June 10, 2015
On June 3, one day after the release of the Executive Summary from the Truth and Reconciliation Commission of Canada, the Federal Court certified a class action concerning day students of Indian Residential Schools [Chief Shane Gottfreidson et al. v. HMQ, 2015 FC 706]. The Indian Residential Schools Settlement Agreement[IRSSA] did not cover students of Residential Schools who did not stay overnight, although they could make an application to the Independent Assessment Process. Day students were members of the class in Cloud, which was certified prior to IRSSA. As a result, day students are now seeking compensation for the harm they endured along with their peers who resided at Residential Schools.
The proposed class consisted of all day students from 140 schools covered by IRSSA (the “survivors”), descendants of the survivors and certain bands. The proposed class period was from 1920 until 1997. The plaintiffs explicitly sought compensation only from Her Majesty in Right of Canada [Canada], excluding what could have been hundreds of religious orders as third parties. The rationale behind this selection was to create a manageable case, as the Court noted “The members of the ‘survivor’ class hope to have this matter resolved before they are all dead.”
Canada opposed certification on the basis that the claim for cultural loss and loss of language could not succeed and that the plaintiffs would be unable to prove a common policy in respect of Residential Schools. The Court held that it was not plain and obvious the plaintiffs would not succeed on these issues. The Court considered the issue of a potential time bar as the most “troubling” issue, although ultimately it was held to not be plain and obvious the claims would be barred. In considering the application of a potential time bar to the claims made, the Court considered the fluid nature of the sui generis relationship between Canada and its Aboriginal peoples concluding that “The last chapter is far from being written.”
On the issue of class definition, the plaintiffs sought to include in the descendant class the children of survivors going back 5 generations, including unborn descendants. The Court refused to certify the breadth of the descendant class sought, limiting the descendant class to the first generation.
This case and other ongoing litigation continues to highlight that Canada’s past practices with respect to Residential Schools is far from resolved.