By Mariam Rajabali

From 1920 to 1996, Indigenous children were removed from their families and placed in federally operated Indian Residential Schools. While attending these schools, many children were harmed physically, emotionally and sexually, and all suffered from the ruptures in their families and communities, causing disastrous ripple effects and leading to devastating intergenerational trauma. After years of unsuccessful individual litigation and attempts to achieve a political solution, class actions were filed and then eventually settled. Widely hailed as a class action success story, the settlement was but the beginning of a long road to resolution. To understand the quality of justice achieved, it is vital to hear from class members themselves.

Settlement Agreement 

In 2006, the $1.9 billion Indian Residential School Settlement Agreement (IRSSA) was approved, the largest settlement in Canadian history. The Agreement provided survivors with a minimum of $10,000 Common Experience Payment (CEP), to compensate for the loss of culture, language and education. Class members were also entitled to participate in the Independent Assessment Process (IAP) to claim additional compensation for enumerated types of harm (for example, physical and sexual abuse). The Agreement allocated a further $125 million for healing programs, $60 million for research, documentation and preservations of class member experiences and $20 million for national and community commemorative projects.

While 73% of contested certification motions are successful, there is limited data on the number of settlements that arise from class actions and their respective take-up rates. It is even rarer that data is gathered from settlement administration processes to determine its effectiveness and impact on class members. Given the lengthy process of IRSSA, the National Centre for Truth and Reconciliation (NTCR) conducted a study to understand the impact of the settlement claims process on survivors. The findings are mandatory reading for all lawyers engaged in settlement design, and everyone committed to understanding the access to justice challenges faced by class members, particularly those who have survived historical abuse. 

Survivors’ Perspectives 

Over 300 people shared their experiences and perspectives with the NCTR. Survivors recognized that there were positive outcomes from IRSSA including public recognition of the residential school system and its legacy; some progress toward healing and reconciliation; commemoration initiatives; and compensation. 

The Report makes clear, however, that there were several gaps in the process which led to re-traumatization of many class members. The IAP involved approximately 26,700 hearings. Some survivors’ claims were rejected due to strict or inconsistent interpretations of IRSSA. There was a lack of intergenerational supports and appropriate healing mechanisms (many of the services offered were ineffective as they were virtual or phone-based instead of in-person). Furthermore, some survivors expressed that this settlement did not provide the economic security which survivors needed to participate in the programming offered by the IRSSA, whether that be healing events or a national gathering. 

According to the Report, the “most commonly identified challenge relates to the experiences of victimization or re-traumatization”. One-third of the survivors stated that they felt that they had to relive their residential school experiences in order to participate in IRSSA. For some survivors, the trauma and emotions triggered by the process led to loneliness, panic, depression and self-destructive behaviours, including alcohol abuse and suicide.

Survivors also reported that participating in the IRSSA processes was “akin to residential schools themselves, where the Survivors were taken from their communities, brought to buildings that were like compounds, victimized by re-telling their stories in a culturally unsafe manner, and then returned to their communities without support, in a manner that was not trauma-informed”. The process, including what qualified as “evidence”, did not adhere to Indigenous traditions, but rather reinforced Canadian (colonial) standards. The requirements laid out for the IAP were invasive and required disclosure that many were not ready to give. Even so, it was required to fulfill Canadian evidence law standards, resulting in some survivors experiencing a recurrence of their post-traumatic stress disorder while others were unable to give the necessary statements.

Finally, perhaps the most frustrating aspect for survivors was that the entire process seemed complicated and challenging to navigate. They expressed that communication was irregular and there was a lack of information about how eligibility would be determined. There were deadlines that were not publicized well which resulted in some survivors being rendered ineligible for the IAP and CEP. These challenges were only further exacerbated by some lawyers who were taking advantage of survivors, some of whom asked their clients for large legal fees or to sign blank forms. Some survivors recounted stories of being screened out by lawyers before they even got to a hearing while others said lawyers mismanaged their claims. 

Positive Outcomes

Although there were many challenges throughout the process for survivors, there were some positive outcomes as well.  First, survivors were finally allowed to tell their stories in the ways they wanted and to have their truths recognized; for some, this was important for their healing. Second, there were several supports available before and during the hearings to mitigate the risk of re-traumatization. Third, for those survivors whose claims were accepted, compensation helped improve living conditions or fund community projects. (The report indicates that the average Common Experience Payment was $19,41220 and the Independent Assessment Process led to an average payment of $91,482.62.)

Finally, the apology by the Government of Canada provided a sense of acknowledgement and supported healing within the Indigenous communities.

A settlement in and of itself, especially of this magnitude, can assist in furthering efforts of reconciliation. However, as expressed by the NCTR, as a legal profession we have much more work to do in order for class actions to become a source of healing and justice for communities who are impacted by wrongdoers. It is clear that having cultural competency and the skillset to avoid re-traumatization needs to be at the forefront of legal education in order to better equip lawyers to serve clients with competency and empathy.

