Tk'emlúps te Secwépemc First Nation v. Canada

Tk'emlúps te Secwépemc First Nation v. Canada
Court (s) Database
Federal Court Decisions
Date
2023-03-09
Neutral citation
2023 FC 327
File numbers
T-1542-12
Notes
Digest
Decision Content
Date: 20230309
Docket: T-1542-12
Citation: 2023 FC 327
Ottawa, Ontario, March 9, 2023
PRESENT: Madam Justice McDonald
CLASS PROCEEDING
BETWEEN:
CHIEF SHANE GOTTFRIEDSON, on behalf of the
TK’EMLUPS TE SECWÉPEMC INDIAN BAND and the
TK’EMLUPS TE SECWÉPEMC INDIAN BAND, and
CHIEF GARRY FESCHUK, on behalf of the SECHELT INDIAN BAND
and the SECHELT INDIAN BAND
Plaintiffs
and
HIS MAJESTY THE KING IN RIGHT OF CANADA
Defendant
ORDER AND REASONS
Table of Contents
I. Overview 3
II. Background 4
III. Settlement Approval Hearing 7
IV. Terms of the Settlement Agreement 9
V. Issues 12
VI. Analysis 12
A. Release Provisions in the Settlement Agreement 12
B. Is the Settlement Fair and Reasonable? 19
(1) Legal Principles 19
(a) Likelihood of Recovery or Success 20
(b) The Amount of Pre-Trial Work Including Discovery, Evidence or Investigation 22
(c) Settlement Terms and Conditions 24
(d) Future Expense and Likely Duration of Litigation 26
(e) Expressions of Support and Objections 26
(f) Presence of Good Faith and Absence of Collusion 30
(g) Communications with Class Members during Litigation 31
(h) Recommendations and Experience of Counsel 32
VII. Conclusion 32
Schedule A– Settlement Agreement 40
Schedule A – Second Re-Amended Statement of Claim, filed February 11, 2022 65
Schedule B – Certification Order, June 18, 2015 91
Schedule B.1 – September 24, 2021 Order (order only) + Schedule G of the Settlement Agreement 112
Schedule B.2 – February 8, 2022 Order (order only) 126
Schedule C – List of Opted in Band Members 132
Schedule D – Investment Policy 151
Schedule E – Disbursement Policy and Disbursement Formula 153
Schedule F – The Four Pillars 156
Schedule B – Plan for Disseminating Notice of the Settlement Approval 160
Schedule C – Notice of Settlement Approval (English and French) 163
I. Overview [1] The parties ask the Court to approve the Settlement Agreement reached in this long-standing class proceeding, seeking reparations for the loss of language and culture caused to Indian Bands by the Residential Schools system. The purpose of the Settlement Agreement is outlined as follows at clause M:
The Parties intend there to be a fair and comprehensive settlement of the claims of the Band Class that aligns with Canada’s desire to ensure funding to support healing, wellness, education, heritage, language, and commemoration activities and which promotes the Four Pillars developed by the Representative Plaintiffs:
a. Revival and protection of Indigenous languages;
b. Revival and protection of Indigenous cultures;
c. Protection and promotion of heritage; and
d. Wellness for Indigenous communities and their members.
[2] With the consent of the Defendant Canada, the Representative Plaintiffs ask the Court to approve a settlement that has been reached for the benefit of the 325 Band Class members from across Canada who chose to opt-in (i.e. join) to this class proceeding.
[3] The Settlement Approval Hearing was held in-person in Vancouver, British Columbia on February 27 and 28, 2023. This hearing was also broadcast virtually via Zoom to allow Band Class members to observe and speak to the Settlement Agreement if they wished. The Court heard from a number of representatives of Band Class members both in-person and virtually.
[4] This settlement has overwhelming support from the Representative Plaintiffs, who have been involved in the litigation throughout. Many other Band Class members also expressed support for the settlement. Class Counsel and legal counsel for Canada both noted that neither had seen such unanimous support for a class action settlement proposal before in their careers.
[5] The only objection and concern expressed regarding the settlement related to the wording of the release in the Settlement Agreement. I will specifically address this issue below.
[6] For the reasons that follow, and despite the objection to the release language, I am satisfied that the settlement is fair, reasonable, and in the best interests of Band Class members. The Settlement Agreement is therefore approved.
