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Indian Residential Schools Settlement Agreement ('IRSSA'). Brandon v. Canada
In Brandon v. Canada (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, this brought against "a decision of the Federal Court (2025 FC 443) striking his statement of claim without leave to amend" on the basis of a prior settlement ["the release contained in the Indian Residential Schools Settlement Agreement ("“IRSSA”")"] - but where no class proceeding certification was obtained:[4] Mr. Brandon’s proposed amended statement of claim alleges that Canada owed second-generation Residential School survivors a duty of care, which it breached, to teach and provide their parents with the necessary life skills, including effective parenting skills, to function as peaceful and well-functioning adults after leaving the Residential School system. Mr. Brandon alleges that the harms that he suffered were a foreseeable consequence of the psychological, physical, sexual, and spiritual abuse his parents were subjected to.
[5] The action was filed as a proposed class proceeding on April 2, 2024. Prior to a motion for certification, the Crown had advised Mr. Brandon of perceived deficiencies in the claim. As a result, the case management judge ordered Mr. Brandon to provide a written response to the Crown, including any proposed amended statement of claim. Mr. Brandon did not do so by the deadline. Consequently, on December 30, 2024, the Crown brought a motion under Rule 221(1)(a) of the Federal Courts Rules, S.O.R./98-106 to strike the claim without leave to amend on the basis that it failed to disclose a reasonable cause of action. In particular, the Crown alleged that the claim was barred by the release contained in the Indian Residential Schools Settlement Agreement ("“IRSSA”").
[6] In 2006, various parties, including the Crown in right of Canada, entered into the IRSSA. Its preamble states, among other things, that the parties thereto desire a fair, comprehensive and lasting resolution to the legacy of Indian Residential Schools. The IRSSA resolved the claims of the IRSSA class members. In so doing, it provides for individual compensation for Residential School survivors, along with larger funding initiatives aimed at addressing the intergeneration effects and the legacy of Residential Schools. In addition, the IRSSA includes a comprehensive release.
[7] At the time, the parties to the IRSSA agreed to combine numerous outstanding Residential Schools’ litigation into one omnibus class action that was filed in nine jurisdictions, including in Saskatchewan where Mr. Brandon resides. The nine superior courts across Canada then approved the IRSSA on substantially the same terms and conditions (see e.g. Sparvier v. Canada (Attorney General), 2006 SKQB 533 at paras. 2–3 [Sparvier]). As stated by Justice Ball in the Saskatchewan proceedings, "“[t]his settlement is unique in that it responds to historic wrongs perpetrated against First Nations’ people in Canada”" (Sparvier at para. 4). Justice Ball agreed with the decision of Justice Winkler of the Ontario Superior Court in Baxter v. Canada (Attorney General), 2006 CanLII 41673 (ON SC), 83 O.R. (3d) 481 [Baxter] which noted that "“[f]or over 100 years, Canada pursued a policy of requiring the attendance of Aboriginal children at residential schools […] In its attempts to address the damage inflicted by, or as a result of, this long-standing policy, the settlement is intended to offer a measure of closure for the former residents of the school[s] and their families.”" (Baxter at para. 2; Sparvier at para. 4).
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[19] Mr. Brandon’s claim, including as re-framed in the amended statement of claim, does not disclose a reasonable cause of action. I find no reviewable error in the Federal Court’s characterization of the claim. The wrongs alleged in Mr. Brandon’s claim relate to the abuse his parents were subject to while attending Residential Schools and the Crown’s alleged failure to provide his parents with necessary life skills, notably effective parenting skills. The Federal Court did not err in concluding that these factual allegations are actions that are contemplated by the IRSSA, including the release.
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[20] I turn now to the definition of a "“Class Member”". Mr. Brandon, a child of Residential School survivors, born in 1991, and living in Saskatchewan at the time the IRSSA was entered into, clearly falls within the Class. Furthermore, Mr. Brandon, as a child of Survivor Class Members, falls within the definition of the Family Class (Saskatchewan Judgment at para. 5). Counsel for Mr. Brandon submits that, as he was a minor in 2006, the IRSSA is voidable and may be rescinded upon attaining the age of majority. I disagree. Paragraph 28 of the Saskatchewan Judgment provides that the IRSSA and the judgment "“are binding upon each Class Member, including those persons who are minors or are mentally incapable and that any requirements or rules of civil procedure which would impose further obligations”" are dispensed with.
[21] The Federal Court committed no reviewable error in concluding that Mr. Brandon’s claim is barred by the release. Given that Mr. Brandon is a Class Member, and a member of the Family Class, he is bound by the comprehensive release contained at paragraph 15 and his claim is conclusively barred by the operation of paragraph 19 of the Saskatchewan Judgment.
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