Motion approved for the Indian Day School Settlement Agreement.
Motion approved for an Indian Day School settlement agreement [“Settlement”]. To approve a class action, the Court must determine if the settlement is, in all the circumstances, fair, reasonable, and in the best interests of the approximately 120,000 aging people that attended these Indian Day Schools [“Survivor Class Members”] as a whole.
The Settlement provides up to $1.4 billion in compensation to be shared by those who attended the over 700 Federal Indian Day Schools. For over 50 years, many Indigenous children were compelled to attend Indian Day Schools operated by the Defendant. The principal difference between Indian Day School students and Residential School students is that Day School students went home at night. Attendance at these schools was compulsory. Truancy resulted in punishment for not only the student, but also for the family including the cancellation of the “allowance” to which parents were entitled. Although the Defendant does not admit liability in the Settlement Agreement, the Settlement acknowledges that children were divided from their families and culture, and were denied their heritage. Many were physically, emotionally and sexually abused.
The proposed settlement represents access to justice for a class of Survivor Class Members and their spouses, children, and grandchildren. Indian Day School students were not included in the now famous Indian Residential School Settlement [IRSS]. However, many of the same abuses recognized in the IRSS were inflicted on those attending the Indian Day Schools. Not all settlements are good and settlement will not always be better than litigation, but this is a case where this Settlement, although general, is vastly preferable to the risky litigation, delays, costs, trauma and uncertainty inherent in this litigation.
It is important that the Settlement be looked at as a whole. The Court must refrain from rewriting the substantive terms of the Settlement or assessing the interests of an individual class member in isolation from the entire class (Manuge v R, 2013 FC 341; Hunt v Mezentco Solutions Inc, 2017 ONSC 2140). Further, a class action settlement is not required to be perfect as it must only fall within a “zone or range of reasonableness” (Châteauneuf v R, 2006 FC 286; Ontario New Home Warranty Program v Chevron Chemical Co, 46 OR (3d)).
It was determined that the Settlement reduced relevant risks, simplified the compensation process, and allowed family class members who did not receive direct compensation to participate in the healing process through the Settlement’s Legacy Fund. The Court was concerned with the litigation being drawn out, which was particularly meaningful as the Settlement involved an aging class of whom approximately 1,800 pass away each year. These considerations, in combination with the Court’s communication with class members, led the Court to determine that the Settlement was fair, reasonable, and in the best interests of the Class as a whole.