Percival v. Canada

Percival v. Canada
Court (s) Database
Federal Court Decisions
Date
2024-05-30
Neutral citation
2024 FC 824
File numbers
T-1417-18
Decision Content
Date: 20240530
Docket: T-1417-18
Citation: 2024 FC 824
Ottawa, Ontario, May 30, 2024
PRESENT: The Honourable Mr. Justice Pamel
BETWEEN:
REGINALD PERCIVAL, ALLAN MEDRICK MCKAY, IONA TEENA MCKAY AND LORNA WATTS
Plaintiffs
and
HIS MAJESTY THE KING
Defendant
REASONS FOR APPROVAL OF THE SETTLEMENT
IN THE MATTER OF THE INDIAN BOARDING HOME PROGRAM
Table of Contents
I. Overview 2
II. History of Litigation 5
III. Lived Experiences of Indian Boarding Home Program Survivors 10
IV. Key Terms of Settlement Agreement 18
A. Eligibility 19
B. Compensation and Support 22
C. Claims Process 24
D. Legacy Measures 30
E. Counsel Fees 31
F. Opting Out 33
V. Analysis 34
A. Likelihood of Recovery or Likelihood of Success 35
B. Amount and Nature of Discovery, Evidence or Investigation 37
C. Terms and Conditions of Proposed Settlement 39
D. The Future Expense and Likely Duration of Litigation 41
E. Recommendation of Neutral Parties, If Any 42
F. Number of Objectors and Nature of Objections 42
G. Presence of Arm’s Length Bargaining and Absence of Collusion 43
H. Information Conveying to the Court dynamics and positions of parties during negotiations 44
I. Degree and Nature of Communications by Counsel and Representative Plaintiffs with Class Members During Litigation 45
J. Recommendation and Experience of Counsel 46
VI. Conclusion 47
[1] On December 11, 2023, I approved the settlement [Settlement Agreement] reached in the underlying class proceeding, with reasons to follow [Approval Order]; the following are my reasons.
I. Overview
[2] Beginning in 1951, as part of its historic policies and programs related to Indigenous child education and care, the federal government [Canada] set up and administered a program in which Indigenous students as young as 5 years old were removed from their parents, families and Indigenous communities and placed with families they did not know [boarding home families], often non-Indigenous families living far from the students’ Indigenous communities, for the purpose of attending mostly elementary and high school, in exchange for which the boarding home families received compensation from Canada [Indian Boarding Home Program]. Over time, although it cannot be determined precisely when for specific bands, the responsibility for Indigenous education programs as a whole and the placement of students were transferred from Canada to Indigenous governing bodies, including local Indigenous governments; however, in the eyes of those who had already been removed from their communities [boarding home survivors], their family members and communities, the damage had already been done.
[3] Overall, it is estimated that approximately 40,000 children were taken from their communities, many of whom later reported to have endured considerable hardship in the form of physical, sexual and verbal abuse, humiliation, belittlement, starvation, discrimination and mistreatment at the hands of their boarding home families. In addition, many survivors reported being forbidden to speak their Indigenous language or practise their native culture. Since these children were removed from their homes at a young age, many lament the limited contact, if any, with their families, culture, heritage and communities. These children, now adults, recount stories of isolation, and many who returned to their family home years later report no longer being able to connect meaningfully with their community; their stories speak of an entire generation of Indigenous children being severely damaged—physically, emotionally and psychologically—and losing their culture, language and connection to family and community. For the estimated 33,000 Class Members, the underlying class action addresses the trauma to which their stories bear witness and seeks compensation for damages suffered as a result of the Indian Boarding Home Program.
[4] The Settlement Agreement provides for compensation for two classes of individuals: the Primary Class covers individuals who were placed by Canada in private homes for the purpose of attending school up to but excluding post-secondary education, and it includes any person who participated in the Indian Boarding Home Program from September 1, 1951, to June 30, 1992 [class period]. Students placed after June 30, 1992, may still be considered class members if they are able to establish that they were placed prior to the date on which responsibility was transferred from Canada to an Indigenous governing body. From what I understand, the start date of the class period is the year of the first documented payment by Canada for the room and board of a student living in a private home in order to attend school, coinciding with amendments to the Indian Act, SC 1951, c 29, which empowered the Minister of the Department of Indian Affairs at the time to enter into such agreements; it would seem that Canada had little involvement with student placement as part of the Indian Boarding Home Program after the 1991–92 school year.
[5] The Family Class covers individuals who have a derivative claim under family law legislation arising from a family relationship with a Primary Class member, who may receive compensation through the legacy measures.
[6] The parties settled their dispute and came before me in fall 2024 seeking approval of the Settlement Agreement pursuant to subrule 334.29(1) of the Federal Courts Rules, SOR/98-106 [Settlement Approval Motion]. The estimated value of the settlement is approximately $1.9 billion, and while compensation in any amount is for the most part inadequate to repair the deep wounds spoken about by boarding home survivors, recognition of the need to repair historical wounds, as symbolized by the Settlement Agreement, nonetheless represents an important step in the healing process for those survivors, their family members and their communities, as well as for this country as a whole. The Settlement Agreement, which has received overwhelming support, is meant to provide fair and reasonable compensation for those who have suffered, while also promoting healing, education, commemoration and reconciliation.
[7] I should point out that the underlying class proceeding is about the harm suffered by Class Members in the boarding homes, not at school. To be clear, abuses that may have been suffered by these students while attending school are not the subject of the Settlement Agreement and, consequently, the release provisions set out in the Approval Order affect only the claims asserted in the underlying action against Canada and do not apply to the any of the schools that boarding home survivors attended or the school boards to which those schools belonged.
[8] In addition, I am issuing my reasons now so as to coincide with the publication of the Notice of Settlement, which was issued on May 21, 2024, as well as the completion of the documents requiring court approval under the Settlement Agreement and the claim documents that will be available to the Class Members. The rationale is that issuing the reasons now may add to the outreach efforts set out in the Notice Plan, in conjunction with the Notice of Settlement, so as to enhance publication of the settlement itself as the claims process is being carried out. In addition, as I was of the view that the Opt-Out Period should be set as a function of the publication of the Notice of Settlement, I ordered on April 29, 2024, that the Opt-Out period under the Settlement Agreement expire on Monday, July 22, 2024.
II. History of Litigation
[9] Litigation on behalf of boarding home survivors had its genesis in Quebec; in 2012, the Quebec Subclass Counsel began working with Indian residential school survivors seeking compensation under the Indian Residential Schools Settlement Agreement [IRSSA] (see Baxter v Canada, 2006 CanLII 41673 (ON SC)) at the time. Light was shed on the history of the Indian Boarding Home Program when claims were filed and ultimately rejected under the IRSSA on the basis that some of the claimants did not actually attend an Indian residential school but rather a public school while billeted with a private family, notwithstanding the evidence of abuse suffered by the claimants in that environment. Starting with one community and expanding to others, Quebec Subclass Counsel saw a pattern starting to develop, and in 2016 filed an application for a class action in Quebec on behalf of boarding school survivors. The extent of the Indian Boarding Home Program was not immediately recognized, and neither the applicants in that application nor counsel fully appreciated that they were dealing with a federal program that had affected communities across Canada, something that was only realized when Quebec Subclass Counsel began to receive archival documents from the Government of Canada following the institution of the Quebec application; the Quebec class members subsequently became the basis for the Quebec Subclass in the underlying class proceeding.
