By Joudy Sarraj
The Six Nations Grand River Council recently filed a motion asking the Federal Court to extend the claims deadline in the Federal Indian Day Schools and Federal Day Schools (“IDS”) settlement to December 31, 2025. The settlement agreement was reached in a class action concerning the systemic abuse suffered by generations of Indigenous children at day schools.
The motion record documents a myriad of issues: a short claims period; pandemic related disruptions; lack of transparency on the take-up rate; and insufficient assistance for survivors navigating the claims process — especially those required to demonstrate severity of harm to prove higher-level claims.
Problems with the design of the IDS claims process are well known. Previous blog posts discuss the claims administrator’s refusal to accommodate for progressive disclosure so that class members could change their applications to higher-level claims as they came to terms with traumatic experiences and felt more comfortable divulging details. Other class members could not get legal assistance to complete their claims or accurate information about the claims process.
The recent motion record shows that settlement notice is a key part of settlement design. Lack of effective notice in the IDS case created a real barrier between survivors and just access to their entitlements.
“The shortcomings of IDS settlement notice”
According to the Six Nations Council, the notice campaigns for the IDS settlement failed to include sufficient direct outreach, performance measurements, and culturally sensitive communications. Class counsel visited very few First Nations communities in person, and a pivot to online webinars and electronic communications during the pandemic was ill-suited to community needs. For example, class counsel allegedly made no effort to advise incarcerated IDS survivors about the claims process despite the over-representation of Indigenous populations amongst the incarcerated. Moreover, according to a 2017 study, only 24% of households in Indigenous communities have reliable access to high-speed internet.
Class counsel’s absence from the community effectively left the Six Nations Council with the responsibility of providing notice about the settlement, despite having no training or expertise in class actions. The Council conducted ad-hoc community outreach and would locate precariously housed survivors to deliver copies of the notice and claims form. The Council took the initiative to make arrangements to allow those without a permanent mailing address to use the Council office to receive communications from the claims administrator. The Council expected that the parties responsible for the implementation of the settlement agreement would provide effective notice, but class counsel and the claims administrator fell short.
What is the legal standard for appropriate settlement notice?
The Class Proceedings Act (CPA) provides some guidance on the means parties can use to give notice in section 17(4): personally, by mail, advertising, leafleting, individual notice, electronic means, and “any other means the court considers appropriate.”
Section 17(5) of the CPA describes the required contents of notice, including a description of the proceeding, potential financial consequences like the amount available to be claimed, a description of the rights of class members, a note about legal fees and disbursements, contact information for inquiries about the proceeding, and “any other information the court considers appropriate.”
In practice, these guidelines offer little objective guidance on how to draft and distribute good notice. The shape and form of effective notice vary significantly based on context. What is fair, reasonable, and in the best interest of the class will diverge in each class proceeding. Despite the necessity of such a situational analysis, however, it is possible to identify general principles of effective notice and to learn from past experience.
The Quebec Code of Civil Procedure for example, links the time, form and manner of publication requirements — as explained in the CPA — to the broader objective that notice reach class members “having regard to the nature of the class action, the composition of the class and the geographical location of its members.” While “reach” will look different in each case, a genuine effort to reach is essential. In other words, the way notice is designed, must make it likely that the information will reach the intended recipients.
Moreover, statistics and anecdotal evidence about previous notice plans can help inform future ones. In particular, counsel in IDS would have known that community outreach and clear, understandable information in IRSSA were integral to the effectiveness of that settlement.
The motion record demonstrates that the IDS notices and communication plan failed to reach many affected class members.
Reaching the hardest to reach
Interestingly, the Notice Plan in the IDS Settlement includes a “situational analysis” which acknowledges the following:
- Former students are located throughout Canada on reserve, within Indigenous communities/settlements including northern communities, as well as within the general population. Those residing outside of an Indigenous community are located in both rural and urban areas.
- The education level of the Class varies widely.
- A small percentage of the Class is in correctional institutions or resides outside of Canada.
- Languages appropriate for communicating with those affected include English, French, and five Indigenous languages.
Unfortunately, there is a gulf between the Notice Plan and its implementation. The Notice Plan identifies the very cultural and situational variables which actual notice failed to address. Recall, for instance, the lack of outreach to incarcerated class members, and the lack of access to web-based information.
Since notice is approved by the court as part of settlement approval, parties are judged with respect to their ability to identify such situational variables, but not necessarily on their ability to deliver effective notice. How can parties move beyond identifying and acknowledging the situational context of the class, to designing and delivering notice that is effective in this specific context? What remedies are available to class members once the Notice Plan has been approved, if the Notice Plan is deficient in its scope or implementation? These are questions for both the Federal Court to answer and the legal community to consider.
In its motion record, the Six Nations Council has stressed that an extension of the claims deadline alone, without appropriate notice and trauma-informed support, will not be a meaningful response to the barriers that necessitated an extension in the first place. A settlement that does not actually distribute benefits to a substantial number of class members cannot be fair. Effective notice is essential to transforming theoretical entitlements to real claims.