II. Background [7] In 2015, the Truth and Reconciliation Commission concluded:
For over a century, the central goals of Canada’s Aboriginal policy were to eliminate Aboriginal governments; ignore Aboriginal rights; terminate the Treaties; and, through a process of assimilation, cause Aboriginal peoples to cease to exist as distinct legal, social, cultural, religious, and racial entities in Canada. The establishment and operation of residential schools were a central element of this policy, which can best be described as “cultural genocide”.
Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada, page 1.
[8] In 2010, Chief Gottfriedson and Chief Feschuck took action to advocate for the rights of Day Scholars and First Nation communities who had been excluded from the previous Residential School settlements. They composed a legal team and in August 2012, filed this class proceeding.
[9] In what has proven to be a visionary move, a claim was advanced for the loss of culture and language rights of Indian Bands who either had a Residential School in their community or had members of their community who attended a Residential School between 1920 and 1997.
[10] Following a contested certification hearing, on June 18, 2015, Justice Harrington certified this action as a class proceeding for the benefit of three classes: the Survivor Class, the Descendant Class, and the Band Class (Gottfriedson v Canada, 2015 FC 706 and Gottfriedson v Canada, 2015 FC 766 [Certification Order]).
[11] In keeping with the Calls to Action outlined in the Truth and Reconciliation Report, Canada’s litigation strategy evolved. In the spirit of reconciliation, the parties undertook intensive settlement negotiations in 2019.
[12] In June 2021, the parties negotiated a settlement of the Survivor Class and Descendant Class claims. On September 24, 2021, the Court approved the settlement agreement between Canada and the Survivor and Descendant Classes for the loss of culture and language suffered by those who attended Residential Schools as Day Scholars between 1920 and 1997 (Tk'emlúps te Secwépemc First Nation v Canada, 2021 FC 988).
[13] This partial settlement of the class proceeding left the Band Class claim unresolved and the parties pressed forward with litigation.
[14] Band Class members were required to opt-in to the class action lawsuit. The deadline for Band Classes to opt-in was June 30, 2022, by an Order of June 15, 2022 (unreported). There are 325 Band Class members. The Band Class members list is found in Schedule C of the Settlement Agreement which was amended to remove a duplicate entry by an Order of January 21, 2023 (Tk'emlúps te Secwépemc First Nation v Canada, 2023 FC 106 [Notice Order]). The corrected Band Class members list is attached to the Order dated January 21, 2023.
[15] The Common Issues Trial for the Band Class claims was scheduled to begin on September 12, 2022, and continue for 48 days. The claim was bifurcated, with the damages phase of the Trial to proceed at a later date.
[16] At the Trial’s opening on September 12, 2022, the parties requested a brief adjournment and on September 20, 2022, the Trial was adjourned sine die to allow the parties to pursue settlement negotiations.
[17] On January 18, 2023, the parties signed the proposed Settlement Agreement of the Band Class claims.
[18] On January 21, 2023, the Court approved the Notice Plan [Notice] for the distribution to Class members of the proposed Settlement Agreement and the Settlement Approval Hearing, scheduled to begin on February 27, 2023 (Notice Order).
[19] This Notice was sent to the administrative and political offices of each of the 325 Band Class members. Class members were given until February 20, 2023 to deliver statements of support or objection to Class Counsel.
III. Settlement Approval Hearing [20] The following Affidavits were filed in support of this Motion:
Affidavit of Peter Grant, co-Class Counsel, sworn on February 20, 2023;
Affidavit of Chief Shane Gottfriedson, former Chief of Tk’emlúps te Secwépemc Indian Band, Representative Plaintiff for the Band Class, affirmed on February 21, 2023;
Affidavit of Chief Garry Feschuk, former Chief of shíshálh Nation, formerly known as the Sechelt Indian Band, Representative Plaintiff for the Band Class, affirmed on February 20, 2023;
Affidavit of Dr. Matthew Coon Come, former Grand Chief of the Council of Crees (Eeyou Istchee), affirmed on February 20, 2023;
Affidavit of Jeanine Alphonse, law clerk at Waddell Phillips Professional Corporation, co-Class Counsel, affirmed on February 22, 2023; and
Affidavit of Garima Dwivedi, Assistant Deputy Minister of the Resolutions and Partnerships Sector, Department of Crown-Indigenous Relations and Northern Affairs Canada, affirmed on February 23, 2023.