[10] In the meantime, Reginald Percival had been advocating for boarding home survivors since 2006 when the IRSSA was announced and was looking for counsel in British Columbia to take on the fight. At first, Mr. Percival had difficulty retaining counsel, likely because neither the plight of boarding home survivors nor the size of potential class membership was widely known. In February 2018, Mr. Percival contacted Class Counsel who, having recently been involved in the Sixties Scoop settlement (Riddle v Canada, 2018 FC 641 [Riddle]), appreciated the newly developed cause of action of loss of language, culture, heritage and identity, and felt that a class action on the basis of the history of the boarding home survivors might be viable, although challenges remained. As was the case with developments in Quebec, one of the initial risks to the viability of a class proceeding in this case was the unknown size of the group; initially, Class Counsel also thought the issues could be local in nature, specific to the Nisga’a community, where Mr. Percival was from, or limited to a few surrounding communities. It was only later that the truly national scope of the Indian Boarding Home Program came to light. As was the case with Quebec Subclass Counsel in 2016, Class Counsel also recognized the possibility of a class proceeding, and advised Mr. Percival in April 2018 that they would be willing to represent him in a class action on behalf of boarding home survivors. More survivors then stepped forward: Allan and Iona McKay in May 2018 and Lorna Watts in June 2018. The underlying action was instituted by Mr. Percival and others in July 2018; Quebec Subclass Counsel became aware of it, and the two actions were merged shortly thereafter.
[11] With the institution of the underlying action, Canada requested time to investigate the allegations being made since, as mentioned earlier, the plight of the boarding home survivors was not widely known, and it was important for Canada to understand what was being litigated. In November 2018, following the first case management conference, Madam Justice Strickland ordered a pause on further procedural steps to permit the parties to engage in dialogue and exchange information to narrow the issues. Documentary disclosure from Canada began shortly thereafter, in December 2018, mostly with archival records from government libraries regarding the Indian Boarding Home Program over time and across regions. Although some work had initially begun for Quebec residents as a result of the Quebec proceeding instituted in 2016, the Department of Crown-Indigenous Relations and Northern Affairs Canada [CIRNAC] contracted with independent research firms to undertake the research and document collection and to draft reports on federal policies and program operations, the devolution of Indian Boarding Home Program administration to First Nation entities, Tribal Council or provincial government control, and student placement records; all told, this work took place over the course of about 6 years.
[12] Discussions continued amongst the parties to narrow the issues so as to increase the prospects for certification. Particularly challenging was identifying who to include in the class on account of the transfer-of-responsibility issue, as well as how to craft a class definition that would not be so narrow as to exclude those with valid claims, yet not so broad as to make certification impossible. Attempts were made to chart the dates on which responsibility for the administration of the Indian Boarding Home Program was transferred from Canada to the various Indigenous authorities. CIRNAC researchers reviewed thousands of archival documents for information on the transfer of authority from Canada to Indigenous organizations and provided more than 1,000 documents comprising thousands of pages; for the most part, there was little if any information regarding transfer of responsibility for the administration of the Indian Boarding Home Program; the information in most of the documents concerning transfers was incomplete or ambiguous, as many of the documents dealt with education generally but did not state whether it was Canada or the band that was responsible for placing the children. In fact, at this point, information for only about 25% of the Indian bands was available. In the end, and in light of the difficulty in obtaining relevant archival information despite assistance from outside experts, the parties were not able to reliably determine specific dates of transfer of responsibility for specific bands.
[13] It is for this reason that the class definition operates with a deeming provision; as mentioned earlier, Class Members placed in the Indian Boarding Home Program prior to June 30, 1992, are deemed to have been placed by Canada, while students placed after that date may also qualify for class membership if, as mentioned, they can show that they were “placed prior to the date on which responsibility for such placement was transferred from Canada to an Indigenous governing body”.
