Docket:
T-1542-12
Citation:
2015 FC 766
Ottawa, Ontario, June 18, 2015
PRESENT: The Honourable Mr. Justice Harrington
PROPOSED CLASS ACTION
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BETWEEN:
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CHIEF SHANE GOTTFRIEDSON, ON HIS OWN BEHALF AND ON
BEHALF OF ALL THE MEMBERS OF THE TK’EMLÚPS TE SECWÉPEMC INDIAN BAND AND THE
TK’EMLÚPS TE SECWÉPEMC INDIAN BAND, CHIEF GARRY FESCHUK, ON HIS OWN BEHALF
AND ON BEHALF OF ALL MEMBERS OF THE SECHELT INDIAN BAND AND THE SECHELT
INDIAN BAND, VIOLET CATHERINE GOTTFRIEDSON, DOREEN LOUISE SEYMOUR, CHARLOTTE
ANNE VICTORINE GILBERT, VICTOR FRASER, DIENA MARIE JULES, AMANDA DEANNE BIG
SORREL HORSE, DARLENE MATILDA BULPIT, FREDERICK JOHNSON, ABIGAIL MARGARET
AUGUST, SHELLY NADINE HOEHNE, DAPHNE PAUL, AARON JOE AND RITA POULSEN
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Plaintiffs
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and
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HER MAJESTY THE QUEEN IN RIGHT OF CANADA
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Defendant
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ORDER
FOR REASONS GIVEN on 3 June 2015,
reported at 2015 FC 706;
THIS COURT ORDERS that:
1.
The above captioned proceeding shall be
certified as a class proceeding with the following conditions:
a.
The Classes shall be defined as follows:
Survivor Class: all
Aboriginal persons who attended as a student or for educational purposes for
any period at a Residential School, during the Class Period, excluding, for any
individual class member, such periods of time for which that class member
received compensation by way of the Common Experience Payment under the Indian
Residential Schools Settlement Agreement.
Descendant Class: the
first generation of persons descended from Survivor Class Members or persons
who were legally or traditionally adopted by a Survivor Class Member or their
spouse.
Band Class: the Tk’emlúps
te Secwépemc Indian Band and the Sechelt Indian Band and any other Indian
Band(s) which:
(i)
has or had some members who are or were members
of the Survivor Class, or in whose community a Residential School is located;
and
(ii)
is specifically added to this claim with one or
more specifically Identified Residential Schools.
b.
The Representative Plaintiffs shall be:
For the Survivor Class:
Violet Catherine Gottfriedson
Charlotte Anne Victorine Gilbert
Diena Marie Jules
Darlene Matilda Bulpit
Frederick Johnson
Daphne Paul
For the Descendant Class:
Amanda Deanne Big Sorrel Horse
Rita Poulsen
For the Band Class:
Tk’emlúps te Secwépemc Indian Band
Sechelt Indian Band
c.
The Nature of the Claims are:
Breaches of fiduciary and constitutionally mandated
duties, breach of Aboriginal Rights, intentional infliction of mental distress,
breaches of International Conventions and/or Covenants, breaches of
international law, and negligence committed by or on behalf Canada for which
Canada is liable.
d.
The Relief claimed is as follows:
By the Survivor Class:
i.
a Declaration that Canada owed and was in breach
of the fiduciary, constitutionally-mandated, statutory and common law duties to
the Survivor Class Representative Plaintiffs and the other Survivor Class
members in relation to the purpose, establishment, funding, operation,
supervision, control, maintenance, obligatory attendance of Survivor Class
members at, and support of, the Residential Schools;
ii.
a Declaration that members of the Survivor Class
have Aboriginal Rights to speak their traditional languages, to engage in their
traditional customs and religious practices and to govern themselves in their
traditional manner;
iii.
a Declaration that Canada breached the
linguistic and cultural rights (Aboriginal Rights or otherwise) of the Survivor
Class;
iv.
a Declaration that the Residential Schools
Policy and the Residential Schools caused Cultural, Linguistic and Social
Damage and irreparable harm to the Survivor Class;
v.
