1 Playing At The National Stage Pitfalls & Success JOHN A. McKIGGAN Arnold Pizzo McKiggan Spring Garden Road Halifax, Nova Scotia B3J 1H6

2 A Brief History of Canada’s Indian Residential School Litigation Residential School Litigation

3 Individual Lawsuits  1995 fewer than 12 claims filed  By 2005 over 12,000 claims filed  90% alleged physical abuse  60% alleged sexual abuse  Canada denies liability: Pleads limitation defences

4 Blackwater claim filed 1995 Individual Lawsuits

5 Blackwater  B.C. Trial decision: Canada 75% Churches 25%  B.C. Court of Appeal: Canada 100% responsible (vicarious liability)  Supreme Court of Canada: Affirms 75/25 split

6  Blackwater  Canada’s “Secret” strategy memo

7 “Secret” strategy memo At least until an adverse judicial decision is made, a litigation approach may well keep the number of claimants down to a minimum.

8 Canada’s Litigation Strategy

9 “Secret” strategy memo The issue has been raised as to the possibility of a great number of former residential school students launching a massive class action against the Crown…it is unlikely that such an application would be successful. The issue has been raised as to the possibility of a great number of former residential school students launching a massive class action against the Crown…it is unlikely that such an application would be successful.

10 Bernard Class Action

11 This is also the first time the Department of Indian Affairs has faced a class action lawsuit by former students of a residential school…

12 Bernard Class Action  Nora Bernard files Class Action for all former Shubenacadie school students  Claims loss of language and culture for all students  Canada unsuccessfully attempts to strike claim as class action  Bernard claim joins Baxter National Class Action 2002

13  Blackwater  “Secret” strategy memo  Bernard Class Action  Cloud Class Action (Mohawk School) 1998

14 Cloud Class Action  Claim on behalf of all survivors of Mohawk Institute and their families  Canada and Church oppose certification: 2001

15  Blackwater  “Secret” strategy memo  Bernard Class Action  Cloud Class Action  Baxter National Class Action 2000

16 Baxter National Class Action  Claim for all students who attended a Residential School in Canada since 1920  Claims on behalf of parents and children of survivors  Loss of language and culture, emotional, psychological, physical and sexual abuse  Canada files 81 third party claims against religious organizations - significant delay

17  Individual Lawsuits  Blackwater  R.C.A.P.  “Secret” strategy memo  Bernard Class Action  “Statement of Reconciliation”  Cloud Class Action  Baxter National Class Action  Canada starts A.D.R. projects: 2003

18 A.D.R. Projects Government study concludes: “Arguments against certification will be strengthened by the establishment of an A.D.R. model that is a ‘preferable procedure’ to class proceedings. In this regard, creating a model that is more ‘preferable’ to class proceedings should be an overarching consideration in the building of the model.”

19 Court of Appeal Critical of ADR Court of Appeal Critical of ADR “It is a system unilaterally created by one of the respondents in this action and could be unilaterally dismantled without the consent of the appellants. It deals only with physical and sexual abuse. It caps the amount of possible recovery…it does not compare favourably with a common trial.” Cloud: Ontario Court of Appeal

20  Blackwater  “Secret” strategy memo  Bernard Class Action  Cloud Class Action  Baxter National Class Action  A.D.R. projects

21  Blackwater  “Secret” strategy memo  Bernard Class Action  Cloud Class Action  Baxter National Class Action  A.D.R. projects  Alberta Test Cases

22 Lawsuits Continue Lawsuits Continue Bernard Canada’s “Apology” Cloud Baxter ADR Projects

23 Cloud Class Action  Ontario Court of Appeal certifies Cloud Class Action: 2004  Canada’s leave to appeal to S.C.C. denied May 2005

24 May 30, 2005 Canada appoints federal negotiator Former Supreme Court of Canada Justice, Honourable Frank Iacobucci

25 May 2005 – November 2005 Traveling road show

26 May 2005 – November 2005  Canada  Churches  Counsel for Survivors  Assembly of First Nations

27 November 2005 Agreement in Principle

28 Baxter v. Canada OJ 4968; Quatell v. Canada BCJ 3231; Kuptana v. Canada (Attorney General) 2007 NWTJ 1; Ammaq v. Canada, 2006 Nu. J. No. 26; Semple v. Attorney General of Canada 2006 MBQB 285; Bosum v. Attorney General of Canada 2006 QCCS 5794; Sparvier v. Attorney General of Canada 2006 SKQB 533; Northwest v. Canada (Attorney General) 2006 ABQB 902; Fontaine v. Canada YKSC : Approval Hearings

29 December 2006 National Class Action settlement certified and approved

30 Settlement Highlights

31 Common Experience Payment  80,000 potential claimants  2 Billion Dollar Fund  Expect average payment $24,000.00

32 Independent Assessment Process Compensation for:  Physical abuse  Sexual abuse  Serious psychological abuse  Expect payments to total over 2 Billion Dollars

33 Truth and Reconciliation $60 Million for Truth and Reconciliation Commission

34 Commemoration $20 Million for events and memorials

35 Healing $125 Million to Aboriginal Healing Foundation

36 The largest class action settlement in Canadian history

37 The largest historical redress settlement in the world?

38 The Keys to Success

39 The Keys to Success Financing

40 Teamwork The Keys to Success

41 The Keys to Success Cooperation

42 The Keys to Success Dispute Resolution

43 The Keys to Success Managing Resources

44 The Keys to Success Co-Counsel Agreement

45 Good Luck!