Mohawk Residential School Class Action

APPLICATION FORMS FOR COMMON EXPERIENCE PAYMENT

If you are a former student who attended an Indian Residential School, you must complete a CEP Application Form and submit it with the required documents. Please download and complete the form called "Application for Common Experience Payment for Former Students Who Resided at Indian Residential School(s)" from Service Canada's Common Experience Payment website.

If you are the personal representative of the estate of a deceased student who attended an Indian Residential School, there is a different application form for the CEP payment. Please download and complete the form called "Common Experience Payment Application for Personal Representative or Estate".

Finally, for those former students alive or deceased whose names changed after they attended the Residential School, for example, a woman who married and took her husband’s name, you must submit an additional form with your CEP application called the "Guarantor Declaration for Common Experience Payment Application (CEP)".

If you previously filled out an application for the Elders Advance Payment, you must still complete these application forms to get the balance of the money that you are entitled to for the Common Experience Payment.

Please note that these applications are for the Common Experience Payment only.

If you were sexually abused or severely physically abused, there is a separate process and a separate application that must be completed. We would be pleased to meet with you and to assist you in making your claim for additional compensation under the Individual Assessment Process (IAP). Please contact our office to make arrangements for us to get together with you.

If you have any difficulty completing the form or have any questions, please contact our office at 519-672-9330 and ask for Leigh-Ann Eastwood or Michelle Ridgway.

Update with respect to the Residential School Class Action Lawsuit

The opt out period expired on August 20, 2007. The Government will be providing the final tally of opt outs by former students on Monday, August 27, 2007. Provided there are less than 5,000 former students who opt out nationally the settlement of the class action becomes final and binding.

At this time the Government is not accepting applications for the Common Experience Payment. They will begin accepting applications as of September 19, 2007. The forms have not yet been released by the Government, but when they do become available our office will be mailing them directly to the survivors.

MOHAWK SETTLEMENT APPROVED BY COURT

The Indian residential schools settlement has been approved by all nine Courts. Now, former students and their families must decide whether to stay in the settlement or remove themselves (opt out). Click the links below to read the Court-ordered notices.

IND-DET2-ENG.pdf | IND-PUB2-ENG.pdf

On December 15, 2006, Justice Warren Winkler of the Ontario Superior Court released his Decision approving the settlement of the Mohawk Institute Residential School class action. His approval is conditional upon some administrative concerns being addressed within the next 60 days. Efforts are already underway to meet those concerns.

In his Reasons, Justice Winkler wrote:

“In my view, the proposed compensation components of the settlement are fair and reasonable, if they are delivered in an expeditious manner consistent with the intention expressed in the settlement. However, I have concerns that there are aspects of the planned administration and implementation of the settlement that may have a deleterious impact on the benefit of the settlement to the class members. I am approving the settlement, subject to those concerns being satisfactorily addressed…”

In his Reasons, Justice Winkler makes clear that the role of the court in the approval process is more than a mere formality or “rubber stamping”. The court has an obligation under the Class Proceedings Act to protect the interests of the absent class members, both in determining whether the settlement meets the test for approval and in ensuring that the administration and implementation of the settlement are done in a manner that delivers the promised benefits to the class members. Justice Winkler identified four areas of concern. These areas are:

1. Justice Winkler felt that the information provided to the court at the approval hearing was not adequate as it relates to the anticipated costs of administering the IAP. He requires that more detailed financial information be provided to the court as to the expected costs of administration for the Individual Assessment Process, and that there be a mechanism for periodic reporting to the court of those costs.

2. Justice Winkler also indicated that it was essential that there be independent oversight of the administration of the IAP. He requires that an independent supervisor or supervisory board be created which would report to the court. He is concerned that notwithstanding the best intensions of all parties, leaving it to the defendant, Canada, to administer the IAP process may not be in the best interests of class members.

3. Justice Winkler requires that the adjudicators in the IAP be empowered to regulate the amount which lawyers may bill claimants for their services for the IAP. Presently, the agreement is silent. Undertakings were given to the court to limit the amount that lawyers would charge in addition to the 15% that Canada would add to any damages. Justice Winkler wants the adjudicators to have the ability to determine whether the amounts payable to lawyers for their services for the IAP are fair and reasonable and, to the extent they are not, to reduce those fees.

4. Finally, Justice Winkler requires a protocol for determining how issues relating to the ongoing administration of the settlement will be submitted to the courts for determination. This is to ensure that the requirement for unanimous approval of all courts of any material amendment not unduly hinder or delay the ability of the courts to make timely decisions.