a Declaration that Canada is liable to the
Survivor Class Representative Plaintiffs and other Survivor Class members for
the damages caused by its breach of fiduciary, constitutionally-mandated,
statutory and common law duties, and Aboriginal Rights and for the intentional
infliction of mental distress, as well as breaches of International Conventions
and Covenants, and breaches of international law, in relation to the purpose,
establishment, funding, operation, supervision, control and maintenance, and
obligatory attendance of Survivor Class members at and support of the
Residential Schools;
vi.
general damages for negligence, breach of
fiduciary, constitutionally-mandated, statutory and common law duties,
Aboriginal Rights and intentional infliction of mental distress, as well as
breaches of International Conventions and Covenants, and breaches of
international law, for which Canada is liable;
vii.
pecuniary damages and special damages for
negligence, loss of income, loss of earning potential, loss of economic
opportunity, loss of educational opportunities, breach of fiduciary,
constitutionally-mandated, statutory and common law duties, Aboriginal Rights
and for intentional infliction of mental distress, as well as breaches of
International Conventions and Covenants, and breaches of international law
including amounts to cover the cost of care, and to restore, protect and
preserve the linguistic and cultural heritage of the members of the Survivor
Class for which Canada is liable;
viii.
exemplary and punitive damages for which Canada
is liable; and
ix.
pre-judgment and post-judgment interest and
costs.
By the Descendant Class:
i.
a Declaration that Canada owed and was in breach
of the fiduciary, constitutionally-mandated, statutory and common law duties owed
to the Descendant Class Representative Plaintiffs and the other Descendant
Class members in relation to the purpose, establishment, funding, operation,
supervision, control, maintenance, obligatory attendance of Survivor Class
members at, and support of, the Residential Schools;
ii.
a Declaration that the Descendant Class have
Aboriginal Rights to speak their traditional languages, to engage in their
traditional customs and religious practices and to govern themselves in their
traditional manner
iii.
a Declaration that Canada breached the
linguistic and cultural rights (Aboriginal Rights or otherwise) of the
Descendant Class;
iv.
a Declaration that the Residential Schools
Policy and the Residential Schools caused Cultural, Linguistic and Social
Damage and irreparable harm to the Descendant Class;
v.
a Declaration that Canada is liable to the
Descendant Class Representative Plaintiffs and other Descendant Class members
for the damages caused by its breach of fiduciary and constitutionally-mandated
duties and Aboriginal Rights, as well as breaches of International Conventions
and Covenants, and breaches of international law, in relation to the purpose,
establishment, funding, operation, supervision, control and maintenance, and
obligatory attendance of Survivor Class members at, and support of, the
Residential Schools;
vi.
general damages for breach of fiduciary and
constitutionally-mandated duties and Aboriginal Rights, as well as breaches of
International Conventions and Covenants, and breaches of international law, for
which Canada is liable;
vii.
pecuniary damages and special damages for breach
of fiduciary and constitutionally-mandated duties and Aboriginal Rights, as
well as breaches of International Conventions and Covenants, and breaches of
international law, including amounts to cover the cost of care, and to restore,
protect and preserve the linguistic and cultural heritage of the members of the
Descendant Class for which Canada is liable;
viii.
exemplary and punitive damages for which Canada
is liable; and
ix.
pre-judgment and post-judgment interest and
costs.
