The same day the federal government was in Federal Court looking to halt a human rights tribunal ruling ordering compensation for First Nations children apprehended in purposely underfunded child welfare system, Canada announced outside the court it would no longer fight certification of a class-action lawsuit also involving many of the same children.
Four days later the Federal Court ruled against pausing the Canadian Human Rights Tribunal’s compensation ruling.
The federal government has now flip-flopped on certification saying – two months later – it will now fight it.
“We view that as a major setback and it’s a major disappointment,” said David Sterns, of Sotos Class Action, one of three firms handling the action.
“They’ve served materials to oppose certification, which is inconsistent with what they said publicly.”
Justice department lawyers served notice last Thursday after discussions over the last two months failed to reach an agreement on terms of certification, said Sterns.
However, Sterns said the terms simply set the boundaries going forward, either towards a resolution or trial.
“It’s just an agreement that these people may be entitled to compensation,” he said. “That’s why this really should have happened by now. There’s no need for this.”
A spokesperson for Indigenous Services Minister Marc Miller confirmed both sides had been in talks.
“We are asking for additional time to reach these terms, given the significance of this matter,” said Vanessa Adams in an email. “As we have said, we must get this right. We continue to work with all parties to move this important matter forward.”
However, Sterns said any further delay risked losing a court date in September to hear arguments over certification.
“We’re getting close to when we would need to push back the date in September and we’re not prepared to do that. We made it clear to them they need to fish or cut bait by a certain period and if they didn’t we were pushing ahead, so they knew that date was coming and they let it go by,” he said.
NDP MP Charlie Angus believes something else has been going on the entire time.
“It was totally a ploy. This was a cynical ploy,” said Angus, in a telephone interview Monday, referring to the timing of when Miller and Justice Minister David Lametti released a joint-statement Nov. 25 saying the federal government wouldn’t fight certification, while Justice department lawyers argued in Federal Court the tribunal’s order needed to paused.
“They were trying to manipulate the Federal Court into thinking that maybe there was another process that they could go to, but they had no intention of letting that other process happen. That’s what’s become clear.”
The tribunal case involves children apprehended from 2007 to present day and ordered Canada on Sept. 6 to pay each victim $40,000.
Court records filed by Canada suggest if it were to comply with the order as it stands it would have to pay out at least $5 billion in 2020, with the number rising to approximately $8 billion by 2026 because of the rising number of expected apprehensions.
APTN News has previously reported the Trudeau government wants to shepherd in a settlement package like it negotiated with ’60s Scoop and residential Day School survivors during its first term. They mirror the Indian Residential School Settlement Agreement that provided survivors with common experience payments and, depending on the severity of the abuse suffered, survivors could qualify for more money.
This means dealing directly with survivors and cutting out organizations, according to Crown-Indigenous Relations Minister Carolyn Bennett based on a recorded conversation filed in Federal Court last fall by Cindy Blackstock, who first filed the human rights complaint, along with the Assembly of First Nations, in February 2007 eventually winning Jan. 26, 2016.
The class-action goes back to 1991, which is the cut off date for the ’60s Scoop survivors.
While Blackstock previously said she has been open to discussing joining human rights case with the class-action they are two different matters.
“The Canadian Human Rights Act doesn’t stop anybody from getting additional funds through the class-action if that is the way it worked out. It almost seems like Bennett wants to reduce the amount,” Blackstock said last October.
Because the Federal Court didn’t pause the compensation order, both sides were expected to provide the tribunal with evidence of how to proceed with compensation Jan. 29.
It’s now been pushed back to Feb. 21.
“I hope the feds have a position by then,” said Blackstock, in an email Monday but didn’t elaborate.
As for the certification fight: “Very disappointing to hear the reversal on the class action,” she said.
The class-action was filed in March 2019 and seeks $6 billion in damages. More information can be found here.