) months.
[57] The Moving Parties seek to read this section as providing two independent rights: an extension of the Claims Deadline by no more than six months; and a more general right to relief from strict application of the Claims Deadline, which would not be subject to the six-month limitation.
[58] This interpretation is untenable. Rather, there is every indication that section 29 creates only one right, namely, for an individual to apply for an extension of no more than six months. This is buttressed by the recognized methods of legal interpretation: ordinary meaning, context and purpose.
[59] In its ordinary meaning, a sentence composed of two parts separated by the conjunction “however” pertains to a single subject and the second part is a qualifier or restriction on the first part. The first part of section 29 gives individuals the right to apply for an extension of time. A logical reading of the second part is that is restricts the scope of the first part, that is to say, that an individual may apply for an extension for no more than six months. If the intention was to provide two separate rights, one wonders why the second part begins with “however” and is framed in negative terms. In addition, the fact that section 29 provides a right to “a claimant” seems to foreclose the class-wide extension requested by the Moving Parties.
[60] The immediate context also belies the interpretation put forward by the Moving Parties. Section 29 forms part of a section of schedule B called “deadline extension.” Section 30 sets out the process for requesting an extension, provides that such a request must be made within six months of the Claims Deadline and gives examples of grounds for making such a request. Section 31 provides that requests for extensions are decided by the Claims Administrator or, in certain cases, by the Exceptions Committee, and that their decisions are final. This immediate context does not support the idea that section 29 creates two distinct entitlements, as there is a single process. It is implausible that the parties to the Agreement would have created an entitlement without a process. Moreover, this context reinforces the idea that section 29 is concerned only with individual requests, not class-wide extensions, and that this Court has no role to play in implementing section 29.
[61] An additional indication that there is only one extension process and that it is limited to a six-month period is found in section 1 of the Agreement, which defines “Request for Deadline Extension” as
. . . a request for an extension of the Claim Deadline made by a Survivor Class Member in accordance with Schedule I; however, no requests may be made more than six (6) months after the Claims Deadline . . .
[62] There is, however, no definition of the “request for relief” that the Moving Parties suggest is a distinct entitlement.
[63] The Moving Parties assert that the presumption of consistent expression and the presumption against surplusage require the Court to adopt their proposed interpretation. I disagree. While some care was obviously taken in the drafting of the Agreement, it has not gone through the rigorous drafting process typical of statutes. At the hearing of this motion, counsel for the Moving Parties acknowledged that it was poorly drafted. It is plausible that the parties have used synonyms to refer to the same concept and that they repeated certain things to emphasize them. Therefore, I attach little weight to the use of two different expressions, “relief from strict application” and “extension,” in section 29 of schedule B. In addition, the structure of section 29 closely parallels that of the definition of “Request for Deadline Extension,” yet the latter uses the concept of extension instead of that of relief in the former. Likewise, the reference to “extraordinary cases” in section 29 does not appear to differ in substance from the somewhat more elaborate description of the relevant criteria in section 30. It is also obvious that parts of sections 28–31 are intended to be redundant and merely to repeat concepts or rules already set forth in the Agreement itself.
[64] Regard may also be had to the purpose of the provision. In this regard, the Moving Parties relied on the preamble to the Agreement, which states, in its relevant portion, that the parties “intend there to be a fair, comprehensive and lasting settlement of claims related to Indian Day Schools, and further desire the promotion of healing, education, commemoration, and reconciliation.”
[65] While this is the overall purpose of the Agreement, one must also pay attention to the purpose of the specific provision at issue: R v Safarzadeh‑Markhali, 2016 SCC 14 at paragraphs 27–28, [2016] 1 SCR 180. Sections 28–31 of schedule B aim at bringing closure to the claims process, with a limited additional window for class members who show valid reasons for not being able to meet the initial deadline. See, by way of comparison, Lavier v MyTravel Canada Holidays Inc, 2011 ONSC 3149 at paragraphs 35–36; Myers v Canada (Attorney General), 2015 BCCA 95 [Myers] (dealing with the IRSSA). While such closure benefits Canada, class members received other benefits in exchange. Thus, section 29 should be given an interpretation that favours this purpose, instead of thwarting it. Yet, the interpretation put forward by the Moving Parties would effectively deprive Canada of the benefit of the Claims Deadline, as there would never be any closure to the claims process.