[21] The Court also received written submissions from the following Band Class members prior to the Settlement Approval Hearing: Elsipotog First Nation, Star Blanket Cree Nation, Taku River Tlingit First Nation, and Tootinaowaziibeeng Treaty Reserve #292, who all expressed support for the settlement.
[22] At the Settlement Approval Hearing, Neskonlith Indian Band, Penelakut Tribe, and Ermineskin Cree Nation provided written statements. Class Counsel also informed the Court of communications received from Nisichawayasik Cree Nation and Nekaneet First Nation in support of the Settlement Agreement.
[23] On February 21, 2023, shortly before the Settlement Approval Hearing, Wauzhushk Onigum Nation (Rat Portage) #153 [Wauzhushk Onigum Nation] filed a Motion seeking an amendment to the Certification Order to allow them to exercise the option to opt-out of the Settlement Agreement within 12 months. Wauzhushk Onigum Nation also opposed the settlement based on the language of the release and the lack of an opt-out provision at the settlement stage. This Motion and the objection were withdrawn by legal counsel for Wauzhushk Onigum Nation during the Settlement Approval Hearing.
[24] During the Settlement Approval Hearing, the Court heard oral submissions from the following representatives for Band Class members:
Former Grand Chief Dr. Matthew Coon Come, Grand Council of the Crees
Former Chief Shane Gottfriedson, Tk'emlúps te Secwépemc
Former Chief Garry Feschuk, shíshálh Nation
Kúkpi7 Rosanne Casimir, Tk'emlúps te Secwépemc
Chief Michael Starr, Star Blanket Cree Nation
Kukpi7 Irvin Wai, Neskonlith Indian Band
Councillor Joan Manuel-Hooper, Neskonlith Indian Band
Chief Cody Thomas, Enoch Cree Nation
Chief Greg Gabriel, Penticton Indian Band
Councillor and former Chief Craig Makinaw, Ermineskin Cree Nation
Collin Wildcat, Ermineskin Cree Nation
Alice Morgan, Hagwilget Village
Robert Sam, Penelakut Tribe
Bonnie Missens K.C., Pasqua First Nation
Oliver Pulleyblank, legal counsel for Wauzhushk Onigum Nation
Chief Ramona Sutherland, Constance Lake First Nation
Chief Michelle Edwards, Cayoose Creek Indian Band
IV. Terms of the Settlement Agreement [25] Canada will pay $2,800,000,000.00 [the Fund] to fully and finally resolve the Band Class claims, pursuant to paragraph 24.01 of the Settlement Agreement.
[26] By way of overview, the opening paragraphs of the Settlement Agreement state:
A. Canada and certain religious organizations operated Indian Residential Schools in which Indigenous children, their families, and communities suffered harms.
B. Two primary objectives of the Indian Residential Schools system were to remove and isolate Indigenous children from the influence of their homes, families, traditions and cultures, and to assimilate them into the dominant culture.
C. The consequences of the Indian Residential Schools system were profoundly negative, and this system has had a lasting and damaging impact on Indigenous survivors, their families, and communities.
[27] The objectives of the settlement are noted in clause M, which set out the Four Pillars of the Settlement Agreement:
a. Revival and protection of Indigenous languages;
b. Revival and protection of Indigenous cultures;
c. Protection and promotion of heritage; and
d. Wellness for Indigenous communities and their members.
[28] The objectives of the settlement will be facilitated by the creation of an Indigenous led and Indigenous controlled not-for-profit entity:
21.01 After the signing of this Agreement, but before the Implementation Date, the Plaintiffs will cause to be incorporated a not-for-profit entity under the Canada Not-for-profit Corporations Act, SC 2009, c. 23, or analogous federal legislation or legislation in any of the provinces or territories (the legislation pursuant to which the not-for-profit entity is incorporated, including any amendments thereto or replacements thereof, is herein referred to as the “Governing Corporate Statute”) to act as trustee of the Trust.
21.02 The not-for-profit entity will be independent of the Government of Canada.
21.03 The not-for-profit entity will have as its purposes the Four Pillars, which are described in more detail in Schedule F.
