By Shakiba Sadeghi, 3L
Remedies in most civil and criminal legal proceedings focus on limited outcomes such as compensation, restitution, or punishing the wrongdoer. While these remedies are important, they are rarely sufficient in cases involving systemic wrongdoing, historical injustice, or collective trauma. In response, there has been growing interest in approaches that reframe remedies to focus on relationships, healing, and other psychological and emotional outcomes.
This blog introduces therapeutic justice in the class action context and argues that class action settlements provide a meaningful opportunity to incorporate therapeutic justice principles that emerged largely from criminal and mental health proceedings, where courts began to assess how legal processes affect psychological well-being, dignity, and healing.
The court approved settlement process in class actions allows for flexibility so long as the outcomes are fair, reasonable, and in the best interests of the class. This flexibility allows parties to pursue therapeutic goals that are beyond compensation, including acknowledgment, truth-telling, and healing-oriented mechanisms.
Despite its promising benefits, therapeutic justice outcomes are only practical when parties are willing to engage with them. With greater attention to trauma-informed and therapeutic approaches in class actions, there is a greater potential to address substantive, procedural, and emotional access to justice for class members.[1]
What is Therapeutic Justice?
Therapeutic jurisprudence, or therapeutic justice, was first articulated by American law professors David Wexler and Bruce Winick in the late 1980s and early 1990s. One of the earliest definitions of therapeutic jurisprudence was “the extent to which substantive rules, legal procedures, and the roles of lawyers and judges produce therapeutic jurisprudence or antitherapeutic consequences.”[2]
While it originated in mental health, disability, and criminal law, therapeutic justice has grown to include many areas of law and approaches to lawyering. At its core, therapeutic justice seeks a more holistic and problem-solving approach that aims to enhance the law’s therapeutic effects while reducing its harmful impacts, without limiting fundamental legal values.[3] Using this lens, justice system actors ought to recognize that justice inherently has psychological outcomes, beneficial or otherwise, and that a holistic understanding of justice includes attention to these aspects.
The following table assists in visualizing traditional approaches, and how it can be altered to create a therapeutic approach[4]:
| Traditional Approach | Therapeutic Justice Approach |
| Resolution of dispute | Resolution of underlying problem |
| Focus on legal outcome | Focus on therapeutic outcome |
| Adversarial process; Impersonal | Collaborative process; Personal |
| Claim or case-oriented | People oriented |
| Backward-looking | Forward-looking |
| Few participants and stakeholders; Limited Communication | Many participants and stakeholders; Open Communication |
| Individualistic | Interdependent |
| Efficient | Effective |
| Success measured by compliance | Success measured by remediation of underlying problem |
Class Action Settlements
Class actions are designed to aggregate claims and emphasize commonality over individual experiences. This can be difficult to implement with the individualized approach of therapeutic justice. However, the settlement phase introduces some flexibility that is not possible through judgment after a trial.
Under Canadian class action regimes, settlements must be approved as fair, reasonable and in the best interests of the class. Beyond this requirement, settlements may include a wide range of non-monetary components. Many settlement agreements explicitly acknowledge that the resolution is intended to be more than compensation alone. Preambles in settlements addressing harms to Indigenous peoples, including the Indigenous Residential Schools Settlement Agreement (IRSSA), often reference healing, reconciliation, or restorative objectives. While Indigenous justice practices are particular to the context, there is overlap in some overarching themes. Language referencing restoration and healing signals that therapeutic justice goals are not speculative or far-fetched; parties themselves frequently articulate aspirations aligned with therapeutic justice, even if they are not always recognized in practice.
The IRSSA Case Study
One of the primary advantages of therapeutic justice is its ability to allow people impacted by harm to have their perspectives shared during justice processes. For many survivors of trauma, having their voices heard can restore a sense of control, often for the first time since the harm occurred.
The IRSSA, finalized in 2006, illustrates both the potential and the limits of incorporating therapeutic justice principles into a class action settlement. The IRSSA addressed the harms suffered by Indigenous children forcibly placed in residential schools operated by the Canadian government and religious organizations.
The settlement included traditional compensatory mechanisms, such as the Common Experience Payment and the Independent Assessment Process, which provided individualized financial compensation for abuse. In addition, the IRSSA incorporated non-monetary components aligned with therapeutic justice goals, including a formal apology from the Prime Minister on behalf of the Canadian government, the establishment of the Truth and Reconciliation Commission (TRC), and the creation of the National Centre for Truth and Reconciliation to preserve survivor testimony and historical records.
The TRC, which released its final report in 2015 after six years of national engagement, provided a forum for more than 6,500 survivors and families to share their stories. The final report is a testament to all the survivors and families having the courage to share their voices and stories. This process moved beyond compensation and punishment by confronting the historical truths, giving the survivors’ voices national recognition, and to directly engage on the issues they faced as a result of their experiences in residential schools.
While these initiatives are laudable, it is important to approach claims about therapeutic outcomes with caution. There is no single measure of what is “therapeutic”, nor is it appropriate to assume that any process will be healing for all survivors. We know that some state-imposed interventions framed as “therapeutic” have historically caused significant harm to Indigenous peoples, including through residential schools. As reflected in the “Lessons Learned Report”, survivor experiences varied. For example, rather than minimizing harm, survivors were subjected to re-traumatization caused by the process itself and due to a lack of trauma-informed perspective. Additionally, participants claimed that a Western, adversarial approach took over the IRSSA process and left them at a disadvantage without cultural safety, undermining the therapeutic goals of the settlement. This illustrates an important limitation of therapeutic justice in the class action context; that while therapeutic goals are aspirational, results are not always guaranteed.
Conclusion
Therapeutic justice challenges the legal system to move beyond transactional remedies and consider how law affects dignity and well-being. Class action settlements provide an opportunity to pursue these goals by allowing parties to design remedies that combine compensation with acknowledgment, truth-telling, and support mechanisms. However, therapeutic outcomes depend on accountability, trust, and the willingness of the parties to consider therapeutic remedies in addition to financial ones. Without acknowledgment or apologies from institutions, proper wellness supports, or opportunities for truth telling by survivors, class actions may only deliver financial outcomes without providing true therapeutic healing to class members.
[1] Roderick A Macdonald, “Access to Justice in Canada Today: Scope, Scale, Ambitions” in Julia Bass, William A Bogart & Frederick H Zemans, eds, Access to Justice for a New Century: The Way Forward (Toronto: Law Society of Upper Canada, 2005) 19.
[2] David B Wexler & Bruce J Winick, “Therapeutic Jurisprudence as a New Approach to Mental Health Law Policy Analysis and Research” (1991) 45:5 University of Miami Law Review 979 at 981.
[3] David Wexler & Bruce Winick, Law in a Therapeutic Key: Developments in Therapeutic Jurisprudence (Durham, North Carolina: Carolina Academic Press, 1996) at 338.
[4] Jelena Popovic, “Judicial Officers: Complementing Conventional Law and Changing the Culture of the Judiciary” (2003) 20:2 L in Context 121 at 129.