Qalipu Mi’kmaq First Nation Band Class Action

• September 17, 2024

  Class Counsel has been working towards getting the trial of the common issues scheduled and heard.  In July 2024, Class Counsel attempted to serve and file a requisition for a pre-trial conference, which is a precursor step that must be taken before trial dates can be scheduled. However, that request was ultimately rejected by the Federal Court.

  On September 12, 2024, the parties appeared before the case management judge with a proposed timetable for remaining steps to be taken, including the exchange of expert reports and the parties’ respective pre-trial conference memorandum and on the same day, the Federal Court issued the following timetable:

  January 31, 2025: Defendants to serve their responding expert reports

  March 28, 2025: Plaintiff to serve their reply expert reports

  March 28, 2025: Defendants to provide Plaintiff with their availabilities for a Pre-Trial Conference

  April 4, 2025: Plaintiff to serve and file a Requisition for Pre-Trial and Pre-Trial Conference Memorandum

  May 30, 2025: Defendants to serve and file a Pre-Trial Conference Memorandum

• February 3, 2023

  Class Counsel is aware that the Government of Canada, the FNI and the Qalipu Mi’kmaq First Nation have entered into an agreement to establish criteria for accepting former and current members of the CAF and the RCMP as Qalipu Founding Members, and that the application process has begun and has a deadline of March 17, 2023. Class Counsel encourages Class Members who are eligible to apply for Founding Membership under the new agreement to do so.

  Class Counsel is also aware that as part of the application, applicants will be required to sign an acknowledgement and release (“release”). The terms of the release will only be effective if Class Members are ultimately successful in their applications for Founding Membership. The date upon which the release becomes effective is the date the Recognition Order is amended to add successful applicants to the Founding Members list of the Qalipu Mi’kmaq First Nation. The terms of the release do not prevent Class Members from continuing to participate in the Class Action, even if they are successful in becoming Founding Members. However, the acknowledgement and release will limit the amount of damages, expenses, and/or losses that Class Members may claim. Class Members will not be entitled to any damages, expenses, and/or losses that accrue after the effective date of the release.

• November 9, 2022

  The parties appeared before Madam Associate Justice Molgat for a Case Management Conference on November 9, 2022. The Plaintiff re-iterated its request for a Dispute Resolution Conference (i.e. Court-assisted mediation) to be scheduled. The AGC and FNI refused this request. The Court determined that this request will be re-visited again once the process for examinations for discovery is concluded.

• April 14, 2022

  The Federal Court has issued a revised timetable for the completion of examinations for discovery in this litigation:

  1. 1. 1. The Crown’s representative shall be examined during the week of July 11-15, 2022.
        2. The representative plaintiff shall be examined no later than September 30, 2022.
        3. The representative of the FNI will be examined either on the week of September 19-23, 2022 or September 29-30.

  The Federal Court also denied the Plaintiff’s request to compel the parties to attend a Court-assisted mediation but indicated that the issue could be revisited at the conclusion of the examinations for discovery.

  The parties will appear before the Court at a case management conference to address the timetable for next steps after completion of the examination for discoveries.

• February 10, 2022

  It has come to Class Counsel’s attention that the Government of Canada and the Federation of Newfoundland Indians (“FNI”) and the Qalipu Mi’kmaq First Nation are in discussions and close to reaching an agreement regarding the reconsideration of applications for active services members of the Canadian Armed Forces, the Royal Canadian Mounted Police and former members of these forces who were denied founding membership in the Qalipu Mi’kmaq First Nation.

  Certainly Class Counsel welcomes the reconsideration of such veteran’s applications because of the unfair application of the Supplemental Agreement.  However, the apparent premise underlying such agreement to include such veteran’s could similarly apply to others who have left Newfoundland over the last 70 years.

  We understand that the Government of Canada has paused  apparent negotiations with the FNI and the Qalipu Mi’kmaq First Nation in relation to the reconsideration of FNI members and continues to not to engage on that subject.

  Class Counsel is disappointed that while citing active litigation as the reason for pausing discussions with the FNI, Canada has not made any effort to consult with Class Counsel on this matter, nor has the FNI. On the contrary, the parties to the agreement have ignored Class Counsel’s requests to be consulted throughout their apparent negotiations.

  Class Counsel will continue to work on advancing the claims of Class Members whose applications for membership were unfairly affected by the changes in the 2013 Supplementary Agreement.