[Emphasis in original].
[29] The not-for-profit entity will establish a trust fund [Trust], which is outlined in sections 22.01-22.03 as follows:
22.01 The not-for-profit entity will establish a Trust and as trustee under the Trust, the not-for-profit entity will receive, hold, invest, manage, and disburse the Fund for the benefit of the Band Class Members in accordance with this Agreement, the terms of the Trust as set out in a written trust agreement signed by the not-for-profit entity to indicate its acceptance of the Trust and the duties and obligations of trustee, and in accordance with the Investment Policy and Disbursement Policy attached as Schedules D and E.
22.02 The not-for-profit entity shall be the sole trustee of the Trust.
22.03 The duties and responsibilities of the directors of the not-for-profit entity will be:
a. to establish the Trust;
b. to invest the Fund having regard to the Investment Policy;
c. to disburse the Fund to Band Class Members in accordance with the Disbursement Policy; …
[30] The not-for-profit entity will be responsible for distributing the Fund to the Band Class members in accordance with the Disbursement Policy, set out in Schedule E of the Settlement Agreement.
[31] The Disbursement Policy sets out the entitlement of each Band Class member under the Settlement Agreement. Each Band Class member is entitled to the following disbursements:
a. Planning Funds: Upon receipt of the money provided for in this Agreement, the Trust will disburse an initial amount of $200,000 to each Band for the purposes of developing a plan to carry out one or more of the objectives and purposes of the Four Pillars;
b. Initial Kick-Start Funds: Upon receipt and review of a plan from a Band, the Trust shall disburse the Initial Kick-Start Funds, which shall be equal to the Band’s proportionate share of $325,000,000, with 40% attributable for base rate, with the remaining 60% to be used to adjust for population. The base rate is an equal amount payable to each Band. The Board will determine an appropriate adjustment for remoteness for the Initial Kick-Start Funds, with any such funds required to account for remoteness being in addition to the $325,000,000, and taken from capital.
c. Annual Entitlement: Each Band will receive a share of annual investment income that is available for distribution. Each Band’s Annual Entitlement will be based on the Disbursement Formula. The Trust may, at its discretion, choose not to disburse all the income in any given year in order to ensure sufficient funding for years in which there is less income due to market conditions.
[Emphasis in original]
[32] If the Court approves the Settlement Agreement, Canada will be released from liability relating to the Band Class members’ claims in this class proceeding.
V. Issues [33] The primary issue is whether the Settlement Agreement is fair and reasonable. The only objection to the settlement relates to the release language. I will address this issue first.
VI. Analysis A. Release Provisions in the Settlement Agreement [34] As noted, the only objection or concern raised was in relation to the release language used in the Settlement Agreement. Both Wauzhushk Onigum Nation and Constance Lake First Nation objected to the scope of the release language, although Wauzhushk Onigum Nation withdrew its objection at the Settlement Approval Hearing. The concern about the release language arose in the face of the ongoing and devastating discovery of unmarked graves and burial sites at former Residential School sites. The worry is that the release language may prevent future efforts to hold Canada to account for these tragic discoveries.
[35] This issue was top of mind to the parties as they worked out the terms of the settlement before the Court. I note that one of the Representative Plaintiffs – Tk'emlups Te Secwepemc Indian Band – was the site of Kamloops Indian Residential School, where the remains of 215 children were discovered in May 2021. This tragic discovery brought national attention to unmarked graves at former Residential Schools across Canada.
[36] The release provisions in the Settlement Agreement state:
27.01 Each Band Class Member (“Releasor”) fully, finally and forever releases His Majesty the King in Right of Canada, its servants, agents, officers and employees, from any and all actions, causes of action, common law, international law, Quebec civil law, and statutory liabilities, contracts, claims, and demands of every nature or kind and in any forum (“Claims”) available against Canada that were asserted or could have been asserted in relation to those asserted in the Second Re-Amended Statement of Claim regarding the purpose, creation, planning, establishment, setting up, initiating, funding, operation, supervision, control and maintenance of Residential Schools, the obligatory attendance of Survivors at Residential Schools, the Residential Schools system, and/or any Residential Schools policy or policies (the “Release”) and all such claims set out herein are dismissed on consent of the Parties as if determined on their merits.