[14] As the extent of the Indian Boarding Home Program became apparent, and following a constructive meeting of the parties in February 2019 to narrow the issues, the underlying action was certified as a class proceeding, on consent and on agreed terms, by Madam Justice Strickland on June 28, 2019. There is of course a difference between certification, which is more a procedural question, and possible settlement on the merits of the claim, and Canada’s consenting to certification was not a signal that it was ready to settle. Concerns remained, I take it, with fully understanding the contours of the Indian Boarding Home Program—its start and end dates and the policies in place to manage it; the issue of transfer of responsibility may still have been an unresolved question, although, with expert reports in hand, the potential size of the class may have been fairly well understood by then. In any event, I take it that consent certification at that point did allow the parties to focus on giving notice to the class. Documentary disclosure continued, and Canada produced its first draft historical report a few months later. I should mention that consent certification did not occur in a vacuum, as it rarely does; rather, it was the culmination of a series of meetings between Class Counsel, Quebec Subclass Counsel and counsel for Canada, which allowed the parties to come to a common position on defining the issues.
[15] The COVID-19 pandemic stalled in-person meetings and caused significant delays in the completion of documentary disclosure in 2020 and 2021; however, Class Counsel and Quebec Subclass Counsel continued to prepare a series of increasingly detailed compensation models for Canada to consider, and the parties were nonetheless able to move forward with the work being undertaken by experts retained by both sides, in particular with respect to determining the dates of transfer of responsibility from Canada to the Indigenous governing bodies and developing legacy and reconciliation projects as part of the settlement. In addition, the limited exchange of information continued even though the government archives housing most of the documentation remained closed. The documents disclosed by Canada and Canada’s historical report assisted the parties in understanding the Indian Boarding Homes Program’s scope over time, geographically in terms of the changing number of students enrolled. They also revealed Canada’s own understanding of the program at the time, including its legal framework, governing policies, funding rules, reporting and decision-making structures.
[16] Coming out of the pandemic, it seems fair to say that the parties had a good idea of the lay of the land; Class Counsel and Quebec Subclass Counsel signalled what they thought a settlement could look like and, although counsel for Canada did not respond, they did not refuse to listen either. In August 2022, counsel for Canada announced that they had received instructions to negotiate a settlement of the underlying class action, and from there, things moved quickly. After a couple of months of meetings and discussions, primarily to discuss issues of (1) the history of the Indian Boarding School Program, including its end date; (2) the size of the class and its calculation; and (3) the process for compensating class members and the basis on which they would be compensated, the parties took part in two dispute resolution sessions with Madam Justice Strickland, from November 14 to 16, 2022, and on December 6 and 7, 2022; these sessions led to the adoption of the Agreement in Principle on December 7, 2022. In February and March 2023, the parties participated in further discussions and negotiations, culminating in the Settlement Agreement on June 15, 2023. Overall, other than the terms of the settlement itself remained hotly debated, there were few, if any, contested motions as part of the litigation. I understand from all counsel that the parties worked together in good faith throughout to achieve a resolution of the underlying action.
III. Lived Experiences of Indian Boarding Home Program Survivors
[17] During the settlement approval hearing, either before me or by way of affidavit evidence, I heard very moving first-hand accounts from several boarding home survivors and their families, who showed great courage in coming forward to tell their stories, thereby having to relive their experiences. These individuals were as follows:
(i)Kenneth Weistche, a member of the Cree Nation of Waskaganish, located in the Eeyou Istchee territory in Northern Quebec;
(ii)Reginald Percival, a member of the Nisga’a nation, born in Gitlaxt’aamiks, British Columbia;
(iii)Annie Irene Trapper Weistche, a member of the Cree Nation of Waskaganish;
(iv)Allan Medrick McKay, a member of the Nisga’a Nation, who was born in Middle Bay, British Columbia, but moved to Laxsgalts’ap with his family when very young;
(v)Iona Teena McKay, a member of the Nisga’a Nation, born in Laxsgalts’ap, British Columbia;
(vi)Lorna Watts, a member of the Nisga’a Nation, born in Kincolith, British Columbia;
(vii)Claudia Newashish, from the Première Nation des Atikamekw de Manawan;
(viii)Louise Tekahawáhkwen Mayo, from the Mohawk Territory of Kahnawake;
(ix)Nicole Wesley, a member of the Lax Kw’alaams community;
(x)Tania Percival, a member of the Nisga’a Nation;
(xi)David Cheechoo, Executive Director at the Wiichihiiwewin Centre of Waskaganish, the applicant in the Quebec class proceeding; and
(xii)Rose Victoria Adams, an Inuk from Kuujjua.