[66] Designing a claims process with a fixed deadline does not offend the more general purpose of reconciliation. I echo the words of Chief Justice Bauman of the British Columbia Court of Appeal in Myers, at paragraph 25:
I acknowledge the profound importance of these objectives and the need to encourage their attainment. Still, the IRSSA is a settlement of massive litigation. The parties to it gained many advantages and made many compromises in consideration therefor. In particular, the respondents sought the certainty of a bright-line deadline for IAP claims. Granting an extension to these four appellants could potentially open the door to many more IAP claims. One must appreciate the holistic nature of the settlement agreement, and the give and take evidenced in it, before ignoring the clear terms of the document and sacrificing the certainty won by the respondents by acceding to this Request for Direction. That would take from the respondents a concession they won for a price in the agreement; it could also potentially compromise the equities struck between the parties in the overall negotiation process that led to and, forms the basis of, the IRSSA.
[67] To summarize, the Moving Parties’ contention that section 29 of schedule B to the Agreement creates two distinct processes for extending the Claims Deadline is devoid of merit. Section 29 creates a single process and it is subject to an ultimate time limit of six months after the Claims Deadline. Therefore, the Moving Parties cannot rely on the provisions of the Agreement to justify the relief they are seeking in this motion.
D. Failure to Deliver Benefits [68] Because the Agreement does not contain any provision allowing a class-wide extension of time beyond the six-month extension period, the Moving Parties can only succeed if they bring themselves within the parameters recognized by the case law for the exercise of the Court’s supervisory jurisdiction. As explained above, the main ground for doing so has been described in a variety of ways, including the failure to deliver the benefits afforded by the settlement agreement. I will use the latter terminology.
[69] To demonstrate that there has not been a failure to deliver the benefits afforded by the Agreement in the present case, I will proceed in three steps. I will first describe the barriers to access to justice that inevitably arise in claims of this kind. I will then describe the measures contemplated by the Agreement to mitigate these barriers; in other words, I will attempt to delineate what was promised. Third, I will review the implementation of the Agreement to determine if these promises were kept or these benefits were delivered.
[70] It is often said that the supervising judge does not have the power to amend or vary the Agreement. Likewise, the exercise of supervisory jurisdiction does not amount to an appeal or a reconsideration of the settlement approval order. These constraints are reflected in the analysis that follows. The focus is on the benefits promised by the Agreement and whether these benefits were provided: JW, at paragraph 35. While additional measures can always be proposed to further improve access to the claims process, the Court cannot order them if the benefits of the Agreement have in substance been delivered.
(1) Barriers to Access to Justice [71] In a class action like the present one, class members are likely to face important barriers to access to justice. Even when the class action is managed collectively, the individual issues are such that claims must be made individually and some sort of evidence is required. The barriers that arise in this context can be roughly classified in two categories: barriers related to the specific nature of the harm resulting from sexual abuse or serious physical abuse and barriers related to the specific circumstances of Indigenous communities.
[72] It is increasingly acknowledged that sexual assault causes insidious and long-lasting forms of trauma, including what is called post-traumatic stress disorder. In many cases, the memory of the events is repressed. Survivors may not fully appreciate the link between their psychological condition and the abuse. Realizing the situation is often accompanied by feelings of guilt and shame. Serious physical assaults may also give rise to some of these specific harms. Overcoming these barriers and disclosing the abuse takes time and, quite often, professional help. The law has gradually adapted to these realities. For example, the legislation of most provinces has been amended to remove limitation periods for claims based on sexual assault. Increasing attention is also being paid to the fact that the legal process may retraumatize survivors, for example by requiring them to describe the abuse they suffered or subjecting the