Using Class Actions to Redress Historical Wrongs Committed By the Government

• Author: Emily Unrau
• Pages: 339-363

339

usInG Class aCTIons

To redress HIsTorICal

wronGs CoMMITTed

bY THe GoVernMenT

Emily Unrau

Abstract: The author argues that in many circumstances

class actions can be an effective tool to redress historical

wrongs committed by the C anadian government. First, a his-

torical wrong’s suitabil ity to be brought as a class proceeding

must be assessed on the basis of whether the action meets

the stated aims of judicial economy, access to justice, and be-

haviour modif‌ication, as well as through an analysis of other

pragmatic issues. Like the majority of class actions, those

for historical wrongs generally result in a settlement. Next,

an examination of these settlements reveals that they can be

understood to offer appropriate redress for historical wrongs

when viewed through a reconciliatory, not a restorative, lens.

Rather than claiming that monetary compensation restores

the status quo, the reconciliatory perspective of class action

settlements, exemplif‌ied by the Indian Residential School

Settlement Agreement, views them as a means to establish

trust and respect between perpetrator and victim. Finally,

class actions also play an important role where the govern-

ment is reluctant or unwilling to settle. In this situation, a

class action provides victims with the best hope of redress.

Essentially, class actions provide marginalized groups that

have suffered histor ical wrongs with an inst rumental and often

necessary tool to seek compensation from the government.

CCAR 8-2.indb 3394/25/2013 3:10:42 PM

CCAR 8-2.indb 3404/25/2013 3:10:42 PM