Moushoom v. Canada (Attorney General), 2023 FC 1466

Date: 20231103

Dockets: T-402-19

T-141-20

T-1120-21

Citation: 2023 FC 1466

Ottawa, Ontario, November 3, 2023

PRESENT: The Honourable Madam Justice Aylen

ORDER

(Settlement Agreement Approval Motion)

UPON MOTION by the Plaintiffs, heard at a special sitting of the Court on October 23 and 24, 2023, for:

• a)A declaration that the final settlement agreement executed by the Plaintiffs and the Defendant on April 19, 2023 and as amended by way of Addendum dated October 10, 2023 [Final Settlement Agreement] is fair, reasonable and in the best interests of the Class;

• b)An order approving the Final Settlement Agreement pursuant to Rule 334.29(1) of the Federal Courts Rules;

• c)A declaration that the Final Settlement Agreement is binding on the Representative Plaintiffs, on all Class Members and on the Defendant;

• d)An order dismissing these proceedings against the Defendant, without costs and with prejudice;

• e)An order approving a $15,000.00 honorarium payment to each of the following Representative Plaintiffs:

1. Xavier Moushoom;

2. Jeremy Meawasige (by his litigation guardian, Jonavon Joseph Meawasige);

3. Jonavon Joseph Meawasige;

4. Zacheus Joseph Trout;

5. Ashley Dawn Louise Bach;

6. Melissa Walterson;

7. Noah Buffalo-Jackson (by his litigation guardian, Carolyn Buffalo);

8. Carolyn Buffalo; and

9. Dick Eugene Jackson also known as Richard Jackson;

• f)In the alternative, if the Final Settlement Agreement is not approved, an order that the parties are all restored, without prejudice, to their respective positions as such existed prior to the proposed settlement as of April 18, 2023; and

• g)Such further and other relief as counsel may request and this Court may deem just;

AND CONSIDERING the motion materials filed by the parties and the submissions of counsel for the parties at the hearing of the motion;

AND CONSIDERING the statements made by the Representative Plaintiffs and a potential class member at the hearing of the motion in support of the approval of the Final Settlement Agreement;

AND CONSIDERING that the Defendant consents to the relief sought;

AND CONSIDERING that the Court is satisfied, for reasons to be issued separately, that the relief sought should be granted;

ORDER in T-402-19, T-141-20, T-1120-21

THIS COURT ORDERS that:

1. The parties’ final settlement agreement executed by the Plaintiffs and the Defendant on April 19, 2023 and as amended by way of Addendum dated October 10, 2023 [Final Settlement Agreement], attached as Schedule “A” hereto, is fair and reasonable and in the best interests of Class Members, and is hereby approved.

2. The parties to the Final Settlement Agreement may make non-substantive amendments to the Final Settlement Agreement, including its schedules and appendices, provided that each party to the Final Settlement Agreement agrees in writing to any such amendments.

3. The Defendant shall pay the Settlement Funds set out in the Final Settlement Agreement pursuant to the terms of the Final Settlement Agreement and the Settlement Funds shall be distributed in accordance with the terms of the Final Settlement Agreement.

4. The claims of the Class Members and the Class as a whole are hereby dismissed against the Defendant and are released against the Releasees (as defined in Article 10.01 of the Final Settlement Agreement) in accordance with Article 10.01 of the Final Settlement Agreement; in particular, as follows:

1. Each Class Member or their Estate Executor, estate Claimant, or Personal Representative on behalf of such Individual Class Member or their estate [collectively the “Releasors”] has fully, finally and forever released Canada and its servants, agents, officers and employees, predecessors, successors, and assigns [collectively the “Releasees”], from any and all actions, causes of action, claims, and demands of every nature or kind available, whether or not known or anticipated, which the Releasers had, now have or may in the future have against the Releasees in respect of the claims asserted or capable of being asserted in the Actions, including any claim with regard to the costs referred to under Article 12.02(3) of the Final Settlement Agreement.

2. Class Members retain their rights to make claims against third parties for the physical, sexual or emotional abuse they suffered, restricted to whatever liability such third party may have severally, not including any liability that the third party may have jointly or otherwise with Canada, such that the third party will have no basis to seek contribution, indemnity or relief over by way of equitable subrogation, declaratory relief or otherwise against Canada for the physical, sexual or emotional abuse they suffered. No compensation paid to a Class Member under this settlement will be imputed to payment for injuries suffered as a result of physical, sexual abuse or emotional abuse.

3. For greater certainty, each Releasor is deemed to agree that, if they make any claim or demand or take any action or proceeding against another person, persons or entity in which any claim could arise against Canada for damages or contribution or indemnity and/or other relief over, whether by statute, common law, or Quebec civil law, in relation to allegations and matters set out in the Actions, including for physical, sexual or emotional abuse they suffered while in care, the Releasor will expressly limit their claim so as to exclude any portion of Canada’s responsibility, and in the event Canada is found to have any such liability, the Releasors will indemnify Canada to the full extent of any such liability including any liability as to costs.

5. Upon a final determination of a Claim made under and in accordance with the Claims Process, the Releasors are also deemed to fully and finally release the Parties, counsel for the Parties, Class Counsel, counsel for Canada, the Settlement Implementation Committee and its Members, the Administrator, and the Third-Party Assessor with respect to any claims that have arisen, arise or could arise out of the implementation of the Claims Process, including any claims relating to the calculation of compensation, the sufficiency of the compensation received, and the allocation and distribution of a Trust Fund Surplus. This Order, for greater certainty, does not affect the rights of:

1. Class Members who opt out of the Approved Settlement; nor,

2. Individuals who are not Class Members.

6. As provided for in Rule 334.21(2) of the Federal Courts Rules, any Class Member who has commenced a legal proceeding against the Defendant in relation to the common questions set out in the certification orders who does not discontinue that proceeding on or before the opt out deadline, will be excluded from this Settlement, will be deemed to have opted out of the Settlement and will be ineligible to apply for compensation under this Settlement.

7. This Order, including the releases referred to in paragraph 4 above, and the Final Settlement Agreement are binding on all Class Members who have not opted out of these actions, including those persons who are under a disability and any claims brought on behalf of the Estates of Class Members.

8. An honorarium payment in the amount of $15,000.00 payable to each of the following Representative Plaintiffs is hereby approved:

1. Xavier Moushoom;

2. Jeremy Meawasige (by his litigation guardian, Jonavon Joseph Meawasige);

3. Jonavon Joseph Meawasige;

4. Zacheus Joseph Trout;

5. Ashley Dawn Louise Bach;

6. Melissa Walterson;

7. Noah Buffalo-Jackson (by his litigation guardian, Carolyn Buffalo);

8. Carolyn Buffalo; and

9. Dick Eugene Jackson also known as Richard Jackson.

9. There shall be no costs of this motion.

"Mandy Aylen"

SCHEDULE “A”

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: