Citation: 2018 FC 901
Ottawa, Ontario, August 2, 2018
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
JESSICA RIDDLE, WENDY LEE WHITE, and CATRIONA CHARLIE
and
ORDER
WHEREAS the Plaintiffs and the Defendant have amended the settlement agreement which was approved by the Honourable Justice Michel M.J. Shore on May 11, 2018;
UPON HEARING the motion made by the Plaintiffs, on consent, for an order: (a) certifying this action as a class proceeding for settlement purposes; (b) approving the Settlement Agreement; and (c) approving the notice of this settlement, the opt out and claims period and other ancillary orders to facilitate the Settlement;
AND UPON READING the joint motion record of the parties and the facta of the parties;
AND UPON BEING ADVISED of the Defendant's consent to the form of this Order;
AND WITHOUT ADMISSION OF LIABILITY on the part of the Defendant;
AND UPON HEARING AND READING the oral submissions of counsel for the Plaintiffs, counsel for the Defendant, all interested parties, including objections, written and oral;
AND UPON CONSIDERING THAT it is the intention of the parties and this Court that the appropriate level of legal fees are to be determined by each of this Court and the Superior Court of Ontario acting within their respective jurisdictions over the actions in their courts;
THIS COURT ORDERS THAT:
For the purposes of this Order, the following definitions shall apply:
(i)
“Approval Date”
means the date that this Order is made;(ii)
“Approval Orders”
means this order and the order approving the Settlement Agreement in Brown v Canada (Court File No. CV-09-00372025-00CP);(iii)
“Brown Class Members”
means members of the class proceeding in the Ontario Superior Court of Justice, Brown v Canada (Court File No. CV-09-00372025-00CP) who did not opt out of that proceeding;(iv)
“Canada”
means the Defendant, the Government of Canada, as represented in this proceeding by the Attorney General of Canada;(v)
“Class”
or“Class Members”
means
All Indian (as defined in the Indian Act) and Inuit persons who were removed from their homes in Canada between January 1, 1951 and December 31, 1991 and placed in the care of non-Indigenous foster or adoptive parents excluding any members of the class action in the Ontario Superior Court of Justice styled as Brown v. AGC with court file number CV-09-00372025CP.
(vi)
“Implementation Date”
means the latest of:
(i) the expiry of thirty (30) days following the expiry of the Opt Out Period;
(ii) the date following the last day on which a Class Member may appeal or seek leave to appeal either of the Approval Orders;
(iii) the date of a final determination of any appeal brought in relation to the Approval Orders, with respect to appeals regarding costs only.
(vii)
“Opt Out Period”
or“Opt Out Deadline”
means the period commencing on the Approval Date and ending ninety days after the date of this Order, during which a Class Member may opt out of this class proceeding, without leave of this Court;(viii)
“Proposed Class Actions”
means the proposed class proceedings listed in Schedule “C”;(ix)
“Releasees”
means individually and collectively, Canada, and each of the past, present and future Ministers of the federal government, its Departments and Agencies, employees, agents, officers, officials, subrogees, representatives, volunteers, administrators and assigns;(x)
“Settlement Agreement”
means the Settlement Agreement executed between the parties on November 30, 2017 attached as Schedule “A” to this Order as amended by the Amendment executed between the parties as of July 26, 2018 attached as Schedule “B” to this Order; and(xi)
“Settlement Fund”
means the settlement fund established pursuant to section 4.01 of the Settlement Agreement.
All applicable parties have adhered to and acted in accordance with the Order of this Honourable Court of January 11, 2018 relating to the provision of Notice of this hearing (“Notice Order”) and the procedures provided in the Notice Order constitute good and sufficient notice.
CERTIFICATION
This action is hereby certified as a class proceeding for the purposes of settlement pursuant to section 334.16(1) of the Federal Court Rules.
The Class is defined as:
All Indian (as defined in the Indian Act) and Inuit persons who were removed from their homes in Canada between January 1, 1951 and December 31, 1991 and placed in the care of non-Indigenous foster or adoptive parents excluding any members of the class action in the Ontario Superior Court of Justice styled as Brown v. AGC with court file number CV-09-00372025CP.
The representative plaintiffs hereby appointed are Wendy White, Jessica Riddle and Catriona Charlie and constitute adequate representative plaintiffs of the Class.
Klein Lawyers LLP, Koskie Minsky LLP and Merchant Law Group LLP are appointed as Class Counsel.
The claims asserted on behalf of the Class against the Defendant are: (a) negligence; and (b) breach of fiduciary duty.
For the purposes of settlement, this proceeding is certified on the basis of the following common issue:
Did the Defendant have a fiduciary or common law duty of care to take reasonable steps to protect the Indigenous identity of the Class Members?
The certification of this action is conditional on the approval of the Settlement Agreement in Ontario in accordance with section 12.01 of the Settlement Agreement. Should the Settlement Agreement be set aside, all materials filed, submissions made or positions taken by any party are without prejudice to any future positions taken by any party on a certification motion.
SETTLEMENT APPROVAL
The Settlement Agreement is fair, reasonable and in the best interests of the Plaintiffs and the Class Members.
The Settlement Agreement, which is expressly incorporated by reference into this Order, shall be and hereby is approved and shall be implemented in accordance with this Order and further orders of this Court.