By the Band Class:
i.
a Declaration that the Sechelt Indian Band and
Tk’emlúps te Secwépemc Indian Band, and all members of the Band Class, have
Aboriginal Rights to speak their traditional languages, to engage in their
traditional customs and religious practices and to govern themselves in their
traditional manner;
ii.
a Declaration that Canada owed and was in breach
of the fiduciary, constitutionally-mandated, statutory and common law duties,
as well as breaches of International Conventions and Covenants, and breaches of
international law, to the Band Class members in relation to the purpose,
establishment, funding, operation, supervision, control, maintenance,
obligatory attendance of Survivor Class members at, and support of, the SIRS and
the KIRS and other Identified Residential Schools;
iii.
a Declaration that the Residential Schools
Policy and the KIRS, the SIRS and Identified Residential Schools caused
Cultural, Linguistic and Social Damage and irreparable harm to the Band Class;
iv.
a Declaration that Canada was or is in breach of
the Band Class members' linguistic and cultural rights, (Aboriginal Rights or
otherwise), as well as breaches of International Conventions and Covenants, and
breaches of international law, as a consequence of its establishment, funding,
operation, supervision, control and maintenance, and obligatory attendance of
Survivor Class members at and support of the Residential Schools Policy, and
the Identified Residential Schools;
v.
a Declaration that Canada is liable to the Band
Class members for the damages caused by its breach of fiduciary and
constitutionally mandated duties and Aboriginal Rights, as well as breaches of
International Conventions and Covenants, and breaches of international law, in
relation to the purpose, establishment, funding, operation, supervision,
control and maintenance, and obligatory attendance of Survivor Class members at
and support of the Identified Residential Schools;
vi.
non-pecuniary and pecuniary damages and special
damages for breach of fiduciary and constitutionally mandated duties and
Aboriginal Rights, as well as breaches of International Conventions and
Covenants, and breaches of international law, including amounts to cover the
ongoing cost of care and development of wellness plans for members of the bands
in the Band Class, as well as the costs of restoring, protecting and preserving
the linguistic and cultural heritage of the Band Class for which Canada is
liable;
vii.
The construction and maintenance of healing and
education centres in the Band Class communities and such further and other
centres or operations as may mitigate the losses suffered and that this
Honourable Court may find to be appropriate and just;
viii.
exemplary and punitive damages for which Canada
is liable; and
ix.
pre-judgment and post-judgment interest and
costs.
e.
The Common Questions of Law or Fact are:
a.
Through the purpose, operation or management of
any of the Residential Schools during the Class Period, did the Defendant
breach a fiduciary duty owed to the Survivor, Descendant and Band Class, or any
of them, not to destroy their language and culture?
b.
Through the purpose, operation or management of
any of the Residential Schools during the Class Period, did the Defendant
breach the cultural and/or linguistic rights, be they Aboriginal Rights or
otherwise of the Survivor, Descendant and Band Class, or any of them?
c.
Through the purpose, operation or management of
any of the Residential Schools during the Class Period, did the Defendant
breach a fiduciary duty owed to the Survivor Class to protect them from
actionable mental harm?
d.
Through the purpose, operation or management of
any of the Residential Schools during the Class Period, did the Defendant
breach a duty of care owed to the Survivor Class to protect them from
actionable mental harm?
e.
If the answer to any of (a)-(d) above is yes,
can the Court make an aggregate assessment of the damages suffered by the Class
as part of the common issues trial?
f.
If the answer to any of (a)-(d) above is yes,
was the Defendant guilty of conduct that justifies an award of punitive
damages; and
g.
If the answer to (f) above is yes, what amount
of punitive damages ought to be awarded?
f.
The following definitions apply to this Order:
a.
“Aboriginal(s)”, “Aboriginal Person(s)” or
“Aboriginal Child(ren)” means a person or persons whose rights are recognized
and affirmed by the Constitution Act , 1982, s. 35;
b.
“Aboriginal Right(s)” means any or all of the
Aboriginal and treaty rights recognized and affirmed by the Constitution Act,
1982, section. 35;
c.
“Act” means the Indian Act, R.S.C. 1985,
c. I-5 and its predecessors as have been amended from time to time;
d.
“Agreement” means the Indian Residential Schools
Settlement Agreement dated May 10, 2006 entered into by Canada to settle claims
relating to Residential Schools as approved in the orders granted in
various jurisdictions across Canada;
e.
"Canada" means the Defendant, Her
Majesty the Queen;
f.
"Class Period” means 1920 to 1997;
g.
