The lawyer who declared the settlement reached between Sixties Scoop survivors and the federal government to be “terminated” because a judge decided the legal fees were too high says all parties must to come together to find a solution to the impasse.
Jeffery Wilson, who represents Indigenous people who were taken from their homes on Ontario reserves and adopted into non-native families during the 1960s, ‘70s and ‘80s, said Tuesday in a telephone interview that “everyone is working really hard to get a settlement in the interests of survivors.”
A website created by Mr. Wilson’s firm, Wilson Christen, advises victims that a national settlement reached last August with the federal government is “terminated.”
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That follows a decision last week in which Justice Edward Belobaba of the Ontario Superior Court said the settlement’s proposed payments of between $25,000 and $50,000 to Sixties Scoop victims are reasonable, but the $75-million that the government agreed to pay in legal fees as part of the deal are not.
Despite the suggestion the deal has ended, Mr. Wilson said there is room for negotiation. He said he would like to meet with the other lawyers and federal representatives as quickly as possible.
“The judge is very experienced and he’s indicated his concerns and now everyone is working very hard to respond to those concerns so that we can go forward,” said Mr. Wilson. “Let’s take that at face value and let’s see if we can come up with something that will satisfy the judge.”
Twenty-two Sixties Scoop class actions have been launched across Canada, each relating to victims in a particular province. But the Ontario case is the only one that has progressed through the courts.
Justice Belobaba found last year that the federal government was liable for the loss of the aboriginal language, culture and identity of those who were removed from their homes in Ontario. The federal government then used that decision as the basis for negotiating a national settlement.
Because Wilson Christen did the heavy lifting by winning the case in Ontario, the settlement stipulated that it would receive half of the $75-million in agreed legal fees – or $37.5-million – with the remaining $37.5-million being divided among three other firms representing clients in other provinces.
Justice Belobaba acknowledged in last week’s decision that Wilson Christen spent eight years fighting for Sixties Scoop survivors with no guarantee of ever being paid – payment would only come with a win in the case. The risks undertaken, the responsibility assumed, and the results achieved “were extraordinary,” he wrote.
But, even so, lawyers should not expect to receive a “windfall” in such large class-actions because it would set a precedent, he said, before arguing that a more reasonable payment to Wilson Christen would be $25-million.
As for the other firms, wrote Justice Belobaba, some were just “sitting in the bleachers pretty much risk-free” waiting to see what would happen in the Ontario case. He said their combined payments should be about $12.5-million.
Justice Belobaba suggested that the legal fees and the settlement to survivors be “de-linked” so that the Sixties Scoop victims could receive their money while the lawyers negotiate fees.
But Mr. Wilson said he did not know whether that is legally possible. “This is the stuff for legal scholars, interpretation, arguably an appeal. So the better use of our energy is to get everybody together and sort it out,” he said.
Sixties Scoop victims also argue that the fees and the settlement should be treated separately.
“We go on the sixtiesscoopclaim.com website and it says the settlement is terminated. We said ’what?!’ That put people in crisis,” said Colleen Cardinal, co-ordinator and co-founder of the National Indigenous Survivors of Child Welfare Network.
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“All we know right now is that the lawyers are trying to negotiate. Well, we are asking them to de-link their fees,” said Ms. Cardinal. “And if there is leftover money from the $75-million, put that towards the settlement or towards the healing foundation,” which was also to have been created as a result of the settlement.