Regarding those who courageously appeared before me, either in person or virtually, I must say that the trembling of their voices as they recounted their stories was palpable, and the trauma reflected in their eyes as they relived their experiences was truly overwhelming; these are stories that all Canadians should hear.
[18] The stories were consistent, with each boarding home survivor recounting how, at a young age, they were torn from their parents and siblings and from the only community and life they had known, rounded up onto buses over the cries of protest and tears of their distraught parents, and driven to live hundreds of miles away, mostly in urban settings, often with non-Indigenous families they did not know, whose language they did not understand, and whose ways were foreign to them. Their stories spoke of physical, sexual, verbal and psychological abuse on countless occasions while living in the boarding homes, of confinement and isolation, of being used as free child labour and being taken advantage of by their boarding home families for monetary gain, and of suffering at the hands of boarding home families, other students billeted with them and other members of their host communities. Their stories also spoke of attempts at suicide, of having lost all connection to their Indigenous language, culture, customs and traditions while growing up, and of being denied the opportunity to maintain real and substantial contact with their families, thereby losing any knowledge of themselves or any sense of self-worth. Many were also survivors of residential schools, where they were forced to endure abuse that is now well-documented as part of our collective history as Canadians.
[19] A vast number of boarding home survivors did not complete high school because of the extensive abuse they suffered, leaving them with permanent emotional scars. When many finally did try to return to their communities, they found that they simply could not fit in; they spoke of having become outsiders in their own homes, of turning inward and feeling that their rights had been taken away from them, and of losing trust in others, especially individuals in authority. Most turned to alcohol and drugs to cope with the pain and suffering, constantly feeling forgotten, abused and abandoned; they felt shame and viewed themselves as a burden on society rather than a contributor. When the time came to raise their own families, their marriages were consumed by alcoholism, drug use and domestic abuse, all coping mechanisms to forget their suffering and the pain they have had to endure. Survivors spoke, among other things, of having projected onto their own children the scars of their mistreatment while in residential schools and boarding homes, never having learned how to love or truly care for children—today we speak of the reality of intergenerational trauma and the experiences of intergenerational survivors such as Tania Percival and Rose Victoria Adams, who appeared before me so that I could hear how they, as children of residential school and boarding home survivors, struggled to cope and accept events that took place before they were even born, and how they now stand with their parents to help them heal.
[20] However, there were also rays of hope: Mr. Weistche and others spoke of having been able to tame the beast of alcohol and drug abuse and, through sheer strength of character, resilience and the assistance of others they sought out, becoming substance-free, coming to terms with their past, better understanding their own sense of self-worth and, in many cases, being able to finally graduate from college or university—the healing process continues; they mentioned being able to find employment later in life, often within their Indigenous communities, of becoming Hereditary Chiefs of their communities and counsellors to those still suffering from the experiences of the Indian Boarding Home Program and the Residential School program. Others spoke of devoting their lives to learning traditional songs, dances, and cultural ritual and rites, of taking in Indigenous children themselves to assist and guide them on their path towards a better life. And others spoke of how lucky they were to have been part of the lives of their children, to wake them up in the morning, to have supper with them in the evening, and finally, after years on the path of healing, to be able to be together with their parents, children and grandchildren to enjoy the milestones of their lives and communities; little things that many of us take for granted with our own families and communities.
[21] I mention Mr. Weistche, the representative plaintiff for the Quebec Subclass, in particular because since the issuance of the Approval Order, Mr. Weistche has passed away. No doubt his memory will live on, and his courage, strength, leadership and tenacity in seeking justice for boarding home survivors will forever be a part of his legacy, as it will for Reginald Percival, Allan Medrick McKay, Iona Teena McKay and Lorna Watts, all representative plaintiffs in their own right.