• September 29, 2021

  Class Counsel is aware that the Government of Canada, the Federation of Newfoundland Indians (“FNI”) and the Qalipu Mi’kmaq First Nation are in the process of finalizing a new agreement that would allow for the reconsideration of applications for active service members of the Canadian Armed Forces, the Royal Canadian Mounted Police and former members of these forces who were denied founding membership in the Qalipu Mi’kmaq First Nation.

  While we are encouraged by Canada and the FNI’s decision to make adjustments to the unfair restrictions in the Supplemental Agreement for veterans in this initiative, Class Counsel was not consulted with respect to this new agreement nor the finalization of such agreement. To the contrary, Class Counsel is disappointed that, as lawyers representing the class of individuals who had been rejected, our requests to be consulted on any changes to the enrolment process that impacts class members had been ignored by the parties to the agreement.

  While we are encouraged by this initiative, we believe it highlights and supports the class action’s position that the changes in the Supplementary Agreement impacting non-residents were fundamentally unfair in application and in purpose.  We believe the premise or rationale underlying the veterans’ inclusion in the Band pursuant to the 2008 Agreement and circumvention of the changes in the Supplementary Agreement impacting non-residents of Newfoundland should be applicable to all non-resident applicants.

• March 17, 2021

  The deadline for opting-out of the class has closed.

  The Crown has not produced documents in accordance with the previously ordered timetable. As a result, the timetable has been amended by the Federal Court on consent of the parties as follows:

  April 15, 2021	The Crown shall produce all remaining relevant, non-privileged, “H” drive documents
  June 30, 2021	The Crown shall produce all relevant, non-privileged emails from core custodians.
  September 30, 2021	The Crown shall produce all remaining relevant, non-privileged documents.
  The Court has directed that the above production dates are peremptory for the Crown
  January 31, 2022	Examinations for discovery shall be completed.
  February 15, 2022	The parties shall establish a timeline for the delivery of answers to undertakings; and The parties shall provide the Court with a status update, including any agreed upon deadlines for the delivery of answers to undertakings.
  Any motions arising from the examinations for discovery shall be served and filed within two (2) weeks of the deadline for delivery of answers to undertakings.
  Any follow-up examinations for discovery shall be completed within two (2) months of the delivery of answers to undertakings (where there are no motions arising from the examinations for discovery) or within two (2) months of the determination of any motions arising from the examinations for discovery.
  The parties shall, within two (2) weeks of the completion of any follow-up examinations for discovery, requisition a case management conference to address the timetable for the remaining steps in this proceeding.

   

• November 5, 2020

  The following timetable for discoveries, agreed to by the parties, has been approved by the Federal Court:

  December 31, 2020	FNI shall produce relevant, non-privileged documents relating to the period November 30, 2009 to July 4, 2013; The Crown shall produce relevant, non-privileged, “H” drive documents; and The Plaintiff shall produce his relevant documents.
  March 2, 2021	FNI shall produce all remaining relevant, non-privileged documents; and The Crown shall produce all relevant, non-privileged emails from core custodians.
  June 1, 2021	The Crown shall produce all remaining relevant, non-privileged documents.
  September 1, 2021	Examinations for discovery shall be completed.
  September 8, 2021	The parties shall establish a timeline for the delivery of answers to undertakings; and The parties shall provide the Court with a status update, including any agreed upon deadlines for the delivery of answers to undertakings.
  Any motions arising from the examinations for discovery shall be served and filed within two (2) weeks of the deadline for delivery of answers to undertakings.
  Any follow-up examinations for discovery shall be completed within two (2) months of the delivery of answers to undertakings (where there are no motions arising from the examinations for discovery) or within two (2) months of the determination of any motions arising from the examinations for discovery.
  The parties shall, within two (2) weeks of the completion of any follow-up examinations for discovery, requisition a case management conference to address the timetable for the remaining steps in this proceeding.

   

• September 3, 2020

  As part of the process of the dissemination of notice of certification a press release announcing the certification of this class action was released on August 29, 2020, which can be found here
  Click here to read the notice of certification.

• July 22, 2020

  This case has now been certified as a class proceeding. The court has approved a notice of certification, which among other things, explains what the class proceeding is about and how a person can take steps if they do not want to be part of the class proceeding: click here to read the notice of certification.

• April 29, 2020

  Due to the current coronavirus crisis, the Federal Court has severely restricted its normal operations.  All previous motion dates have been cancelled and the court is not yet booking new hearings.

