Update on Class Action – May 26, 2005
To: Association for Survivors of Shubenacadie Residential School
From: John A. McKiggan
Date: May 26, 2005
Re: Update on Class Action
- Supreme Court of Canada Denies Government Appeal;
- Negotiations between Government and AFN;
- Class Action wins in Court of Appeal
- Native Form Fillers and ADR;
- Website Update.
1. Supreme Court of Canada Denies Government Appeal
In December 2004 the Ontario Court of Appeal approved a Class Action filed by former students of the Mohawk Indian Residential School . The Government appealed to the Supreme Court of Canada to try to stop the Ontario Class Action.
On May 12, 2005, the Supreme Court of Canada said the court would not hear the Government’s appeal.
The Ontario Class Action can now go ahead. Since many of the legal issues are the same in both lawsuits, we believe the court will make the same decision to allow the National Class Action to proceed. This is a very important decision for the National Class Action!
2. Negotiations between Government and AFN;
Recent reports in the newspapers and on television and radio have stated that the Government and the AFN have been meeting to try to negotiate a settlement for Residential school claims.
We believe the Government has started to negotiate with the AFN because of the success of the Class Action lawsuits.
We have advised the Government we want to participate in these negotiations on behalf of the survivors we represent across Canada . The lawyers representing the National Class Action on behalf of all survivors in Canada have not been invited to participate in these meetings. We have advised the Government that any deal the Government and the AFN make will not be binding on our clients because lawyers for the National Class Action and their clients have not been consulted and have not been invited to participate in negotiations.
We have asked the AFN to support the National Class actions goal of a court-supervised settlement to compensate all Residential School survivors so that the Government cannot change the rules later.
3. Class Action Wins in Court of Appeal:
In May of 2003 the Ontario Court of Appeal heard an appeal involving a Class Action lawsuit filed in Ontario on behalf of the Survivors of the Mohawk Residential School . Many of the legal issues in the Mohawk Class Action are the same as the National Class Action for Residential School Survivors across Canada .
On December 3 2004 the Ontario Court of Appeal released it’s unanimous decision allowing the Mohawk school class action to proceed. The Ontario Court of Appeal was very critical of the government ADR program:
“It is a system unilaterally created by one of the respondents in this action and could be unilaterally dismantled without the consent of the appellants. It deals only with physical and sexual abuse. It caps the amount of possible recovery… it does not compare favourably with a common trial.”
The Mohawk decision will have a huge impact on the National Class Action. We believe it is probable that the court will make the same decision in the National Class Action.
The National Class Action was filed on behalf of all survivors of residential schools across Canada , and their families. The National Class Action is seeking compensation for survivors for all the harms and effects suffered by survivors in the Residential Schools (including psychological, emotional, racial and cultural abuse). The National Class Action recommends that every person that attended Residential Schools receive a lump sum payment of $10,000.00 plus $10,000.00 per year of attendance. The National Class Action recommends that survivors have the option of a hearing to receive compensation for serious physical or sexual abuse.
4. Native Form Fillers and ADR:
We have been advised that some members of the Association for the Survivors of the Shubenacadie Indian Residential School have been approached by native groups apparently trying to get survivors to sign up for the Government ADR program. We recommend that survivors who have questions about the ADR call us directly!
The Ontario Court of Appeal was very critical of the Government ADR. We do not recommend that survivors participate in the ADR before talking to us directly about the benefits of the Class Action versus the ADR.
5. Website Update:
Our law firm website is being upgraded to include a section to update survivors on the status of the Residential School Class Actions. Our website address is www.apmlawyers.com.