[22] Individuals such as Louise Mayo spoke as a member of the Family Class; she has been working in the area of First Nations health and mental health development. She also has extensive experience working in communities, including in the implementation of the Day Schools settlement (McLean v Canada, 2019 FC 1075 [McLean]). As part of the lessons learned from that process, she noted that it is important to minimize re-traumatization of victims in the claims process and to prioritize building a relationship of trust with them. Those working on the implementation of the Settlement Agreement need proper and compassionate training, a code of ethics, abidance by rules of confidentiality, and knowledge of First Nations and Inuit communities. She spoke of the importance of the Claims Administrator being alive to issues such as those surrounding the availability of identity documents, jurisdictional issues on- and off-reserve, literacy skills of Class Members, and the development and implementation of protocols and best practices when working in communities.
[23] Individuals such as David Cheechoo also gave a message of hope, where truth starts with acknowledgement and where survivors are finding ways to heal together and survive as a nation. Mr. Cheechoo is encouraged with how First Nation cultures are slowly being embraced, and in how reconciliation is breaking down walls so that survivors can live free from hatred and hostility, thus breaking the cycle of pain and suffering. Mr. Cheechoo was also supportive of the Settlement Agreement as a step towards truth and reconciliation between Indigenous Peoples and Canada.
[24] I also had the benefit of learning from Dr. Matthew Coon Come, a member of the Cree Nation of Mistissini, former Grand Chief of the Grand Council of the Crees, former National Chief of the Assembly of First Nations, and a residential school and boarding home survivor; I understand from Class Counsel that Dr. Coon Come’s experience with the difficulties encountered with the implementation of past settlement agreements of this kind—lessons learned from the implementation of the IRSSA, the Day Schools settlement, the Day Scholars settlement (Gottfriedson v Canada, 2021 FC 988), the Sixties Scoop settlement and the Band Reparations settlement (Tk’emlúps te Secwépemc First Nation v Canada, 2023 FC 327)—was helpful and informed the structure and substance of what eventually became the Settlement Agreement.
[25] Dr. Coon Come expressed his support for the Settlement Agreement but asked that, in moving forward, sufficient thought be given to how the Class Members would be advised of the settlement through the notice program and how they would complete and file their claims through the claims process, including estate claims. In the view of Dr. Coon Come, these two issues more often than not determine the success of any settlement and whether the settlement benefits the class members as a whole.
[26] Regarding the notice program, Dr. Coon Come highlighted to the Court the importance of issuing the notice of the settlement in plain language, in English, French, and the most commonly spoken Indigenous languages, both online and on paper. He also recommended that notice of the settlement be given periodically, at the beginning of the claims period, during the claims period, six months before the end of the claims period and three months before the end of the claims period. Notices should include the contact information of individuals who can assist Class Members in preparing their claims; it is key that the message of the settlement be received across the country, in particular in remote communities.
[27] Dr. Coon Come also shared his concerns about the accessibility and use of the claims forms and process; he recommended that the claims application be published in plain language, and be available online and on paper for those who do not have access to computers or reliable Wi-Fi connections in their remote communities (for example, printed claims forms inside self-addressed stamped envelopes should be considered). Dr. Coon Come stressed the importance of keeping in mind that, although the claims forms are being prepared by the Claims Administrator with an eye on administrative efficiency, the forms are being prepared for the benefit of the Class Members.
[28] Regarding Category 2 claims, Dr. Coon Come also urged the parties to agree ahead of time on what type of evidence would be expected from claimants. Although the Settlement Agreement gives claimants the benefit of the doubt, it would be more useful to determine this issue in advance and seek Court input, rather than leaving it to be dealt with solely by the Claims Administrator. Dr. Coon Come reminded us that, as was the case in the Day School settlement, where the claims process was also entirely paper-based, the idea that it is easier for claimants to recount their stories on paper than through oral testimony is not always correct, as it is traumatic to recount these experiences in any format. Moreover, many claimants are not comfortable expressing their experiences in English or French and thus cannot adequately share their stories because of this language barrier; they therefore run the risk of having their claims refused or significantly discounted.
