By Nina Zibar, 2L
On January 5, 2024, the Federal Court of Appeal upheld a supervising judge’s interpretation that claimants under the Indian Day Schools Settlement Agreement (IDSSA) may not change the level of compensation they initially claimed even if no decision has been made regarding their application. The decision not only exposes the challenges trauma survivors face in settlement claims processes, but also prompts questions about whether courts are effectively meeting all three objectives of class actions or inadvertently prioritizing some over others.
History of Ms. Waldron’s Application
A previous blog written by former clinic student caseworker Katie Pfaff and Professor Jasminka Kalajdzic, outlines the events of the original case which led to Ms. Waldron’s dismissed appeal discussed here.
IDSSA provided an individual compensation scheme based on levels of harm. Compensation ranged from $10,000 for a “Level 1” claim to $50,000, $100,00, $150,000 and $200,000 respectively for claims at Levels 2, 3, 4, and 5.
Jessie Waldron, a survivor class member, originally filed her claim as a Level 1 claimant without the assistance of a lawyer. She struggled to get help filling out her forms and even drove 830 km to meet her class counsel for a meeting which was canceled on short notice. She made repeated unsuccessful attempts to reach someone at the phone number listed on the claims form. She then filed a claim at Level 1 harm because she “was so fed up and just wanted to get it over with,” and did so “out of confusion and frustration.”
Ms. Waldron subsequently hired a lawyer who, after interviewing her and establishing a relationship of trust with her, filed another claim on her behalf, outlining abuses that entitled her to Level 4 compensation. The Claims Administrator, however, would not accept the new claim Level selection and told Ms. Waldron that “while claimants are invited to send information to complete their claim, they are not entitled to change their Level selection.” Ms. Waldron’s claim was accepted at Level 1 several weeks later.
Ms. Waldron went to court seeking a declaration on behalf of the Class to permit the filing of further documentation of abuse to modify their claim level selections. Class Counsel, the Defendant and the Administrator all argued that nothing in the Agreement allowed for a change in level selection, and that the court could not alter the terms of the Agreement.
Ms. Waldron argued that nothing in the agreement prevents Claimants from modifying the level of harm. Thus, in accordance with a plain reading, “the Claims Administrator had an obligation to adopt an interpretation of the IDSSA that would allow Claimants to change the level of self-harm self-identified and to file additional information ….”
Justice Phelan ultimately denied Ms. Waldron’s motion, a decision she appealed to the Federal Court of Appeal.
The Federal Court of Appeal’s Decision
Ms. Waldron’s main argument on appeal was that Justice Phelan erred in finding that nothing in the agreement supported progressive disclosure or the right to file changed claims. She also argued that the provisions in the IDSSA for filing a claim did not preclude the availability of “basic procedural rights” such as the right to amend.
Ms. Waldron submitted that Justice Phelan confused progressive disclosure with a problem associated with the Indian Residential Schools Settlement Agreement (IRSSA), namely the requirement to testify about traumatic events during the independent assessment process (IAP). While it was true that IDSSA was designed to replace this aspect of IRSSA with a paper-based application, it did not follow that changes to levels of compensation were not contemplated.
The Federal Court of Appeal rejected Ms. Waldron’s arguments. First, the Court noted that while there may be an implicit right to amend in some litigation or administrative proceedings, the claims process in the IDSSA is prescribed by contract and the rules governing litigation therefore do not apply. Thus, the Court of Appeal adopted a purely contractual lens in its analysis. Second, the Court of Appeal affirmed Justice Phelan’s interpretation of progressive disclosure as equivalent to the modification of claims levels, neither of which were explicitly permitted under the terms of IDSSA. The Court did so despite section 9.03 of the Agreement, which states the intent of the parties was to “minimize the burden on Claimants in pursuing their claims and to mitigate the likelihood of re-traumatization through the Claims Process.” Left unresolved was the re-traumatizing impact of a claims administrator who would not read, let alone approve, a higher claim level. Finally, the Court found that recognizing an implicit right to amend a claim form would amount to a modification of the terms of the settlement agreement, and therefore would run counter to the “entire agreement” and the “no amendment without consent of the parties” clauses of the IDSSA.
Implications
This decision has access to justice implications for both Indian Day School survivors and all class members generally. While the Court recognized that the Claims Administrator in IDSSA faced issues processing claims due to the COVID–19 pandemic and accepted that flexibility in its procedures was therefore needed, it did not give the same latitude to class members. The difficulties Day School survivors faced in securing legal help or working through their traumatic pasts during the pandemic did not inform either court’s approach to the Agreement.
The judgments also provide little scope for relief in any case where class members encounter issues navigating the claims process and Class Counsel does not advocate on their behalf to the claims administrator. Furthermore, in light of the Court’s approach to progressive disclosure and the right to amend a claim form, one must ask how a settlement agreement could be drafted to better protect class members, especially those who are survivors of trauma.
The decision also highlights broader concerns regarding class action settlement agreements and their interpretation by courts. Did the judges in McLean and Waldron rely too much on contract law in their interpretation of the Agreement, and not enough on basic rules of procedural fairness and the goals of class actions? While one goal of class actions is to promote judicial efficiency, should the other two goals of class actions – behaviour modification and access to justice – be sacrificed because a claims administrator refused to be inconvenienced and the courts agreed with them? Is it in keeping with the goals of class actions and the purported commitment to a trauma-informed process to re-traumatize class members and deny them compensation, for the sake of efficiency? Courts must find a balance between all three goals of class actions that does not favour efficiency at the expense of deterrence and true access to justice for trauma survivors. The decisions in McLean and Waldron do not strike that balance.
