In a move Sixties Scoop class action organizers in Ontario are calling “astonishing,” Ottawa is asking for individual hearings to assess the harm done to each survivor and the compensation they should receive.
This comes four months after an Ontario court found the federal government liable for the harm endured by about 16,000 Sixties Scoop survivors who lost their cultural identities when they were taken from their homes on reserves and placed with non-Indigenous adoptive families during a period between 1965 and 1984.
“This would not only come at an exorbitant cost to taxpayers, it would block access to justice for thousands of Indigenous Ontarians.”
Crown lawyers had hoped to argue that court’s decision didn’t establish liability, but the judge had rejected that proposal.
The memo also says causation can’t be established on a case-wide basis and that there shouldn’t be a blanket settlement for victims.
“The government is calling for 16,000 additional individual trials to determine if harm was done,” said Jeffry Wilson, lead attorney for the claimants in a news release. “This would not only come at an exorbitant cost to taxpayers, it would block access to justice for thousands of Indigenous Ontarians.”
Lead claimant Marcia Brown Martel, who has presented the government with a framework for settlement out of court, said “it’s as if Canada is saying that the judge’s decision in February meant nothing,”
While Martel’s settlement proposal does include direct payments, survivors would also contribute parts of their compensation to a healing foundation for survivors, a scholarship for research on the value and protection of cultural identities in Canada, and a public art installation acknowledging the history of the Sixties Scoop.
“What we envisioned was a path forward, the start of a new relationship between survivors and Canada,” said Martel. “What we got was a painful reminder that we are all still standing in the dark. It is time for Canada to turn the light on. ”
There are currently 17 other Sixties Scoop cases making their way through courts across the country.
In a brief, the government said class members should come forward “in individual issues trials to prove class identification, causation, damages and quantum of damages,” if Martel and Roberta Commanda, another plaintiff, manage to prove harm and are awarded damages first.
Earlier in the process, an Ontario judge endorsed individual issue trials as the preferable way to resolve the claims.
“We’d really, really rather get this out of the court.”
The government laid out a number of differences in individual circumstances as reasons why there shouldn’t be a single assessment — for example, some children who were placed in foster care retained connections to their biological family, while those placed in foster homes lost them; some were adopted as infants while others were older; and some were placed in homes with one Aboriginal parent.
The plaintiffs have asked for $1.3 billion, with each class action member receiving around $85,000.
“You can’t just say if you fit this broad definition, this is what you get. That’s the only point we’re disagreeing on in court,” said James Fitz-Morris, director of communications for Indigenous and Northern Affairs Minister Carolyn Bennett. “We’re not denying liability, we’re not denying damages.”
“We’d really, really rather get this out of the court,” said Fitz-Morris, adding that there was an initial meeting with Brown’s lawyers in May about negotiating a settlement, and that another one is imminent.