First Nations Youth Class Action
Sotos Class Actions is prosecuting this case in collaboration with Kugler Kandestin LLP in Montreal and Miller Titerle + Co in Vancouver.
This case seeks compensation for systematic discrimination against certain First Nations children by the federal government of Canada since 1991.
The discrimination has taken two forms.
First, the government has denied proper funding to child welfare agencies responsible for the protection and well-being of First Nations children. This denial of proper funding has directly contributed to the epidemic numbers of First Nations children on reserves being removed from their homes and communities and placed in state care – a phenomenon referred to as the “Millennium Scoop.”
Second, the federal government has failed to honour Jordan’s Principle. Jordan’s Principle is a legal requirement on the federal government to provide First Nations children with necessary services and products regardless of which level of government must eventually pay for those products or services. Jordan’s Principle is designed to ensure that funding disputes between levels of government (federal, provincial or territorial) do not result in the delay or denial of necessary services or products to First Nations children. In breach of Jordan’s Principle, the government has delayed or denied services and products to tens of thousands of First Nations children living both on and off-reserve.
The Canadian Human Rights Tribunal, in a landmark decision in 2016, found that the federal government had discriminated against First Nations children both because of underfunding of child welfare agencies and because it has failed to honour Jordan’s Principle. This case seeks compensation for each First Nations person affected by either form of discrimination since 1991.
The court will decide at a later date if the case will proceed as a class action.
The case seeks to represent:
all First Nations persons who:
- were under the applicable provincial/territorial age of majority at any time from April 1, 1991 to February 20, 2019; and
- were taken into out-of-home care during the period from April 1, 1991 to February 20, 2019 while they or their parent(s) were ordinarily resident on a Reserve.
and all First Nations persons who were under the applicable provincial/territorial age of majority from April 1, 1991 to February 20, 2019 and who experienced delays or denials of a public service or product contrary to Jordan’s Principle.
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First Nations Youth: Updates
- December 10, 2020: The plaintiffs have started mediation with Canada and the First Nations Child and Family Caring Society with the assistance of a First Nation retired judge as mediator. The mediation is expected to continue into 2021.
- November 17, 2020: The plaintiffs filed with the Court their motions for: (a) consent certification (of the Removed Child Class from 1991 until the present and Jordan’s Principle Class from 2007 until the present); (b) for the Court’s permission to start the class action brought by the Assembly of First Nations; (c) for the Court’s permission for the consolidation of the class actions by the Moushoom group and the Assembly of First Nations group; and (d) for the Court’s permission to start a proposed class action for Jordan’s Class of 1991-2007 and their families.
- July 27, 2020: The Plaintiffs served their Fourth Supplementary Motion Record in response to documents filed by Canada.
- March 11, 2020: The Plaintiffs served their Third Supplementary Motion Record in response to documents filed by Canada.
- February 28, 2020: The Plaintiffs served additional documents on Canada in support of the motion for certification.
- January 29, 2020: The Federal Court ordered a four day hearing of the proposed certification motion on September 14, 2020, in Montreal. Click here to read the Order of Madam Justice St-Louis.
- May 28, 2019: The Honourable Justice St.-Louis granted the plaintiff’s motion to amend the Statement of Claim, add a second plaintiff, and appoint a litigation guardian for him. You can find a copy of the Court’s Order here and the Amended Statement of Claim here.
- March 4, 2019: Statement of Claim was issued.
First Nations Youth: Documents
- Fourth Supplementary Motion Record (Motion for Certification) (Dated July 27, 2020)
- Third Supplementary Motion Record (Motion for Certification) (Dated March 11, 2020)
- Second Supplementary Motion Record (Motion for Certification) (Dated February 28, 2020)
- Affidavit of Marie Doyle
- Affidavit of Jean-Pierre Morin
- Order of Justice St. Louis (dated January 29, 2020)
- Motion Record (Motion for Certification) (dated July 11, 2019)
- Order of Justice St. Louis (dated May 28, 2019)
- Amended Statement of Claim
- Statement of Claim (issued March 4, 2019)
First Nations Youth: News
- First Nations Class Action – Response Statement (4 December, 2019). Retrieved from: https://sotosclassactions.com/first-nations-class-response-statement/
- Class Action against the Government of Canada brought on behalf of First Nations Youth. (8 March, 2019). Retrieved from: https://www.newswire.ca/news-releases/class-action-against-the-government-of-canada-brought-on-behalf-of-first-nations-youth-816218905.html
- $3B class action lawsuit filed against Ottawa over First Nations child welfare discrimination. (5 March, 2019). Retrieved from: http://www.cbc.ca/news/canada/calgary/story/2011/10/04/calgary.html
Frequently Asked Questions
A class action is a special form of lawsuit in which one plaintiff brings a claim against one or more defendants based on allegations which are common to a group, or class, of people. In order for the action to become a class action, it must proceed through a stage known as “certification”.
A statement of claim is issued on behalf of a “representative plaintiff”. The representative plaintiff’s role is to work with class counsel to bring the action forward and to represent the class members in court.
In order for an action to proceed on behalf of the entire class, a judge must decide (among other things) whether the members of the proposed class have common issues, and whether a class action is the preferred way to resolve the issues. The process to decide these issues is known as the “certification motion”. If the judge is satisfied that the case meets all of the requirements for certification, he or she will issue an order which certifies the action as a class action.
No. If the lawsuit is certified, and you are included in the class as defined, you are automatically included in the lawsuit.
No. We will work primarily with the class representative.
Those who do not wish to remain in the class will be given the option to opt-out by sending an opt-out form at the appropriate time to us.
Certification as a class action will enable us to prove the facts in a single lawsuit rather than in numerous individual lawsuits. This has obvious benefits to the class members and to the courts.
There is no timeframe. We will move the case forward diligently but it can take a considerable period of time to reach trial.
Many class actions settle and thereby remove the need for a trial. However, we cannot predict with any certainty whether or not there will be a settlement in a given action.
The chances of “winning” can never be accurately predicted.
Class action lawsuits are typically brought on a contingency fee basis. This means that the lawyers will only be paid if the action is successful at trial or results in a settlement in favour of the plaintiffs. Legal fees would then be paid out of the settlement or judgment proceeds as approved by a judge.
Disbursements (i.e. out-of-pocket expenses, including expert reports) may be dealt with in one of two ways.
Most commonly, the lawyers will absorb the cost of disbursements. The lawyers may seek funding assistance from the Class Proceeding Fund, which may provide funding for disbursements if granted.
In some cases, disbursements may be funded by the class members, including the class representative. This typically occurs in smaller class actions brought on behalf of an organization or network of individuals where each member of the class is easily identifiable and known to the representative plaintiff. If the class action is successful, amounts advanced for disbursements are re-paid from the proceeds of any judgment or settlement to class members (and others).
Only the class representative may be liable for costs of the common issues portion of the action if it is unsuccessful.
A “payout” or an award for damages is never certain.
The action may settle or it may proceed to trial, at which time a judge will determine the amount of damages, if any, to which the class members are entitled to. Regardless, the amount of “payout” cannot be predicted, and we cannot predict when the action may settle or when the trial will conclude.
If the lawsuit is certified as a class action, you will receive a formal notice from the court explaining the nature of the case and providing you with the opportunity to opt out if you wish. General information about the lawsuit will be posted on Sotos LLP’s website at https://www.sotosclassactions.com.
We ask that you keep a copy of any documents, correspondences, records, invoices, receipts, etc. that you feel might be relevant to your individual claim in the class action. If there is a “payout,” this documentation may be required in order to support your claim for compensation.
It is not required that you send any documents to us at this time.