The claims of the Class Members and the Class as a whole, shall be discontinued against the Defendant and are released against the Releasees in accordance with section 10.01 of the Settlement Agreement, in particular as follows:
(i) Each Class Member and his/her Estate Executor and heirs (hereinafter “Releasors”) has fully, finally and forever released Canada, her servants, agents, officers and employees, from any and all actions, causes of action, common law, Quebec civil law and statutory liabilities, contracts, claims and demands of every nature or kind available, asserted or which could have been asserted whether known or unknown including for damages, contribution, indemnity, costs, expenses and interest which any such Releasor ever had, now has, or may hereafter have, directly or indirectly arising from or in any way relating to or by way of any subrogated or assigned right or otherwise in relation to the Sixties Scoop and this release includes any such claim made or that could have been made in any proceeding including the Class Actions whether asserted directly by the Releasor or by any other person, group or legal entity on behalf of or as representative for the Releasor.
(ii) This Agreement does not preclude claims against any third party that are restricted to whatever such third party may be directly liable for, and that do not include whatever such third party can be jointly liable for together with Canada, such that the third party has no basis to seek contribution, indemnity or relief over by way of equitable subrogation, declaratory relief or otherwise against Canada.
(iii) For greater certainty, the Releasors are deemed to agree that if they make any claim or demand or take any actions or proceedings against another person or persons in which any claim could arise against Canada for damages or contribution or indemnity and/or other relief over under the provisions of the Negligence Act, R.S.O. 1990, c. N-3, or its counterpart in other jurisdictions, the common law, Quebec civil law or any other statute of Ontario or any other jurisdiction in relation to the Sixties Scoop, including any claim against provinces or territories or other entities for abuse while in care; then, the Releasors will expressly limit their claims to exclude any portion of Canada’s responsibility;
(iv) Canada’s obligations and liabilities under this Agreement constitute the consideration for the releases and other matters referred to in this Agreement and such consideration is in full and final settlement and satisfaction of any and all claims referred to therein and the Releasors are limited to the benefits provided and compensation payable pursuant to this Agreement, in whole or in part, as their only recourse on account of any and all such actions, causes of actions, liabilities, claims and demands.
This Settlement Agreement does not compromise any claims that Class Members have against any Province, Territory or any other entity, other than as expressly stated herein.
This Settlement Agreement does not affect the rights of:
(i) Class Members who opt out of a class action that is certified pursuant to this Settlement Agreement; or
(ii) Individuals who are not Class Members.
This Order, including the releases referred to in paragraph 12 above, and the Settlement Agreement are binding upon all Class Members, including those persons who are under a disability.
The Claims of the Class Members are dismissed against the Defendant, without costs and with prejudice and such dismissal shall be a defence to any subsequent action in respect of the subject matter hereof.
This Court, without in any way affecting the finality of this Order, reserves exclusive and continuing jurisdiction over this action, the Plaintiffs, all of the Class Members, and the Defendant for the limited purposes of implementing the Settlement Agreement and enforcing and administering the Settlement Agreement and this Order.
Save as set out above, leave is granted to discontinue this action against the Defendant without costs and with prejudice, and that such discontinuance shall be an absolute bar to any subsequent actions against the Defendant in respect of the subject matter hereof.
No person maybring any action or take any proceeding against the Administrator, the Foundation Table, the Exceptions Committee or the members of such bodies, the adjudicators, or any employees, agents, partners, associates, representatives, successors or assigns, for any matter in any way relating to the Settlement Agreement, the administration of the Settlement Agreement or the implementation of this judgment, except with leave of this Court on notice to all affected parties.
In the event that the number of persons who appear to be eligible for compensation under the Settlement Agreement who opt out of this class proceeding and the Ontario Action exceeds two thousand (2,000), the Settlement Agreement will be void and this judgment will be set aside in its entirety, subject only to the right of Canada, at its sole discretion, to waive compliance with section 5.09 of the Settlement Agreement.
Rule 334.21(2) does not apply to the plaintiffs in the proposed Class Actions listed in Schedule “C” and those plaintiffs are not excluded from this proceeding despite not having discontinued their parallel Class Actions prior to the Opt Out Deadline.
The fees payable to Class Counsel are hereby set at $37,500,000.00 ($37.5 million) in respect of legal fees plus applicable taxes, inclusive of disbursements, payable as follows:
(i) $12,500,000.00 to Klein Lawyers LLP;
(ii) $12,500,000.00 to Koskie Minsky LLP; and
(iii) $12,500,000.00 to Merchant Law Group LLP.
No fee may be charged to Class Members in relation to claims under this Agreement without prior approval of the Federal Court.
Within five (5) business days of the later of the Approval Orders, notice shall be given of this judgment, the approval of the Settlement Agreement, the Opt Out period and the claims period by the commencement of the Notice plan attached here to Schedule “D”, at the expense of Canada.
The Notice Plan provided for in paragraph 20 above satisfies the requirements of the applicable class proceedings law and this Court, and is the best notice practicable under the circumstances.
This Court may issue such further and ancillary orders, from time to time, as are necessary to implement and enforce the provisions of the Settlement Agreement and this Order.
Class Counsel shall report back to the Court on the administration of the Settlement Agreement at reasonable intervals not less than semi-annually, as requested by the Court and upon the completion of the administration of the Settlement Agreement.
The representative Plaintiffs Wendy White, Jessica Riddle, and Catriona Charlie shall each receive the sum of $10,000 as an honorarium to be paid by the Defendant out of the settlement fund.
The proposed representative plaintiffs in the proposed Class Actions listed in Schedule “C” shall each receive the sum of $10,000 as an honorarium to be paid by the Defendant out of the settlement fund.
This Order will be rendered null and void in the event that the Settlement Agreement is not approved in substantially the same terms by way of order of the Ontario Superior Court of Justice.
The statutory provisions of all applicable class proceedings legislation shall apply in their entirety to the supervision, operation and implementation of the Settlement Agreement and this Order.
“Michael L. Phelan”