Federal Court Decisions

ORDER

UPON HEARING THE MOTION made by the Plaintiffs, on consent, for an Order for certifying this action as a class proceeding pursuant to Rule 334.16(1) of the Federal Courts Rules [the Rules] against the Defendant;

ON READING the certification motion of the Plaintiffs and upon being advised of the consent of the Defendant;

AND UPON HEARING AND READING the oral submissions of counsel for the Plaintiffs and the Defendant;

THIS COURT ORDERS that:

1. This action is hereby certified as a class proceeding pursuant to Rule 334.16(1) of the Rules.

2. The Class is hereby defined as follows:

All Indigenous persons, as referred to by the Supreme Court of Canada in Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, at para. 6, excluding Indian persons (as defined in the Indian Act) and Inuit persons, who were removed from their homes in Canada between January 1, 1951 and December 31, 1991 and who were placed in the care of non-Indigenous foster or adoptive parents.

3. The claims asserted on behalf of the Class against the Defendant are negligence and breach of fiduciary duty.

4. The common issues shall be defined as follows:

1. Did Canada have a fiduciary duty to take reasonable steps to prevent all Indigenous persons, as referred to by the Supreme Court of Canada in Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, at para. 6, excluding Indian (as defined in the Indian Act) and Inuit persons, who were placed in the care of non-Indigenous foster or adoptive parents from losing their Indigenous identities?

2. If the answer to a. is yes, did Canada breach this duty?

3. Did Canada owe a common law duty of care to take reasonable steps to prevent all Indigenous persons, as referred to by the Supreme Court of Canada in Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, at para. 6, excluding Indian (as defined in the Indian Act) and Inuit persons, who were placed in the care of non-Indigenous foster or adoptive parents from losing their Indigenous identities?

4. If the answer to c. is yes, did Canada breach this duty?

5. If the answer to either (b) or (d) is yes, can the Court make an aggregate assessment of some or all of the damages suffered by the Class as part of the common issues trial?

6. If the answer to either b. or d. is yes, is an award of punitive damages warranted?

7. If the answer to f. is yes, what amount of punitive damages ought to be awarded?

5. The representative Plaintiffs hereby appointed are Shannon Varley and Sandra Lukowich who are deemed to constitute adequate representative Plaintiffs of the Class.

6. Koskie Minsky and Paliare Roland Rosenberg Rothstein LLP are appointed Class Counsel.

7. Kutzman Carson Consultants LLC (the Administrator) be and is hereby appointed as the Administrator.

8. Notice of Certification shall be provided in the forms attached as Schedule “A” [the Short Form Notice] and Schedule “B” [the Long Form Notice] and in the manner described at Schedule “C”.

9. The Notice Plan provided for in paragraph 8 above satisfies the requirements of the applicable class proceedings law and this Court, and is the best notice practicable under the circumstances.

10. The expense of notice in paragraph 8 above shall be borne by the Defendant, subject to review and readjustment by agreement or order at the termination of this proceeding.

11. A Class Member may opt out of this class proceeding by delivering a signed opt-out coupon, in the form attached as Schedule “D”, by November 3, 2021 [the Opt Out Deadline] to the Administrator by email, mail or facsimile and must be received or post-marked, if delivered by mail, by the Opt Out Deadline.

12. No Class Member may opt out of the class proceeding after the Opt Out Deadline, except with leave of the Court.

13. Class Counsel may make non-material changes to the notice and the Opt Out Form as are necessary and desirable with the consent of the Defendant.

14. The notice period shall commence on July 2, 2021 and conclude on November 3, 2021 unless otherwise ordered by the Court.

15. The Litigation Plan attached hereto as Schedule “E” is hereby approved.

16. Pursuant to Rule 334.39(1) of the Rules, there shall be no costs payable by either party for the motion.