27.02 For greater clarity, and without limiting the forgoing, the Claims do not relate to, or include any claims regarding, children who died or disappeared while in attendance at Residential School.
27.03 For greater clarity and without limiting the foregoing, the Release does not settle, compromise, release or limit in any way whatsoever any claims by the Releasors, in any other action, claim, lawsuit, or complaint regarding a declaration of Aboriginal or Treaty rights, a breach of Aboriginal rights, a breach of Treaty rights, a breach of fiduciary duty, or the constitutionality of any provision of the Indian Act, its predecessors or Regulations, other than claims related to the purpose, creation, planning, establishment, setting up, initiating, funding, operation, supervision, control and maintenance of Residential Schools, the obligatory attendance of Survivors at Residential Schools, the Residential School system, and/or any Residential Schools policy or policies as set out in Section 27.01.
27.04 Except as provided herein, this Settlement Agreement does not settle, compromise, release or limit in any way whatsoever any claim by the Releasors against any person other than Canada. For greater clarity, and without limiting the foregoing, the Release cannot be relied upon by any Third Party, including any religious organization that was involved in the creation and operation of Residential Schools.
27.05 If any Releasor makes any claim or demand or takes any actions or proceedings, or continues such claims, actions, or proceedings against other person(s) or entities in relation to the allegations, matters or the losses or injuries at issue in the Action, including any claim against Provinces, Territories, other legal entities, or groups, including but not limited to religious or other institutions that were in any way involved with Residential Schools, the Releasor will expressly limit their claims so as to exclude any portion of loss for which Canada may be found at fault or legally responsible for, or that Canada otherwise would have been liable to pay but for this Release.
27.06 Canada may rely on this Release as a defence to any lawsuit by the Releasors that purports to seek compensation from Canada for anything released through this Agreement.
27.07 Each Releasor is deemed to have agreed, warranted, and represented that it is the holder of the collective rights to whom the duties are owed on behalf of their respective communities as asserted in the Second Re-Amended Statement of Claim.
27.08 Canada may rely on this Agreement as a defence in the event that any other individual, group, or entity (“Third Party”) pursues any action, claim, or demand for the claims or losses released by this Agreement and asserts that it, and not any Releasor, is the proper holder of the collective or community rights, is the community entity to whom the asserted duties were owed, or holds the authority to advance and release such claims, either because it is a sub-group within the Releasor entity or a larger entity to which the Releasor belongs, or is otherwise related, connected or derived.
27.09 If a court or tribunal determines that a Third Party, and not the Releasor, is the appropriate rights holder or otherwise owed the duties at issue, Canada may seek a set-off of the amounts paid to the Releasor through operation of this agreement.
27.10 The release provisions contained herein, revised as required for formatting only, will be included as terms of the Court Order approving the Settlement Agreement.
[Emphasis added].
[37] While section 27.02 specifically excludes any claims regarding children who died or disappeared while in attendance at Residential Schools, there was still concern that the release provisions are too broad.
[38] The Supreme Court of Canada recently provided direction on the interpretation of the scope of releases in Corner Brook (City) v Bailey, 2021 SCC 29 [Bailey]. The Supreme Court held “[t]here is no special interpretive principle that applies to releases” (Bailey at para 3). The Supreme Court held:
[35] Releases tend to have certain features that may give rise to careful interpretations. Contractual interpretation requires courts to give the words of a contract their ordinary and grammatical meaning, in a way that is consistent with the surrounding circumstances known to the parties at the time of contract formation: Sattva, at paras. 47-48. Sometimes the ordinary meaning of the words and the surrounding circumstances come into tension, and courts must decide whether to rely on the surrounding circumstances to refine the meaning of the words, or whether doing so would impermissibly overwhelm the words of the agreements, in which case the words must override: para. 57. This tension may more often arise when interpreting releases, for two reasons.
[36] First, as Cass observes, “A distinctive feature of releases is that they are often expressed in the broadest possible words”: p. 83 (footnote omitted). A general release, if interpreted literally, could prevent the releasor from suing the releasee for any reason, forever. While such a release may not be enforceable for other reasons (e.g., unconscionability), the circumstances may also often indicate that such extreme consequences are not what the parties objectively intended. As the Court of Appeal for British Columbia put it in Strata Plan BCS 327, “While releases signed in the course of a settlement of a dispute are often worded in a broad and general fashion, appearing to cover the end of the world, they must be considered in the context of the dispute”: para. 26. This context can serve as a limiting factor to the breadth of wording found in a release.
