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Class Action (Fed) - Settlement. Salt River First Nation #195 v. Tk'emlúps te Secwépemc First Nation
In Salt River First Nation #195 v. Tk'emlúps te Secwépemc First Nation (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal against two decisions against a First Nation in a residential schools system class action proceeding, the first a motion to intervene and the second to be added as a class to the action.
Here the court considers (but finds as moot) a re-opening a settlement in an indigenous-issue class action, despite "the failure to opt in by the deadline" as a class:[50] Where a settlement amount is fixed, a court should apply a balancing test (considering factors such as prejudice to the parties and the reason for delay) in determining whether a potential class member should be allowed to join the class after the relevant deadline (Harrington v. Dow Corning Corp., 2001 BCSC 221, 84 B.C.L.R. (3d) 368 at para. 22; Boys and Girls Club of London Foundation c. Molson Coors Brewing Co., 2010 QCCS 6306, [2010] Q.J. No. 14108 at paras. 10-11; and Gregg v. Freightliner Ltd., 2012 BCSC 415, [2012] B.C.W.L.D. 3314 at para. 73 [Gregg]; see also Johnson v. Ontario, 2022 ONCA 725, 475 D.L.R. (4th) 344 at para. 52).
[51] The Court in Gregg noted that, save for situations where a judge has become functus, "“the jurisprudence does not appear to endorse an absolute bar on… extending the time to opt-in after a settlement agreement has been reached”", pointing to a court’s "“broad discretion”" in advancing the goals of class actions (at para. 64). This applies with particular force in the context of a class action addressing the harms caused to Indigenous culture by residential schools with the objective of reconciliation. . Waldron v. Canada (Attorney General)
In Waldron v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal usefully comments on the features and nature of class action settlements:[68] Before I proceed with consideration of the remaining issues, it may be helpful to offer, by way of further legal context, a few reminders about the distinctive nature of class action settlements.. First, class action settlements differ from most other settlements of litigation in requiring the approval of a judge before they can take effect: see rule 334.29(1).
. Second, negotiating a settlement will invariably entail trade-offs and compromise: Châteauneuf v. Canada, 2006 FC 286 at para. 7. We do not know what trade-offs and compromises were made here.
. Third, the well-established test for judicial approval is that the settlement be shown to be fair, reasonable, and in the best interests of the class as a whole: Condon v. Canada, 2018 FC 522 at para. 17. As the supervising judge recognized, this standard does not require perfection, only reasonableness: 2019 FC 1075 at para. 76.
. Fourth, the judge’s assessment of a proposed settlement is “a binary, take-it-or-leave-it proposition. [...] The Court is not permitted to change the settlement terms, impose additional terms or promote the interests of certain class members over those of the whole class”: Toronto Standard Condominium Corporation No. 1654 v. Tri-Can Contract Incorporated, 2022 FC 1796 at para. 17.
. Fifth, the focus on the interests of the class as a whole may mean that a settlement is approved even if it does not meet the needs or demands of particular class members, or benefits some ahead of others: Condon at para 17; Manuge v. Canada, 2013 FC 341 at para. 24; Hébert v. Wenham, 2020 FCA 186 at para. 9, leave to appeal refused, 2021 CanLII 49683 (SCC).
. And sixth, a judicially approved settlement is nonetheless binding on every class member who has not opted out of the proceeding: see rule 334.29(2). Here, Ms. Waldron did not opt out of the class proceeding within the period for doing so.
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