To read the full report by the National Centre for Truth and Reconciliation, please click here.  

The Class Action Clinic understands that navigating Class Actions and claims forms can be challenging. If you are a potential member of a class action and need support, please contact the Clinic. 

By Mariam Rajabali

In the flood of litigation during the coronavirus pandemic, there has been an increased number of COVID-19 related class actions. Whether the targets are long-term care homes, retailers, insurance companies or airlines, COVID-19 has gone beyond impacting everyone’s day-to-day life. Now, it has forced consumers to consider their loyalty to their favourite brands and business relations. At the beginning of the pandemic, many businesses were unaware of how to manage their operations while satisfying their customers. Some of the choices made, however, created unhappy consumers and have led to a variety of class action suits.

COVID-19 Flights Refund Class Action

In the early weeks of the pandemic when travel restrictions were imposed, airlines offered future credit to passengers rather than refunds on tickets purchased. Disappointed consumers like Janet Donaldson banded together to launch an airline ticket refund class action. The proposed class action was filed at the Federal Court on March 27, 2020. Amongst the proposed defendants are Air Canada (including Air Canada Rouge), WestJet, Sunwing, Air Transat and Swoop. 

Without notice to its customers, many airlines unilaterally changed their cancellation policies.  Previously, they were issuing refunds for flights that were cancelled by the airline. As customers began reaching out to the airlines, they quickly found airlines changing their terms and issuing future credit instead of cash. For customers who depended on the cash reimbursements due to financial constraints caused by the pandemic, this was particularly devastating. 

Janet is among hundreds of thousands of people around the world who could be affected by the airlines’ decisions not to reimburse passengers for their cancelled flights. In Janet’s case, she lost $361 for a Vancouver-New York round trip, but many passengers lost much more. Katie Gillis and her wedding party, for example, collectively lost $57,000 through Sunwing.

The proposed class action is on behalf of “persons residing anywhere in the world” who, before March 11, 2020, purchased flight tickets with any of the listed defendants for a flight between March 13, 2020 and the date the federal government lifts all travel advisories for COVID-19. 

A Worldwide Movement 

While the proposed class action already involves hundreds of thousands of people around the world, several other firms have begun filing similar actions. Just within Canada, another class action was launched specifically targeting Air Transat in Quebec, for the same reason. Over 32,000 Canadian citizens have called “upon the Government of Canada to require airlines and other carriers under federal jurisdiction to allow customers whose trips have been cancelled due to the current pandemic to obtain a refund”. Another 72,000 people signed the same petition through www.change.org.

Around the world, class actions have been filed against several airlines including American Airlines, United Airlines and Delta Airlines via Hagens Berman Sobol Shapiro LLP, Southwest Airlines via Tycko & Zavareei LLP and British Airways via SPG Law. Toronto firm Koskie Minsky is commencing a class proceeding against international airlines regarding the same cancellation policies. The airlines include Aeromexico, Air France, Alitalia, British Airways, Cathay Pacific, Delta, Etihad Airways, El Al, Emirates, Lufthansa, Nippon Airways, Southwest Airlines, TAP Portugal, United Airlines, Qantas, Aer Lingus and Ryanair.

In response, the United States Department of Transportation set out regulations that requires airlines to refund passengers for cancelled flights. The European Union followed suit and have similarly instructed airlines. The Canadian government, however, has taken a very different approach. 

CTA’s Statement on Vouchers

Two days before the class action on refunds was filed with the Federal Court, the Canadian Transportation Agency (CTA) announced that vouchers could be an acceptable form of compensation instead of cash refunds, provided that they do not expire after an “unreasonably short period of time”. Many airlines justified their lack of refunds based on the CTA’s “Statement on Vouchers”. The CTA even went as far as to specify that “24 months would be considered reasonable in most cases”.

Nevertheless, given the airlines’ use of the statement as justification to deny passengers their refunds, a consumer advocacy group, Air Passenger Rights, attempted to obtain a mandatory interlocutory injunction of the CTA’s statement on refunds. More importantly, that statement gives the public a false understanding of their rights to be reimbursed and the misinformation further adds barriers to justice for consumers. Even so, the Federal Court of Appeal dismissed the request for the injunction in May 2020. 

The CTA has since clarified that their statement is not legally binding. As part of this clarification, they explicitly mentioned that while the suggestion of vouchers can be appropriate given the circumstances, it does not “affect airlines’ obligations or passengers’ rights”. They also noted that “passengers can still file a complaint with the CTA”, a statement that was missing from the initial Statement on Vouchers. 

Consumers will have to await the outcome of the certification hearing in the Federal Court action, scheduled to take place on November 2, 2020, at 9:30AM PST via Zoom video conference. In the meantime, we encourage potential class members to reach out to EvoLink Law if they would like to receive updates about the proposed class action or contact the Class Action Clinic if they need assistance in navigating the process.