…
[43] Distinctions can be drawn between claims based on facts known to both parties (as in this case) and claims based on facts that were not known to both parties (as in Biancaniello). Such distinctions may be relevant when interpreting a release and assessing whether the claim at issue is the kind of claim the parties mutually intended to release. The ultimate question is whether the claim is of the type of claim to which the release is directed. This will depend on the wording and surrounding circumstances of the release in each case. Lord Bingham’s cautionary principle from Ali should be understood not as a rule of interpretation, but rather an observation as to the issues that releases will tend to give rise to given their subject matter. Any judicial tendency to narrow the meaning given to broad wording is not the function of any special rule, but rather a function of the context in which releases are given. Thus, the ordinary rules for contract interpretation set out in Sattva apply to releases as they do to other contracts.
[39] Specifically in the class proceeding context, the decision of the British Columbia Superior Court in Leonard v The Manufacturers Life Insurance Company, 2020 BCSC 1840 [Leonard] is instructive. In Leonard, an objection was raised arguing the release was too broad. In concluding the release did not “inappropriately forestall future claims” (at para 115), Justice Gomery noted, at paragraph 117:
I should observe that, so far as the class is concerned, the “Proceedings” are limited to the common issues. The release bars claims engaging the common issues, but not claims grounded in some other legal theory or cause of action, if there is any that could be advanced arising out of the same conduct. Such claims would not be claims grounded in “any conduct, act or omission which was or could have been alleged in the Proceedings”.
[40] Based upon Bailey and Leonard, the Court must consider the release language as against the surrounding circumstances including the claims advanced in the pleadings and the common issues certified. The language in the pleadings and the certified Common Questions informs the parameters and legal reach of the release provisions.
[41] Here, the release language in the Settlement Agreement is specifically crafted to only apply to the claims raised in the class proceeding. The claims are outlined in the Second Re-Amended Statement of Claim as:
2(i) … the damage or harm caused by the creation and implementation of Residential Schools and Residential Schools Policy to the educational, governmental, economic, cultural, linguistic, spiritual and social customs, practices and way of life, traditional governance structures, as well as to the community and individual security and wellbeing, of Aboriginal Persons.
…
27 The Class members have lost, in whole or in part, their traditional economic viability, self-government and laws, language, land base and land-based teachings, traditional spiritual practices and religious practices, and the integral sense of their collective identity.
[42] The Common Questions as certified by Justice Harrington in the Certification Order, in relation to the Band Class members, are as follows:
Through the purpose, operation or management of any of the Residential Schools during the Class Period, did the Defendant breach a fiduciary duty owed to the […] Band Class […] not to destroy their language and culture?
Through the purpose, operation or management of any of the Residential Schools during the Class Period, did the Defendant breach the cultural and/or linguistic rights, be they Aboriginal Rights or otherwise of the […] Band Class […]?
[43] During oral submissions, Class Counsel, Mr. Phillips confirmed that:
While 27.01 already, in my submission, would have captured that, in terms of not releasing those claims, 27.02 goes directly to the point because class action counsel, counsel for Canada, and the representative plaintiffs turned their minds specifically to that issue. And to use my phrase again for the second time, in a belt-and-suspenders way said is a matter of reinforcement no claim regarding or relating to missing or dead children is covered by the terms of the release 27.02.
For the same reason the churches and their liability, they were not part of this action. Early on a decision was taken to ensure that we could at least get -- during some people's lives, the lifetime, to the end of this case, the churches were not included. They were specifically excluded by the initial statement of claim. And our clients wanted to ensure that no release released the churches or could be taken to release the churches. And, again, well 27.01, given that the statement of claim was tailorized [sic] or what I would've -- what should have been called Gottfriedsonized, they remove reference to churches. That (inaudible) to 27.01 meant they were not going to be covered in any of that, but in 27.04 I believe it is -- 27.04. Again, belt-and-suspenders, we made sure on the instruction of our clients that that release would not cover or touch on the churches.