"Cultural, Linguistic and Social
Damage" means the damage or harm caused by the creation and implementation
of Residential Schools and Residential Schools Policy to the educational,
governmental, economic, cultural, linguistic, spiritual and social customs,
practices and way of life, traditional governance structures, as well as to the
community and individual security and wellbeing, of Aboriginal Persons;
h.
“Identified Residential School(s)” means the
KIRS or the SIRS or any other Residential School specifically identified as a
member of the Band Class;
i.
“KIRS” means the Kamloops Indian Residential
School;
j.
“Residential Schools” means all Indian
Residential Schools recognized under the Agreement and listed in Schedule “A”
appended to this Order which Schedule may be amended from time to time by Order
of this Court.;
k.
"Residential Schools Policy" means the
policy of Canada with respect to the implementation of Indian Residential
Schools; and
l.
“SIRS” means the Sechelt Indian Residential
School.
g.
The manner and content of notices to class
members shall be approved by this Court. Class members in the Survivor and
Descendent class shall have until October 30, 2015 in which to opt-out, or such
other time as this Court may determine. Members of the Band Class will have 6
months within which to opt-in from the date of publication of the notice as
directed by the Court, or other such time as this Court may determine.
h.
Either party may apply to this Court to amend
the list of Residential Schools set out in Schedule “A” for the purpose of
these proceedings.
“Sean Harrington”
SCHEDULE
“A”
to the Order of Justice Harrington
LIST OF RESIDENTIAL SCHOOLS
British Columbia Residential Schools
Ahousaht
Alberni
Cariboo (St. Joseph's, William's Lake)
Christie (Clayoquot, Kakawis)
Coqualeetza from 1924 to 1940
Cranbrook (St. Eugene's, Kootenay)
Kamloops
Kuper Island
Lejac (Fraser Lake)
Lower Post
St George's (Lytton)
St. Mary's (Mission)
St. Michael's (Alert Bay Girls' Home, Alert
Bay Boys' Home)
Sechelt
St. Paul's (Squamish, North Vancouver)
Port Simpson (Crosby Home for Girls)
Kitimaat
Anahim Lake Dormitory (September 1968 to June
1977)
Alberta Residential Schools
Assumption (Hay Lake)
Blue Quills (Saddle Lake, Lac la Biche,
Sacred Heart)
Crowfoot (Blackfoot, St. Joseph's, Ste.
Trinité)
Desmarais (Wabiscaw Lake, St. Martin’s,
Wabisca Roman Catholic)
Edmonton (Poundmaker, replaced Red Deer
Industrial)
Ermineskin (Hobbema)
Holy Angels (Fort Chipewyan, École des
Saint-Anges)
Fort Vermilion (St. Henry's)
Joussard (St. Bruno's)
Lac La Biche (Notre Dame des Victoires)
Lesser Slave Lake (St. Peter's)
Morley (Stony/Stoney, replaced McDougall
Orphanage)
Old Sun (Blackfoot)
Sacred Heart (Peigan, Brocket)
St. Albert (Youville)
St. Augustine (Smokey-River)
St. Cyprian (Queen Victoria’s Jubilee Home,
Peigan)
St. Joseph's (High River, Dunbow)
St. Mary's (Blood, Immaculate Conception)
St. Paul's (Blood)
Sturgeon Lake (Calais, St. Francis Xavier)
Wabasca (St. John's)
Whitefish Lake (St. Andrew's)
Grouard to December 1957
Sarcee (St. Barnabas)
Saskatchewan Residential Schools
Beauval (Lac la Plonge)
File Hills
Gordon's
Lac La Ronge (see Prince Albert)
Lebret (Qu'Appelle, Whitecalf, St. Paul's
