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Indigenous - Indian Day School Settlement Agreement (IDSSA). Waldron v. Canada (Attorney General)
In Waldron v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered the SOR that applies to appeals of the indigenous class action IDSSA, here in the context of a post-judgment interlocutory order:(1) What standard or standards of review apply?
[64] Ms. Waldron acknowledges that, as the Supreme Court stated in respect of the IRSSA in Fontaine at para. 35, the IDSSA “is at root a contract”. Its interpretation, like that of other contracts, is therefore reviewable, absent extricable questions of law, as a question of mixed fact and law, on the deferential standard of palpable and overriding error. However, she submits that the correctness standard applies in this appeal because, and to the extent that, it “raises extricable questions of law related to the interpretation of the IDSSA and the supervising judge’s jurisdiction under [the] approval order” (appellant’s memorandum at paragraph 23).
[65] The Attorney General submits that the substantive issues raised in this appeal are principally concerned with interpretation of the IDSSA, and to that extent are subject to review on the deferential palpable and overriding error standard. However, he recognizes that the supervising judge’s determination of the scope of his jurisdiction to intervene raises a question of law, subject to review for correctness.
[66] Similarly, class counsel rely on Fontaine in submitting that the supervising judge’s interpretation of the IDSSA is reviewable for palpable and overriding error, absent an extricable error of law. They also accept, based on the Supreme Court’s decision in J.W., that Ms. Waldron’s entitlement to obtain the relief sought and the supervising judge’s entitlement to grant it are subject to review for correctness.
[67] I accept the parties’ substantial agreement on the issue of standards of review. I will consider the second issue identified above—whether the supervising judge erred in interpreting the IDSSA—on the standard of palpable and overriding error, except to the extent that it involves extricable questions of law, which call for correctness review. I will treat the third and fourth issues as reviewable on the standard of correctness. . Waldron v. Canada (Attorney General)
In Waldron v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered an appeal against a ruling of the supervising judge of an indigenous class action settlement. In these quotes the court summarizes the Indian Day School Settlement Agreement (IDSSA):II. Background
A. The IDSSA
[4] The underlying action was certified as a class action in 2018, on consent. As certified, the action alleged among other things that in its operation of Indian day schools, Canada breached fiduciary, constitutional, statutory, and common law obligations owed to survivors of the school system, and that it infringed their Aboriginal rights.
[5] Settlement negotiations took place over 17 days during the period August to December 2018. The parties reached a settlement in principle in November 2018 and a settlement in March 2019. The settlement was documented in the IDSSA. Recital G to the IDSSA states:The parties intend there to be a fair, comprehensive and lasting settlement of claims related to Indian Day Schools, and further desire the promotion of healing, education, commemoration, and reconciliation. They have negotiated this Settlement Agreement with these objectives in mind. [6] Among the benefits the IDSSA provides is individual compensation to Indian day school survivors. Further details concerning the compensation payable and the claims process are set out below beginning at paragraph 15.
[7] In addition to a claims process for survivor class members, the IDSSA provides for the establishment of a $200 million legacy fund, which the parties agreed would support legacy projects contributing to truth, healing, and reconciliation. The IDSSA states that it is intended that both survivor class members and family class members (spouses, former spouses, children, grandchildren, and siblings of survivor class members) benefit from these projects.
[8] The IDSSA contains (in section 1.12) a release in favour of Canada. It also contains an “entire agreement” clause (in section 1.13), and states (in section 14.02) that except as expressly provided, no amendment may be made to the agreement unless agreed to by the parties—that is, the representative plaintiffs and the Attorney General—in writing and approved by the Federal Court.
[9] In August 2019, after a three-day settlement approval hearing in May 2019 (about which more will be said later in these reasons), the supervising judge approved the IDSSA, including the claims process and a draft claim form. In giving his approval, he described the IDSSA (McLean v. Canada, 2019 FC 1075 at para. 1) as “the culmination of litigation concerning tragic, scarring events in the lives of those who attended Indian Day Schools. These events include mockery, belittlement, and physical, sexual, cultural and emotional abuse, which are soul damaging.” He recognized that “[h]ealing will be a long-term process at best.”