At the same time – and you'll see this at paragraph 60 of our submissions – one of our clients raised a concern about land claims. And again, our -- my view, 27.01, there's no land claim that could have arisen with respect to the claim as pleaded or which could have been pleaded in the context of what was there in the common issues of fact and law. But 27.03, belt and suspenders, was put in to make sure that no land claim could be compromised by the release.
[Emphasis added].
[44] Legal counsel for Canada, Mr. Henderson, also addressed this issue. As he noted, the parties negotiated the terms of the Settlement Agreement and carefully chose the language. At the Settlement Approval Hearing, Mr. Henderson expressly addressed the scope of the release and stated:
So let me say for the record and without qualification, that any other claim that may exist with respect to children who died or disappeared or with respect to unmarked graves or burial grounds, is not released in this settlement.
[45] In considering these surrounding circumstances, I am satisfied that the release provisions included in the Settlement Agreement do not release, impair, or otherwise restrict any claims that may be brought against Canada relating to unmarked graves or children who died or disappeared while attending Residential Schools.
[46] I accept that the release provisions were carefully crafted and will act as a bar to any claims based upon the same pleadings or the same common issues raised in this class proceeding. However, they will not act as a bar to claims grounded in another cause of action.
B. Is the Settlement Fair and Reasonable? (1) Legal Principles [47] Rule 334.29(1) of the Federal Courts Rules, SOR/98-106 provides that class proceedings may only be settled with the approval of a judge. The applicable test is “whether the settlement is fair and reasonable and in the best interests of the class as a whole” (Merlo v Canada, 2017 FC 533 at para 16 [Merlo]).
[48] The Court considers whether the settlement is reasonable, not whether it is perfect (Châteauneuf v Canada, 2006 FC 286 at para 7; Merlo at para 18). Likewise, the Court only has the power to approve or to reject the settlement; it cannot modify or alter the settlement (Merlo at para 17; Manuge v Canada, 2013 FC 341 at para 5).
[49] The factors to be considered in assessing the overall reasonableness of the proposed settlement are outlined in a number of cases (see Condon v Canada, 2018 FC 522 at para 19; Lin v Airbnb Inc, 2021 FC 1260 at para 22) and include the following:
Likelihood of recovery or success;
The amount of pre-trial work including discovery, evidence or investigation;
Settlement terms and conditions;
Future expense and likely duration of litigation;
Expressions of support and objections;
Presence of good faith and the absence of collusion;
Communications with class members during litigation; and,
Recommendations and experience of counsel.
[50] As noted in McLean v Canada, 2019 FC 1075 [McLean] at paragraph 68, in addition to the above considerations, the proposed settlement must be considered as a whole and it is not open to the Court to rewrite the substantive terms of the settlement or assess the interests of individual class members in isolation from the whole class.
[51] I will now turn to a consideration of these factors in relation to the proposed settlement in this case.
(a) Likelihood of Recovery or Success
[52] When this class proceeding was filed, the likelihood of the success was uncertain. The exclusion of the Survivor Class and Descendant Class claimants from the Indian Residential Schools Settlement Agreement [IRSSA] and the McLean settlement foretold Canada’s position on the viability of these claims. Then, the exclusion of the Band Class members from the settlement agreement reached on the Survivor Class and Descendant Class claims was yet another indication that the claims advanced would be a significant challenge to prove and would have to proceed to trial.
[53] This class proceeding raises novel and complex legal issues. None of the other class proceedings in relation to Residential Schools (IRSSA and McLean) addressed the concept of collective harm to the Indian Bands caused by the Residential Schools system.
[54] Class Counsel was in unchartered territory in advancing the claims on behalf of the Band Class members for loss of language and culture in relation to Residential Schools. Not only were there no comparator cases in Canada, but there were also no reported decisions addressing either collective claims or loss of language and culture claims in the Residential School context.
[55] Canada aggressively argued against certification, and after certification advanced a number of defences to the entire claim, including limitation defences. Following the settlement of the Survivor and Descendant Classes, Canada denied any breach of fiduciary duty to the Band Class members not to destroy their language or culture, and denied any breach of cultural or linguistic Aboriginal Rights.
[56] The passage of time and the historic nature of these claims is also a factor for consideration. Historic documentary evidence is difficult to amass. In order to succeed, the Plaintiffs had to demonstrate a uniform intent and pattern of conduct to intentionally extinguish Indigenous language and culture across Canada over a 77-year period by 23 different federal governments over 139 Residential Schools.
