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January 26, 2012 permalink
A class action lawsuit in Ontario on behalf of aboriginal victims of the Sixties Scoop has been dismissed by the court.
Legal setback for Ontario aboriginals taken from their families during the “Sixties Scoop”
The federal government has won its appeal in Divisional Court against a class-action lawsuit on behalf of 16,000 aboriginal children taken from reserves in Ontario in what’s known as the “Sixties Scoop.”
The decision is seen as a major setback for aboriginal plaintiffs, now adults, who allege Ottawa stripped them of their cultural identity by sending them off as children to non-aboriginal homes. Many told stories of abuse, alienation and isolation in foster and adoptive homes in Canada and the U.S.
“Canada’s strategy is to get us out of the way,” lead plaintiff Marcia Brown, 48, said Wednesday from Beaverhouse First Nation in northeastern Ontario. “It’s an injustice. What I truly feel is that this isn’t a fair system for First Nations’ people. ”
Brown, an Ojibwa who was taken when she was 4, says her non-aboriginal mother tried to wash away her “dirty brown colour” and burned a stuffed tiger full of “Indian bugs.”
However, their Toronto lawyer Morris Cooper vows the battle isn’t over.
Cooper, who represents the plaintiffs with fellow lawyer Jeffery Wilson, points out the residential schools case dragged on for years before a historic settlement was reached in 2005 for victims of a Canadian system that took hundreds of thousands of children from reserves and sent them to church-run schools.
Ottawa has deep pockets, says Cooper, and its strategy is to drag out legal proceedings at great cost in taxpayer dollars.
The federal government is responsible for aboriginal people. Therefore, the class action suit was brought against the attorney general of Canada, although children were removed by provincial authorities.
The ruling orders lead plaintiffs Brown and Robert Commanda to pay $25,000 in costs and stipulates that any new motion for certification of the class action lawsuit must be brought before a different judge other than Superior Court Justice Paul Perell. He granted conditional certification for the class action suit — which Ottawa then appealed.
“The worst part is they ordered (Brown and Commanda) to pay. It’s very sad,” said Cooper, emphasizing the decision was totally at the court’s discretion. “This class action suit was not for the personal benefit of either Brown or Commanda but for everybody.”
Said Brown: “I personally don’t have that kind of money. They are just trying to discourage everybody from challenging the federal government.”
Cooper and Wilson will take their fee from any final judgment.
“We were surprised and very disappointed over (Perell’s exclusion),” said Cooper. “He was just doing what he was supposed to do.”
Perell certified the class action case with the provision the plaintiffs file an amended statement of claim. But the Divisional Court said he “appears to have preapproved the amendments necessary to satisfy him” there were indeed grounds for class action. That was seen as unfair to the federal government.
The Divisonal Court ruling has caused quite a stir and, in the careful language of the law, whipped up controversy.
“With respect, the Divisional Court erred in overturning Perell’s conditional certification order,” Kirk Baert wrote this week in Canadian Lawyer Magazine.
An experienced class action lawyer, Baert said “appropriate case management involves the wide discretion of a motions judge (Perell) to advance the proceedings and to avoid the potentially prohibitive costs and excessive delays associated with certifying a class proceeding.
“In the circumstances, Perell was merely exercising this discretion to modify the proposed class proceeding.”
The setback means that Cooper and Wilson must now win two battles in order to get back to court on their class action suit. They must first win the right to appeal the ruling by the Divisional Court and then, if victorious, win the appeal itself.
If they don’t, Cooper says the setback would put them back three years, almost back to the beginning.
It’s ironic, he says, given that “copycat” class action suits on behalf of “Sixties Scoop” children are in the works in B.C., Alberta and New Brunswick.
Source: Toronto Star
Addendum: As of June 2012 the plaintiffs have been granted the right to appeal the dismissal.
Ontario native class-action suit stays alive
Lawyers acting on behalf of aboriginal children who lost their families and culture during what’s known as the “Sixties Scoop” in Ontario have won the right to keep fighting for their class-action suit.
The multi-million-dollar suit was filed more than three years ago and already appears to mimic the residential schools class-action suit that dragged on in the courts for nine years before aboriginal plaintiffs finally won in 2005.
Marcia Brown, a key plaintiff in this Ontario suit, says she won’t give up. “The law process is slow but we will use this time to get the truth of the Sixties Scoop out to people locally, provincially and internationally,” she said, in a statement to the Star from Kirkland Lake.
An Ojibwa from Beaverhouse First Nation in northeastern Ontario, Brown was among 16,000 children taken by Ontario Children’s Aid agencies and placed in non-aboriginal care. She was removed from her reserve at 4 and sent to a series of foster homes. In one home, she was told to wash off her “dirty brown colour.”
Although the removal of children was called the Sixties Scoop, in Ontario, it actually occurred between 1965 and 1985. The displacement led to adults who say they have lost their own culture.
After the case was filed, Brown, now middle-aged, said that as a child: “I knew that God himself didn’t want me.”
Toronto lawyers Morris Cooper and Jeffery Wilson represent the plaintiffs. They filed their suit against the Attorney General of Canada because the federal government bears constitutional responsibility for First Nations peoples and their culture.
Last October, a year after Superior Court Justice Paul Perell granted conditional certification for their class-action suit, Ottawa appealed it. Perell had certified the suit with the provision the plaintiffs file an amended statement of claim.
But federal lawyers won their appeal and a judgment that called for Brown and fellow plaintiff Robert Commanda to each pay $25,000 in costs. It also stipulated that Perell be excluded as a potential judge in any new motion for a class-action suit.
All Cooper and Wilson have won for now is permission to appeal the Divisional Court ruling in favour of the federal government.
“We were quite shocked at that ruling and we’re pleased we’ve won permission to appeal it,” Cooper said in a telephone interview. “For one thing, to ask Robert and Marcia to pay $25,000 each was shocking. They don’t have any money.”
Shortly after Ottawa overturned Perell’s ruling, Kirk Baert wrote in Canadian Lawyer Magazine: “With respect, the Divisional Court erred in overturning Perell’s conditional certification order . . . . Appropriate case management involves the wide discretion of a motions judge (Perell) to advance the proceedings and to avoid the potentially prohibitive costs and excessive delays associated with certifying a class proceeding.”
Cooper and Wilson have won a battle with permission to appeal the ruling by Divisional Court, but it’s only one step what could be a long road to bring the class-action suit to court.
Cooper doesn’t believe the case will be back in court before the fall.
He notes that other provinces, including B.C., that followed them in filing Sixties Scoop class-action suits against the federal government, are now ahead of them in court proceedings.
Brown is confident she’ll get her day in court. Said Brown: “Although the time this law process takes seems to be lengthened by our government’s lack of accountability . . . the supporters of (the class-action suit) are growing and will continue to grow.”
Source: Toronto Star