High School)
Marieval (Cowesess, Crooked Lake)
Muscowequan (Lestock, Touchwood)
Onion Lake Anglican (see Prince Albert)
Prince Albert (Onion Lake, St. Alban's, All
Saints, St. Barnabas, Lac La Ronge)
Regina
Round Lake
St. Anthony's (Onion Lake, Sacred Heart)
St. Michael's (Duck Lake)
St. Philip's
Sturgeon Landing (replaced by Guy Hill, MB)
Thunderchild (Delmas, St. Henri)
Crowstand
Fort Pelly
Cote Improved Federal Day School (September
1928 to June 1940)
Manitoba Residential Schools
Assiniboia(Winnipeg)
Birtle
Brandon
Churchill Vocational Centre
Cross Lake (St. Joseph's, Norway House)
Dauphin (replaced McKay)
Elkhorn (Washakada)
Fort Alexander (Pine Falls)
Guy Hill (Clearwater, the Pas, formerly
Sturgeon Landing, SK)
McKay (The Pas, replaced by Dauphin)
Norway House
Pine Creek (Campeville)
Portage la Prairie
Sandy Bay
Notre Dame Hostel (Norway House Catholic,
Jack River Hostel, replaced Jack River Annex at Cross Lake)
Ontario Residential Schools
Bishop Horden Hall (Moose Fort, Moose
Factory)
Cecilia Jeffrey (Kenora, Shoal Lake)
Chapleau (St. Joseph's)
Fort Frances (St. Margaret's)
McIntosh (Kenora)
Mohawk Institute
Mount Elgin (Muncey, St. Thomas)
Pelican Lake (Pelican Falls)
Poplar Hill
St. Anne's (Fort Albany)
St. Mary's (Kenora, St. Anthony's)
Shingwauk
Spanish Boys' School (Charles Garnier, St.
Joseph's)
Spanish Girls' School (St. Joseph's, St.
Peter's, St. Anne's)
St. Joseph's/Fort William
Stirland Lake High School (Wahbon Bay
Academy) from September 1, 1971 to June 30, 1991
Cristal Lake High School (September 1, 1976
to June 30, 1986)
Quebec Residential Schools
Amos
Fort George (Anglican)
Fort George (Roman Catholic)
La Tuque
Point Bleue
Sept-Îles
Federal Hostels at Great Whale River
Federal Hostels at Port Harrison
Federal Hostels at George River
Federal Hostel at Payne Bay (Bellin)
Fort George Hostels (September 1, 1975 to
June 30, 1978)
Mistassini Hostels (September 1, 1971 to June
30, 1978)
Nova Scotia Residential Schools
Shubenacadie
Nunavut Residential Schools
Chesterfield Inlet (Joseph Bernier, Turquetil
Hall)
Federal Hostels at Panniqtuug/Pangnirtang
Federal Hostels at Broughton
Island/Qikiqtarjuaq
Federal Hostels at Cape Dorset Kinngait
Federal Hostels at Eskimo Point/Arviat
Federal Hostels at Igloolik/Iglulik
Federal Hostels at Baker Lake/Qamani'tuaq
Federal Hostels at Pond Inlet/Mittimatalik
Federal Hostels at Cambridge Bay
Federal Hostels at Lake Harbour
Federal Hostels at Belcher Islands
Federal Hostels at Frobisher Bay/Ukkivik
Federal Tent Hostel at Coppermine
Northwest Territories Residential
Schools
Aklavik (Immaculate Conception)
Aklavik (All Saints)
Fort McPherson (Fleming Hall)
Ford Providence (Sacred Heart)
Fort Resolution (St. Joseph's)
Fort Simpson (Bompas Hall)
Fort Simpson (Lapointe Hall)
Fort Smith (Breynat Hall)
HayRiver-(St. Peter's)
Inuvik (Grollier Hall)
Inuvik (Stringer Hall)
Yellowknife (Akaitcho Hall)
Fort Smith -Grandin College
Federal Hostel at Fort Franklin
Yukon Residential Schools
Carcross (Chooulta)
Yukon Hall (Whitehorse/Protestant Hostel)
Coudert Hall (Whitehorse Hostel/Student
Residence -replaced by Yukon Hall)
Whitehorse Baptist Mission
Shingle Point Eskimo Residential School
St. Paul’s Hostel from September 1920 to June
1943