Four months after an Ontario court found that the federal government failed to protect the cultural identity of Indigenous children who were adopted into non-Indigenous families, Ottawa says each of the estimated 16,000 victims must demonstrate how much harm they suffered and assess how much compensation they are owed.
Indigenous Affairs Minister Carolyn Bennett said in March that she would not appeal the ruling of Ontario Superior Court Justice Edward Belobaba, who found that "great harm was done" to children who were removed from their homes on reserves between 1965 and 1984 as part of what is known as the Sixties Scoop. Ottawa has started negotiations to expedite resolutions in the Ontario case and in the 17 other Sixties Scoop cases across the country that are working their way through the legal system.
But on June 9, Justice Department lawyer Catharine Moore wrote to Justice Belobaba, who had scheduled a hearing date in October to set damages, to say there should be no blanket settlement with the victims of the Ontario class-action suit.
If Marcia Brown Martel and Robert Commanda, the lead claimants in the case, can prove that the government committed a civil harm against them and are awarded damages, "then other class members, if they are inclined to do so, can come forward in individual issues trials to prove class identification, causation, damages and quantum of damages," the government said in a brief that accompanied Ms. Moore's letter.
"The court and the parties always contemplated that class identification, causation, damages and quantum of damages would have to be determined individually," the brief said.
The government says the unique circumstances faced by each child who was removed from their community means there can be no single assessment of the government's liability. Some of the children were put into foster care and some were adopted. Some were taken as infants and some were taken as older children. And some were placed in families with one Indigenous parent, while others were not.
Morris Cooper, a lawyer for the victims, says the government's arguments amount to an appeal of Justice Belobaba's decision and would require 16,000 individual trials. It appears the government is prepared to establish a process similar to the one set up to compensate Indigenous people who were sexually or physically assaulted at Canada's infamous residential schools, Mr. Cooper said – a process "which can fairly be said as simply retraumatizing the victims and requiring a vast infrastructure of claims processes."
In addition, he said, holding individual hearings would be logistically complicated, as many of the plaintiffs have moved to the United States or even Europe.
He argues that each class-action member should be given the same award.
"It's really a question of whether you want to deliver perfect justice or good justice," he said. "Perfect justice would require 16,000 trials. But just saying it should lead to the conclusion that it's profoundly inappropriate, not only for the practicalities of holding that many hearings, but for the difficulties associated with where the victims of the Sixties Scoop are dispersed."
The lawyers in the Ontario case are asking for $1.3-billion – about $85,000 for each class-action member.
The government, meanwhile, says it is still determined to press ahead with negotiations to settle the Sixties Scoop cases.
Dr. Bennett has said that, for many victims, the resolution is about more than money, and the government is prepared to look at broad solutions, such as language and cultural programs, which cannot be ordered by the courts.