[29] Dr. Coon Come also raised the complicated issues surrounding estate claims, for example, that many communities lack banking institutions, thus making it difficult to open estate bank accounts to receive claims cheques. As well, Dr. Coon Come stated that Indigenous claimants who live on reserve often pass away without a will, in which case their assets are administered by Indigenous Services Canada, which puts the Minister of Indigenous Services in a conflict of interest. Dr. Coon Come suggested following the example set out in the Day Scholars settlement, whereby representation of the estate was undertaken by independent lawyers so as to avoid such a conflict.
[30] Dr. Coon Come also highlighted that, for a host of reasons, many claimants will likely hire independent lawyers to assist them with navigating the claims process, in particular for the more rigorous Category 2 claims. Individual counsel will have to help claimants in person; communication over the telephone is not ideal for discussing traumatic experiences, and videoconferencing is not reliable owing to poor network connections in smaller communities. Considering the high travel costs in northern Canada due to the remoteness of some fly-in communities and the time required to assist claimants—often with multiple interviews—individual counsel fees will quickly add up. For this reason, Dr. Coon Come believes that the presumptive cap on legal fees of 5% of the Category 2 compensation may be undervaluing the need for outside counsel.
[31] Finally, Dr. Coon Come spoke in support of having resources for claimants throughout the process and giving Class Members access to Resolution Health Support Workers [RHSWs], who are already present in many First Nation and Inuit communities. This would replicate the process in the Day Schools settlement, where claimants were offered telephone hotline services to help them deal with the traumatizing experience of presenting a claim; such services would be a welcome initiative according to him.
IV. Key Terms of Settlement Agreement
[32] Canada acknowledges the unique and difficult legacy of the Indian Boarding Home Program and the importance for the representative plaintiffs, the Class Members and their families, and for all Canadians as part of truth and reconciliation, of coming to an agreement with respect to the underlying class proceeding. For my part, I am satisfied that the structure of the Settlement Agreement minimizes to the extent possible the risk of re-traumatization and creates an atmosphere that encourages Class Members to come forward and tell their stories. It was the intention of the parties that the environment created by the Settlement Agreement be affirming, in that it acknowledge the trauma experienced by the Class Members and provide an opportunity for them to tell their stories on the path to reconciliation and healing. As outlined in the preamble of the Settlement Agreement, the intent of the settlement is to reach a fair, comprehensive and lasting settlement of the claims related to the Indian Boarding Home Program, while promoting healing, education, commemoration and reconciliation. This Settlement Agreement is the product of lessons learned from similar past class action settlements and an improvement of those past settlements in many ways.
[33] Some will say that the Settlement Agreement is not perfect, and it is not; however, I consider it to be fair, reasonable, in the best interests of the class as a whole and within the zone or range of what is considered a reasonable outcome (McLean at para 65; Tataskweyak Cree Nation v Canada (Attorney General), 2021 FC 1415 at para 63). In acknowledging the importance of the issues raised by Dr. Coon Come, Class Counsel reiterated that much thought has been given to those issues in the development of the Settlement Agreement, and it is believed that the concerns have been reasonably addressed, to the extent reasonably possible under the circumstances.
[34] The key terms in this Settlement Agreement are set out below.
A. Eligibility
[35] I have already set out who the Primary Class and Family Class Members would be; as well, to be eligible, a claimant must have been alive on July 24, 2016. Eligibility for compensation is events-based rather than harm-based. As mentioned, individuals placed in the Indian Boarding Home Program during the class period are deemed to be entitled to compensation and those placed after June 30, 1992 will be entitled to compensation if they can establish that they were placed before the transfer of responsibility for Indigenous education from Canada to an Indigenous governing body. The decision to adopt a global approach to class membership and eligibility was informed by past experiences with similar class actions. Having a single, clear time frame avoids confusion for Class Members (McLean at para 60).