  In addition, the Defendant, the Attorney General of Canada, has advised that its operations has been significantly curtailed to what it has deemed to be essential services and responding to this litigation has been deemed to be non-essential.  It is not clear when Canada will permit the Ministry of Crown-Indigenous Relations and Northern Affairs Canada to resume operations remotely.

  As a result, the distribution of notice of the certification of this proceeding to class members has been delayed.  In addition, documentary production by the Defendants has also been delayed and will result in a delay to access to justice in this case.

  More information will be provided as it becomes known.

• February 13, 2020

  The Statement of Claim in this class action has now been filed in accordance with the order of the Federal Court of Appeal, which can be viewed here.  The new style of cause is Collins v Canada et al, T-2044-19.

  In addition, the previous Federal Court application Brake v Canada et al, T-300-17 has now been consolidated with Collins v Canada et al, T-2044-19.  Therefore this class action will now proceed as Collins v Canada et al, T-2044-19.

  The parties are in the process of finalizing the notice to the class members of the certification of this class action.  It is hopeful that those materials and the plan to distribute them will be finalized in the coming weeks.

• November 7, 2019

  The Federal Court of Appeal certified this proceeding as a class proceeding.  In doing so, the Federal Court of Appeal overturned the decision of Justice Zinn of the Federal Court and directed that this case proceed by way of a combined judicial review application and an action for damages, where the propriety of the Supplemental Agreement will be at issue and entitlement to reconsideration under the Original Agreement and potential damages will be sought.

  Mr. Gregory Collins was appointed to replace Jerry Brake, who recently passed away.

  The Federal Court of Appeal certified this proceeding in the face of the decision in Wells v. AGC (and the recent decision in Abbott v AGC), finding that such a decision was not specifically binding on the class.

  A copy of the Reasons of the Federal Court of Appeal can be found here.

  The next steps in this proceeding will be to formally amend the application and initiate a statement of claim in Mr. Collins’ name and disseminate notice of certification to the class.  Those steps may take several weeks to complete.

• October 28, 2019

  It is with great sadness that we report that Jerry Brake, the proposed representative of the class, passed away on October 15, 2019.

  Jerry was a vibrant person who zealously sought to champion this case on behalf of the class.

  Jerry was 54 years.  He is survived by his wife and four children.

  Jerry will be greatly missed.

  Jerry and his family’s intention is to continue with the representation of the class in this case until an appropriate representative is appointed by the Court.  More information on who will be appointed to represent the class in Jerry’s place will be provide soon.

• March 19, 2019

  The Federal Court of Appeal heard Mr. Brake’s appeal of Justice Zinn’s May 8, 2018 decision refusing the certification of this class proceeding.  The Federal Court of Appeal reserved their decision.  A decision from the court is expected in the coming months.

• November 1, 2018

  The parties have now exchange memoranda of fact and law for the upcoming appeal of the motion judge’s decision not to certify this proceeding as a class proceeding.  You can find a copy of the Plaintiff’s memorandum here, the Attorney General of Canada’s memorandum here, and the Federation of Newfoundland Indians here.  The hearing of the appeal is expected to be scheduled shortly.

• May 28, 2018

  Mr. Brake has filed an appeal of the motion for certification. The Notice of Appeal is available here.

• May 8, 2018

  The court decided that this case should not be allowed to proceed as a class action. The decision of the court can be read by clicking here.  The Plaintiff intends on appealing the decision.

  Mr. Brake’s statement:  On May 8, 2018 the Federal Court denied Mr. Brake’s motion to proceed with his class action.    Mr. Brake is disappointed by the result and disagrees with the outcome.

  In Mr. Brake’s view, the Federal Court’s decision is a significant blow to the prospects of getting access to justice for 80,000 rejected applicants.    The Federal Court found that the action was premature and inappropriate for a class proceeding. Mr. Brake does not agree.  A wrong has been perpetrated against the applicants to the Qalipu Mi’kmaq First Nation by the establishment of the Supplementary Agreement.  That wrong should be remedied for all 80,000 rejected applicants at the same time in this class proceeding.  Instead, in effect, the Federal Court’s decision will result in a piecemeal approach where the Supplemental Agreement will be assessed at different times in different proceedings.

  Mr. Brake intends on appealing the decision.   He hopes his action, which seeks to address all the issues with the Supplemental Agreement and all appropriate remedies at one time, will be certified as a class proceeding on behalf of all rejected applicants by the Federal Court of Appeal.

