Sparvier et al. v. Canada (Attorney General),

• Jurisdiction: Saskatchewan
• Judge: Ball, J.
• Neutral Citation: 2006 SKQB 533
• Citation: 2006 SKQB 533,(2006), 290 Sask.R. 111 (QB),2006 FCA 533,[2006] SJ No 752 (QL),290 Sask R 111,290 Sask.R. 111,(2006), 290 SaskR 111 (QB),290 SaskR 111,[2006] S.J. No 752 (QL)
• Date: 15 December 2006
• Court: Court of Queen's Bench of Saskatchewan (Canada)

Sparvier v. Can. (A.G.) (2006), 290 Sask.R. 111 (QB)

MLB headnote and full text

Temp. Cite: [2006] Sask.R. TBEd. DE.028

Kenneth Sparvier, Dennis Smokeyday, Rhonda Buffalo, John Doe I, Jane Doe I, John Doe II, Jane Doe II, John Doe III, Jane Doe III, John Doe IV, Jane Doe IV, John Doe V, Jane Doe V, John Doe VI, Jane Doe VI, John Doe VII, Jane Doe VII, John Doe VIII, Jane Doe VIII, John Doe IX, Jane Doe IX, John Doe X, Jane Doe X, John Doe XI, Jane Doe XI, John Doe XII, Jane Doe XII, John Doe XIII, Jane Doe XIII, and other John and Jane Does Individuals and Entities to be added (plaintiffs) v. Attorney General of Canada, and other James and Janet Does Individuals and Entities to be added (defendant)

(2005 Q.B.G. No. 816; 2006 SKQB 533)

Indexed As: Sparvier et al. v. Canada (Attorney General)

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Ball, J.

December 15, 2006.

Summary:

The parties applied for certification of the action as a class proceeding and for approval of a proposed settlement, including approval of legal fees payable to the plaintiffs' counsel. Similar applications for approval had been made in courts in eight other Canadian jurisdictions. As a term of the proposed settlement, the parties agreed to combine this action and all other outstanding residential schools' litigation into one omnibus class action to be filed in every jurisdiction. If all nine jurisdictions approved the settlement on substantially the same terms and conditions, it was expected that all of the litigation would be brought to an end.

The Saskatchewan Court of Queen's Bench certified the action as a class action and approved the Settlement Agreement in its entirety upon the court receiving assurances that certain deficiencies would be addressed. Approval of the Settlement Agreement included those portions which provided for payment of legal fees to the National Consortium, Merchant Law Group (MLG) and independent counsel.

Barristers and Solicitors - Topic 3311

Compensation - Measure of compensation - Class actions - The Saskatchewan Court of Queen's Bench referred to the factors to be considered in determining the fees payable to plaintiffs' counsel in class actions - See paragraphs 44 to 45.

Practice - Topic 9862.1

Settlements - Court approval - Class actions (incl. fee approval) - The parties applied for certification of the action as a class proceeding and for approval of a proposed settlement, including approval of legal fees payable to the plaintiffs' counsel - Similar applications for approval had been made in residential schools litigation in eight other Canadian jurisdictions - The Saskatchewan Court of Queen's Bench certified the action as a class action and approved the Settlement Agreement in its entirety upon the court receiving assurances that certain deficiencies would be addressed - Approval of the Settlement Agreement included those portions which provided for payment of legal fees to the plaintiffs' counsel, including Merchant Law Group (MLG) - The court found that the provisions of the Settlement Agreement requiring payment of legal fees and disbursements to MLG were clear and enforceable - If the Federal Representative and MLG could not agree on an amount, it was to be determined by an action in the Saskatchewan Court of Queen's Bench with the amount of legal fees payable to MLG to in no event be more than $40 million or less than $25 million - If the parties could not agree and an action became necessary, it would be incumbent on MLG to adduce all relevant evidence to verify its claim in a format that did not breach solicitor client privilege - If MLG did not do so, it could not expect to receive payment of more than $25 million - The agreed minimum amount and the process for determining the actual amount payable to MLG were approved as part of the entire Settlement Agreement.

Cases Noticed:

Smith et al. v. Brockton (Municipality) et al., [2004] O.T.C. Uned. 206 (Sup. Ct.), refd to. [para. 13].

Fischer et al. v. Delgratia Mining Corp. et al., [1999] B.C.T.C. Uned. 866 (S.C.), refd to. [para. 44].

Killough et al. v. Canadian Red Cross Society et al., [2001] B.C.T.C. 1745 (S.C.), refd to. [para. 44].

Knudsen v. Consolidated Food Brands Inc., [2001] B.C.T.C. 1837 (S.C.), refd to. [para. 44].

Windisman v. Toronto College Park Ltd. (1996), 10 O.T.C. 375; 3 C.P.C.(4th) 369 (Gen. Div.), refd to. [para. 44].

Gariepy et al. v. Shell Oil Co. et al., [2003] O.T.C. 555 (Sup. Ct.), refd to. [para. 44].

White v. Canada (Attorney General) et al., [2006] B.C.T.C. 561; 2006 BCSC 561, refd to. [para. 45].

Endean v. Canadian Red Cross Society et al., [2000] B.C.T.C. 436; [2000] 8 W.W.R. 294; 78 B.C.L.R.(3d) 28; 2000 BCSC 971, refd to. [para. 45].

Lam et al. v. Ajinomoto U.S.A. Inc. et al., [2004] B.C.T.C. 651; 47 C.P.C.(5th) 122; 2004 BCSC 651, refd to. [para. 45].

H.L. v. Canada (Attorney General) et al., [2005] 2 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 61].

Counsel:

Kirk M. Baert and Celeste Poltak, for the plaintiffs and the National Certification Committee;

Catherine A. Coughlan and John Terry, for the Attorney General of Canada;

P. Jonathan Faulds, for the National Consortium of Counsel;

Eugene Meehan, Q.C., E.F. Anthony Merchant, Q.C., and Casey R. Churko, for the Merchant Law Group;

Bonnie B. Reid, for the Unaffiliated Counsel;

W. Rod Donlevy and Michel G. Thibault, for the Catholic Entities;

Alexander D. Pettingill, for the Protestant Entities;

John K. Phillips and Laura C. Young, for the Assembly of First Nations.

This application was heard before Ball, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following fiat on December 15, 2006.