Judge re­jects Six­ties Scoop set­tle­ment ap­peal, cit­ing ‘ex­treme’ lack of ev­i­dence

The Globe and Mail (Alberta Edition) - - NEWS - COLIN PERKEL

A last-ditch ef­fort to chal­lenge the court-ap­proved set­tle­ment of the Six­ties Scoop class ac­tion failed on Fri­day when a judge tossed the novel at­tempt as lack­ing any sub­stance.

In his de­ci­sion, Jus­tice John Laskin of the Fed­eral Court of Ap­peal said the ap­pli­cants had pro­vided no sup­port for their highly un­usual mo­tion seek­ing leave to ap­peal the set­tle­ment. “The ev­i­dence filed by the ap­pli­cants is in­ad­e­quate in the ex­treme,” Jus­tice Laskin wrote.

The rul­ing, bar­ring any fur­ther court machi­na­tions, paves the way for im­ple­men­ta­tion of the $750-mil­lion class-ac­tion set­tle­ment. The fed­eral gov­ern­ment had said it could not pro­ceed with pay­outs to vic­tims pend­ing fi­nal­ity in the court pro­ceed­ings.

The re­quest to ap­peal the agree­ment fi­nal­ized over the sum­mer rather than opt out – fewer than a dozen class mem­bers did so – came from a group of 11 claimants who said they were Scoop vic­tims, al­though two of the plain­tiffs sub­se­quently dropped out of the pro­ceed­ing. They filed their ap­pli­ca­tion through a law firm that had been shut out of the $75mil­lion in le­gal fees agreed to as part of the class-ac­tion set­tle­ment.

Among other things, they al­leged they were ex­cluded from the process that led to court ap­proval of the agree­ment that would pay sur­vivors as much as $50,000 apiece for the harms done when they, as chil­dren, were taken from their Indige­nous fam­i­lies and placed with non-Indige­nous ones. They also ex­pressed un­hap­pi­ness over the fees awarded to the lawyers who ne­go­ti­ated the deal.

Jus­tice Laskin noted the ap­pli­cants failed to show they were sur­vivors of the Six­ties Scoop and there­fore mem­bers of the class. Nor did they pro­vide ev­i­dence that an ap­peal of the set­tle­ment would be in the best in­ter­ests of sur­vivors, he said.

One of the ap­pli­cants, Joan Frame, of Hamil­ton, had al­leged to The Cana­dian Press that the lawyers who ne­go­ti­ated the set­tle­ment–some of whom worked on the case for free for the bet­ter part of a decade – “re­sorted to trick­ery” to get the agree­ment. Jus­tice Laskin also took is­sue with such as­ser­tions, say­ing the ap­pli­cants had of­fered no ev­i­dence in sup­port. While it is nor­mal in lit­i­ga­tion for the los­ing party to be on the hook for the le­gal costs in­curred by the win­ners, the win­ning lawyers are seek­ing costs per­son­ally from the lawyer who filed the ap­peal mo­tion given the se­ri­ous mis­con­duct al­le­ga­tions he made against them.

Jus­tice La skin de­clined to award costs un­til lawyer JaiSingh Sheikhupura with Van­cou­ver-based Wat­son Goe­pel has had an op­por­tu­nity to make sub­mis­sions. He has un­til Nov. 19 to do so. “We are pleased that the Fed­eral Court of Ap­peal has cleared away the last im­ped­i­ment to the set­tle­ment be­ing im­ple­mented,” said Kirk Baert, one of the lawyers in­volved in the class ac­tion. “Now the set­tle­ment funds can flow to the sur­vivors as in­tended.”

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