• March 5, 2018

  The certification hearing will be held at the Federal Court of Canada, 180 Queen Street West, Toronto, Ontario in Courtroom 7C.

• February 23, 2018

  The hearing of the certification motion will take place on March 6 and 7, 2018 at the Federal Court of Canada, 180 Queen Street West, Toronto, Ontario. The hearing will start at 9:30 a.m. The court room will be posted here for anyone who wishes to attend.

• December 5, 2017

  The Applicant will be bringing a motion to compel the Federation of Newfoundland Indians to answer questions objected to pursuant to written cross-examinations. The motion will be heard on December 13, 2017 at 9:30am via video-conference. Madam Prothonotary Aylen has amended the prior timetable  as follows:

  January 8, 2018	The Applicant shall serve and file his motion record
  January 31, 2018	The Respondent shall serve and file its motion record
  March 6-7, 2018	Certification Motion

• December 4, 2017

  On November 17, 2017, the Honourable Mr. Justice Brown heard the Applicant’s motion that the merits of his judicial review application should be heard together with his conversion and certification motions. Justice Brown dismissed the Applicant’s motion.

• June 15, 2017

  The Court has approved the following timetable leading up to the hearing of the motion for certification:

  June 16, 2017	The Applicant shall serve his supporting affidavits
  October 16, 2017	The Respondent shall serve any supporting affidavits
  November 16, 2017	All cross-examinations to be completed
  November 30, 2017	The Applicant shall serve and file his motion record
  December 22, 2017	The Respondent shall serve and file its motion record
  2018 (date to be determined)	Certification Motion

   

Show All

• July 21, 2020 Notice of Certification
• February 3, 2020 Order
• December 17, 2019 Statement of Claim (Collins v Canada et al, T-2044-19)
• November 4, 2019 Reasons for Judgment
• January 12, 2018 Applicant's Factum
• February 7, 2018 FNI's Factum
• February 6, 2018 AGC's Factum
• July 21, 2017 Proposed Statement of Claim
• June 16, 2017 Notice of Motion
• March 2, 2017 Notice of Application

What is a class action?

A class action is a lawsuit which provides a method for a large group of people with common claims to join together to advance one large claim. Class actions are a more efficient and cost-effective way for groups of people with common claims to gain access to the legal system and seek justice.

What does certification mean?

In order for an action to proceed as a class action, the court must determine whether it is appropriate for the case to be treated as a class action. Some of the factors the courts consider are the extent to which the claims of the class members are common, and whether a class action is preferable to other methods (such as individual actions) of advancing the issues. The decision as to whether a class action should be certified takes place at a certification hearing and is decided by a judge. If certified, a representative plaintiff will advance the action on behalf of all of the class members.

How do I know if I am a Class Member?

The certification order will always contain a description of who is a class member. We post the certification orders in our actions so that you can review them. You do not need to “sign up” to become involved in a class action. If you are included in the class description, you are automatically a class member who will be affected by the outcome of the class action unless you decide to “opt out”.

Are Class Members notified of the certification of the class proceeding?

Yes. After the claim has been certified, the court will authorize notice to be given to the members of the class.

Can I opt out of a class action and pursue independent legal action?

Yes. When a class action is certified, class members are always given an opportunity to opt out of the action. A deadline is imposed for opting out. If you do not opt out by the given deadline, class members will be bound by the outcome of the class action, whether it is successful or unsuccessful. If you opt out, you will not receive any benefit if the action is successful.

Will there be any cost to class members for legal fees?

Typically, class actions are handled on a contingency fee basis, which means that the class action lawyers will be paid only if the class action is successful at trial or settled. In that case, class counsel fees may be paid by the defendants or out of the settlement or judgment proceeds as approved by the court. In addition, the plaintiff may seek funding assistance from the Class Proceeding Fund which, if funding is granted, may provide funding for disbursements.

I still have questions…

Please feel to contact us by using the contact information on this site.

Email: qalipuclassaction@kmlaw.ca

Tollfree: 1 800 315 5570

• Mi’kmaq Matters: A Decision in the Jerry Brake Case
• Mi’kmaq Matters – March 11, 2019
• Former Corner Brook resident Jerry Brake puts his name on class action against Qalipu enrolment (http://www.thewesternstar.com/news/local/2017/7/22/former-corner-brook-resident-jerry-brake-puts-his-name-on-class-.html)
• Mi’kmaq Matters