[36] It would seem that a transfer of responsibility for Indigenous education from Canada to the Indigenous groups took place in most individual cases. Given the paucity of documentation confirming the date on which this occurred in the case of each Class Member, the deeming provision is a vital improvement over past settlements of this kind, as it avoids most Class Members having to prove what may be difficult if not impossible to establish. I appreciate that deeming periods by their nature mean that some claimants do not make the cut and must then establish, so as to receive compensation, that they were placed in a private home for purposes of schooling before the transfer took place. However, I agree with Class Counsel that this global approach to class membership is simpler than, for example, the experience of the IRSSA, which included long lists of institutions with varying dates of eligibility; a single timeframe provides greater clarity for Class Members who can determine immediately whether they are eligible. From what I understand, based on the documentation and historical research conducted by the parties, instances where the transfer of responsibility to an Indigenous governing body was not completed by 1992 are expected to be rare. In any event, the Settlement Agreement provides for an Exceptions Committee to address theses situations. Although not perfect, I am satisfied, given the record and representation of counsel, that the period of September 1, 1951, to June 30, 1992, is reasonable.
[37] The estates of Primary Class Members are eligible for individual compensation if the Class Member died on or after July 24, 2016, which is two years before the underlying action was filed. Where there is an estate executor, the matter is straightforward and the executor may apply for compensation on behalf of deceased Primary Class Member, assuming a claim had not already been filed by the Primary Class Member before their death. If there is no estate executor—an issue identified by Dr. Coon Come—the compensation to which the deceased Primary Class Member would have been entitled under this Settlement Agreement will be paid in accordance with the estates claims protocol that I approved on April 29, 2024. It is my understanding that the estate claims protocol was finalized only after the close of the claims period in the Day Scholars settlement, thus allowing the protocol to be developed building upon the experience of that settlement.
[38] I appreciate that for Canada, as asserted by counsel, dealing with estate issues is complicated in the context of a national class, as estate issues are primarily under provincial jurisdiction. Canada has been working towards a simplified process so that the heirs of survivors who pass away intestate have the opportunity to make a claim even without an often expensive and cumbersome probate process (an example is the process developed in the Day Scholars settlement). I am satisfied that the parties recognize this issue, as highlighted by Dr. Coon Come, and will work to make the process as simple and straightforward as possible within what is legally permitted. As for the potential conflict in having Indigenous Services Canada administer, under the Indian Act, the estates of Class Members who pass away intestate, I understand from counsel that Canada recognizes the potential for conflict and has a process in place to appoint an independent claims administrator so as to address the issue, a process that has been used, for example, in the Day Schools settlement to remove the potential for or appearance of conflict.
B. Compensation and Support
[39] There are two categories of compensation under this Settlement Agreement for individual claimants. Category 1 provides compensation in the amount of $10,000 to Class Members for loss of culture and loss of connection to family and community as a result of being placed by Canada in the Indian Boarding Homes Program. This category of compensation is available to all Class Members simply upon verification of class membership; the form is simple and does not require lengthy submissions from Class Members, thus minimizing re-traumatization as much as possible. It also provides for prompt payment of compensation, thereafter giving the time needed to the Class Members to address what will in most cases be a much more emotionally difficult process of preparing submissions for Category 2 compensation.
[40] Category 2 provides five additional levels of compensation from $10,000 to $200,000 for claims of abuse, with the level of compensation increasing with the seriousness of the incident in accordance with a compensation grid based on the compensation categories in the Day Schools settlement but with changes for simplicity and efficiency, focusing on incidents rather than proof of harm. This will be a difficult and emotional process; however, it is based solely on documents, which the claimants m