Residential Schools Settlement Approval: Testing Jurisdictional Boundaries Or Vigilant Scrutiny?
| Author | Celeste Poltak |
| Pages | 431-458 |
431
RESIDENTIAL SCHOOLS
SETTLEMENT APPROVAL: TESTING
JURISDICTIONAL BOUNDARIES OR
VIGILANT SCRUTINY?
Celeste Poltak1
“The changes that the court requires to the settlement are neither mate-
rial nor substantial in the context of its scope and complexity. It would
serve the interests of the proposed class to have these issues dealt with in
an expeditious manner”2
– Justice W. Winkler, R.S.J., as he then was,
Baxter v. Canada (Attorney General)
(15 December 2006)
“There is another view that is reasonably arguable, that the conditions
are not ‘substantially the same as’ the terms of the settlement agreement.
If the alternative interpretation is adopted it will be open to Canada to
treat the settlement agreement as terminated and 78,000 Aboriginal
claimants will be returned to their pre-settlement plight.”3
– Justice P. Schulman, Semple v. Canada (Attorney General)
(15 December 2006)
A. INTRODUCTION
During December 2006 and January 2007, “split” decisions were rendered
by nine courts across Canada regarding the Indian Residential Schools
(IRS) settlement approval motions. Five courts took Justice Winkler’s
approach above and approved the proposed settlement agreement
(the Agreement) subject to certain modifications;4 four courts adopted
1 Celeste Poltak, LL.M, is an associate at Koskie Minsky LLP in Toronto and is a
member of the Bars of Alberta and Ontario.
2 Baxter v. Canada (Attorney General), [2006] O.J. No. 4968 at para. 85 [Baxter].
Northwest v. Canada (Attorney General), 2006 ABQB 902, McMahon J. [Northwest];
432 THE CANADIAN CLASS ACTION REVIEW
Justice Schulman’s reasoning, approving the settlement unconditionally
and without any change whatsoever.5 Pursuant to the language of the
Agreement itself, it required approval of the nine courts on substantially
similar terms. During the approval motions, the parties argued that the
courts were only permitted to approve or reject the Agreement presented
in its current indivisible form. Immediately the question became whether
approval had been granted on substantially similar terms and whether
the courts had exceeded their jurisdiction by insisting that certain altera-
tions be made to the agreement. At the time, some suggested that the five
courts were attempting to judicially alter the terms of the Agreement,
thereby committing an excess of jurisdiction.
After release of the nine decisions, the parties produced further docu-
mentation in response to the five courts’ concerns and appeared again
before all nine judges sitting together in Calgary, Alberta.6 Ultimately,
following the parties’ appearance in Calgary, all nine courts signed iden-
tical orders in March 2007 which incorporated the five courts’ concerns
and approved the settlement. However, the outstanding query is whether
these decisions have altered the settlement approval landscape. There
remains no appellate authority in Canada regarding the jurisdictional
parameters on settlement approval.
It will remain to be seen whether a court’s jurisdiction on settlement
approval has been expanded for future cases or whether this case was
truly sui generis, given the nature of the claims, the particular vulnerabil-
ity of the class, the identity of the defendant, and the historical nature of
the settlement. As discussed below, the courts’ proposed administrative
changes, protocols, or remedies should not be characterized as material
amendments to the Agreement, thereby vitiating what the parties negoti-
ated and voluntarily agreed upon. Rather, the insistence of the courts to
require certain additions to the Agreement was a proper and appropriate
assumption of their respective supervisory roles and responsibilities, pur-
above note 2, Winkler J.; Bosum v.Canada (Attorney General), [2006] Q.J. No.
14319 (C.S.), Tingley J. [Bosum].
24, Kilpatrick J. [Ammaq].
6 Five judges appeared in person (Justices Brenner, McMahon, Ball, Winkler, and
Tingley) while the other four judges (Justices Schulman, Veale, Kilpatrick, and
Richard) attended via telephone conference.
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