[10] The settlement approval order described the settlement as “fair, reasonable and in the best interests of the Plaintiffs and the Class Members” (McLean v. Canada, 2019 FC 1074 at para. 2). In his reasons for granting the settlement approval order (2019 FC 1075 at para. 145), the supervising judge similarly concluded that the settlement agreement was “fair and reasonable and in the best interests of the Class as a whole.”
[11] The approval order expressly incorporated the IDSSA, and required that it be implemented in accordance with the approval order and further orders of the Court (2019 FC 1074 at para. 3). The order addressed the further role of the Court in the following terms (2019 FC 1074 at para. 9):
This Court, without in any way affecting the finality of this Order, reserves exclusive and continuing jurisdiction over this action, the Plaintiffs, all Class Members who have not opted out of the Settlement Agreement, and the Defendant for the limited purposes of implementing the Settlement Agreement and enforcing and administering the Settlement Agreement and this Order.
[12] No appeal was brought from the approval order by any party entitled to appeal.
[13] A class member did bring a motion to this Court under rule 334.31(2) of the Federal Courts Rules, S.O.R.98/106, for leave to exercise the right of appeal of the representative plaintiffs. The motion was heard by Rivoalen J.A. (as she then was) and dismissed: Ottawa v. McLean, 2019 FCA 309.
[14] In dismissing the motion, she agreed (at paras. 19-21) with the statement of the Court of Appeal for Ontario in Bancroft‑Snell v. Visa Canada Corporation, 2019 ONCA 822 at para. 22, leave to appeal refused, 2020 CanLII 23634 (SCC) and 2020 CanLII 23637 (SCC), that “[t]here are sound policy reasons why class members should not be entitled to appeal a settlement order where the representative plaintiff declines to do so.” She was also (at para. 22) “not satisfied that the appeal itself [was] in the best interests of the Class.”
B. Compensation payable to survivor class members
[15] Under the IDSSA, compensation is available to survivor class members who experienced harm associated with attending an Indian day school during the class period (which runs from January 1, 1920 to the date of closure or transfer from Canada of the particular school). The amount of compensation to which a claimant is entitled is based on a grid, or levels of harm, established following an analysis of damage awards in analogous cases.
[16] There are five levels on the grid, from the lowest, level 1, to the highest, level 5. The higher the level, the more serious is the sexual or physical abuse and resulting harm required to establish a claim, and the greater is the amount of compensation payable if the claim is established—from $10,000 for a level 1 claim to $50,000, $100,000, $150,000, and $200,000 respectively for claims at levels 2, 3, 4, and 5.
C. The claims process
[17] In his reasons for granting settlement approval, the supervising judge described the claims process under the IDSSA (2019 FC 1075 at para. 43) as “based on a simple claim form on which claimants self identify a single level of compensation.”
[18] The IDSSA called for the process to be administered by a claims administrator appointed by the Federal Court on the recommendation of the parties. The settlement approval order appointed Deloitte as claims administrator. The order described the claims administrator’s role as follows (2019 FC 1074 at para. 11):Subject to the Court’s ongoing supervision and orders, the Claims Administrator will develop, install and implement systems, forms, information, guidelines and procedures for processing and making decisions on Claim Applications in accordance with the Settlement Agreement and will develop, install and implement systems and procedures for making payments of compensation in accordance with the Settlement Agreement. [19] Section 9.03 of the IDSSA is entitled “Principles Governing Claims Administration”. The principles it enumerates include the following.. The Claims Process is intended to be expeditious, cost-effective, user-friendly and culturally sensitive.
. The intent is to minimize the burden on the Claimants in pursuing their Claims and to mitigate any likelihood of re-traumatization through the Claims Process.
. The Claims Administrator […] shall, in the absence of reasonable grounds to the contrary, assume that a Claimant is acting honestly and in good faith.
. In considering an Application, the Claims Administrator […] shall draw all reasonable and favourable inferences that can be drawn in favour of the Claimant, as well as resolving any doubt as to whether a Claim has been established in favour of the Claimant. [20] According to the partner of Deloitte who manages its engagement as claims administrator, Deloitte designed the claims process on the basis that claimants would submit one claim form for processing and adjudication, and that “progressive disclosure”—the ability for claimants at the intake stage to change their self-identified level of harm or add narrative or further documents to their claim form once submitted—was not to be part of the process.