[57] According to Class Counsel, to their knowledge, this was the only action in Canada advancing a collective claim on behalf of Indigenous communities for harms suffered from Residential Schools. Advancing novel claims poses numerous challenges. There was no guarantee of success and the claim for damages presented a monumental challenge. Compounding this difficulty was the inherent challenge of litigating claims for historical wrongs.
[58] The Settlement Agreement provides certainty, recovery, and closure for the Band Class members. These results could not be guaranteed if the litigation were to proceed to trial.
(b) The Amount of Pre-Trial Work Including Discovery, Evidence or Investigation [59] Canada aggressively defended the claim. Prior to certification, Canada brought a number of procedural motions, including a Motion to stay the action pursuant to section 50.1 of the Federal Courts Act, RSC 1985, c F-7 and a Motion to bring third-party claims against a number of church entities for contribution and indemnity.
[60] In 2015, the Certification Motion was contested by Canada, requiring a four-day hearing. Every aspect of the claim advanced on behalf of the Band Class members was in issue and fully denied by Canada.
[61] The September 2022 Common Issues Trial was scheduled when settlement negotiations were undertaken. The Court granted the parties a one-week adjournment the day the Trial was set to begin, September 12, 2022, to pursue settlement discussions. The parties were successful in their negotiations and sought to adjourn the trial sine die in the second week of scheduled Trial time.
[62] This case was ready to proceed to Trial when the parties reached what ultimately became the settlement. Documentary disclosure was complete with Canada having disclosed some 120,000 documents. Experts had been retained and reports were filed with the Court. Examinations for discovery in writing and orally had taken place. The parties had filed pre-trial briefs. Tremendous effort and work had been undertaken to prepare these unique claims for Trial.
[63] As the Case Management Judge, I was well aware of the work that had been undertaken to have this claim ready to proceed to Trial. The responses to the written examinations of the Defendant were provided shortly before Trial and left a number of issues unresolved. This necessitated Motions to potentially subpoena the Prime Minister and Minister Marc Miller to testify on public statements.
[64] Canada also filed objections to the expert evidence amassed by the Plaintiffs on the grounds that the evidence was not admissible or was irrelevant. Canada also challenged the qualifications and independence of some of the experts.
[65] As the parties were ready for Trial, Class Counsel was in a fully-informed position to understand the challenges and risks in proceeding ahead with the claims. This allowed Class Counsel to approach settlement discussions with a clear understanding of the challenges they would face in proving the asserted claims.
(c) Settlement Terms and Conditions [66] An overview of the settlement terms and conditions are outlined above. The Settlement Agreement provides for the creation of a Trust to administer the $2.8 billion Fund. Each Band Class member will receive a one-time payment of $200,000. The Trust will disburse Kick-Start funds, equal to the Band’s proportionate share, adjusted for population and remoteness. Band Class members will also receive a share of annual investment income from the Fund, adjusted for population and remoteness.
[67] The Fund will operate for 20 years, after which the remaining funds will be disbursed to Band Class members based on proportionate shares.
[68] The Trust will be governed by a board of nine Indigenous directors [Board]. Band Class members will select eight board members and Canada will select one. The Board will have regional representation.
[69] The Settlement Agreement was designed to put control over the remediation of harms into the hands of Indigenous peoples. The top-down approach, where Canada determined the priorities, the funding available, and the approved uses for those funds, led to programs that were short term and ultimately unsuccessful. It was of considerable importance to the Representative Plaintiffs that the Trust be directed by Indigenous people and used to support initiatives chosen by the Class members themselves. Indigenous autonomy over the origin and content of language and culture revitalization programs is essential.
[70] The distribution of funds based on a Band Class member’s population and remoteness is a novel and important feature of this Settlement Agreement. In the past, compensation for settlements of historic rights claims by First Nations have typically been calculated using the Nation’s population on the date the agreement was signed, but do not account for future increases in population. This has been a significant point of contention for First Nations in negotiating settlements with Canada and continues to affect how settlement funds are subsequently dispersed to the Nation’s members. The approach adopted in this Settlement Agreement reflects attempts to learn from past experiences and design a Settlement Agreement that is better tailored to