[21] Sections 9 and 10 of the IDSSA, together with Schedule B, set out further particulars of the claims process and the role of the claims administrator. The IDSSA provides two and a half years for Class Members to file their claims. It also provides for both emotional and legal support to class members in the claims process through the office of the claims administrator, class counsel (whose services are free to class members), or counsel of the class member’s choosing.
[22] The claims administrator’s determination of whether a claimant is entitled to compensation, and if so at what level, is to be based on the information provided in the claim form, the final version of which was also approved by the supervising judge. A decision of the claims administrator is final and binding on the claimant without any recourse or appeal, except as set out in the claims process.
[23] The claim form sets out descriptions of harm corresponding to each of the five levels. Claimants are to describe their experience at an Indian day school by reference to these descriptions and self-identify the level of compensation they are claiming, corresponding to the most serious harm they claim to have suffered. Claimants are also to provide supporting documentation, the nature of which depends on the level of compensation claimed. Claimants may, in the alternative, submit a declaration that they do not have access to the required documentation.
[24] According to the approved claims process, the claims administrator, after reviewing a claim form, is to send one of three acknowledgment letters to the claimant: a letter confirming the claimant’s eligibility as a class member; a letter denying the claimant’s eligibility as a class member; or a letter requesting additional information (such as a missing signature or copy of a document) to determine the claimant’s eligibility as a class member.
[25] As noted above, level 1 is the lowest level of claim. To meet the requirements for a level 1 claim, the claimant need only allege verbal abuse or physical abuse, “including but not limited to culturally unreasonable or disproportionate acts of discipline or punishment.” The claim form instructs claimants to select level 1, and place a mark in the corresponding box, if that description “represents the most serious abuse/harm that [the claimant] experienced.” It states that if the claimant selects level 1, “no further description is required.”
[26] Canada is to pay $1.27 billion (and up to $1.4 billion if required) to fund the payment of level 1 claims, and has no right to be informed of or object to claims at that level.
[27] As the self-identified level of claim increases from level 2 to level 5, claimants must disclose increasingly more serious physical and/or sexual abuse to establish their claims. These claims can be supported by disclosing physical or mental impairment over time that is linked to abuse.
[28] The claim form instructs claimants to identify the abuse or harm they suffered by reference to the descriptions of level 2 to 5 abuse or harm set out in the grid. They are then instructed to “Select [their] Claim Level, by placing a mark in one box below, for the Level of abuse/harm [they] suffered as identified above [on the form].” Beside four boxes, one for each level from 2 to 5 and the corresponding compensation level, the form then states, “Place a MARK in ONE box” (emphasis in original). The claim form contains no provision for making multiple claims or for changing the level of a claim once selected.
[29] Canada has the right to provide the claims administrator with supplemental information regarding eligibility for compensation at levels 2 to 5. It is to transfer funds directly to the claims administrator as necessary to provide for payment of claims at these levels.
[30] If the claims administrator determines that a claim meets or exceeds the criteria for a class member’s selected level, payment is processed at the level assessed by the claims administrator. If the claims administrator is of the view that the claim does not meet the criteria for the self-identified level, it must notify the class member and provide brief reasons for this conclusion. The class member then has the right to have the claim reconsidered, and may submit a response to the claim administrator’s reasons and provide additional information.
[31] If, despite the response and the additional information provided, the claims administrator remains of the view that the class member is eligible for compensation only at a level below the self-identified level, the class member has a right of review by a third party assessor. The third party assessor may invite the class member to provide more information, including by means of a video recording of the class member’s evidence.
[32] The claims process expressly contemplates in only two circumstances the possibility that survivor class members may submit additional documentation in support of their filed claims: (1) in response to an acknowledgment letter from the claims administrator requesting missing information (such as a signature or a copy of personal identification) or (2) in the course of reconsideration or third party review of a claim made at one of levels 2 to 5. According to the claims administrator, it would also consider missing information submitted by a claimant where the claimant identified the omission to provide missing information before the claims administrator requested it. Beyond these limited circumstances, there is nothing in the claims process that could be considered provision for progressive disclosure.
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