In his conclusion, Justice Winkler wrote:

“… The changes that the court requires to the settlement are neither material nor substantial in the context of its scope and complexity. It would serve the interests of the proposed class to have these issues dealt with in an expeditious manner and to that end, I am prepared to grant the parties a reasonable period, not to exceed 60 days from the date of these Reasons, to complete the required changes.”

The concerns expressed by Justice Winkler have been echoed by Judges in most of the other provinces who released their Decisions on December 15, 2006. In Manitoba, the court indicated that it would unconditionally certify and approve the class action before it.  In British Columbia, Chief Justice Brenner added an additional concern: that plaintiffs’ counsel provide an undertaking to the court that students will not be charged any additional amount for Common Experience Payment applications.

Decisions have now been rendered in all 9 jurisdictions save for the Northwest Territories and Nunavut.  The Decisions from those courts are expected in early 2007.

The approval of the settlement in Mohawk is conditional upon the approval of the other class actions that form part of the national settlement. Therefore, it is necessary that the concerns expressed by the courts be addressed and resolved to the satisfaction of the presiding Judges. Work is already underway to address those concerns for the benefit of Survivors and their families.

To see the full text of the Decision of Justice Winkler in Ontario and of the other courts, please click on the links to the following Approval Decisions.

• Alberta Reasons (McMahon J.)
• British Columbia Reasons (Brenner CJ)
• Manitoba Reasons (Schulman J.)
• Nunavut Reasons (Kilpatrick R.)
• Ontario Reasons (Winkler RSJ)
• Quebec Reasons (Tingley J.)
• Saskatchewan Reasons (Ball J.)
• Yukon Reasons (Veale J.)

So where are we? The court has approved the settlement as being fair and reasonable subject to addressing the issues that are set out above. To resolve those issues, we will require cooperation from lawyers and the government. There is good reason to believe that that cooperation will be given and these issues will be resolved very shortly. For our part at Cohen Highley LLP, we will be striving to see this matter finalized.

CABINET APPROVES FINAL SETTLEMENT AGREEMENT

On May 10, 2006, the Cabinet approved the final settlement agreement for the settlement of the Mohawk Institute Residential School lawsuit as well as lawsuits for former residential school survivors across Canada. This is a significant step forward in completing the settlement of this litigation.

Another milestone has been reached and we are much closer to final resolution.  After more than 7 years of very tough litigation with the Government, the Diocese of Huron and the New England Company, the settlement follows the decision of the Ontario Court of Appeal dated December 3, 2004 in which the Court unanimously certified this action as a class action. Leave to Appeal to the Supreme Court of Canada from that decision was denied in mid-May, 2005.  Immediately after denial of leave, the Government of Canada appointed the Honourable Frank Iacobucci, a former Justice of the Supreme Court of Canada, to act as its negotiator to negotiate a pan-Canadian settlement of the residential school legacy, including settlement of the Mohawk Institute Residential School class action.

On November 20, 2005 an Agreement in Principal was entered into between lawyers representing former students, the Federal Government, various Church entities and the AFN to settle residential school litigation as part of a Pan-Canadian settlement. That settlement included resolution of the class action lawsuit started by this firm on behalf of the former students and their families of the Mohawk Residential School. Since then, the parties have been engaged in preparing the final settlement agreement and the schedules to that agreement. That final settlement agreement will shortly be available and accessible through our webpage. This is a very comprehensive document and considerable effort was spent by all parties to finalize it.

Before proceeding to court for court approval, Cabinet approval of the final Settlement Agreement was necessary. That approval has now been given.

The next step in completing this settlement is to seek court approval of the settlement. A date for that hearing has not yet been set, but newspaper notices will be going out shortly to advise anyone affected of the approval hearing date. The hearing will take place in Toronto.  In addition to the approval hearing in this action, approvals must be obtained from courts in 9 provinces and territories. All of these approvals depend on each other; that is, all 9 provinces’ courts must approve the settlement.

• To View the Executive Summary of the Agreement (pdf), click here.
• To View the Agreement in principle (pdf), click here.
• To View the Order for Settlement Approval Hearing (pdf), click here.

ADVANCE PAYMENT

As part of the settlement of the Mohawk Institute Residential School and other residential school litigation, the Government has agreed to make an advance payment of $8000 to former residential school students still alive and who turned 65 on or before May 30, 2005.

Eligible former students may apply for this payment by completing and submitting the Advance Payment Application Form which has been mailed to them.  If you do not receive this form in the mail, you can obtain it from the Indian Residential Schools Resolution Canada website or by calling (800) 816-7293.

If you have any questions regarding the application form or need assistance to complete it, please contact us at your earliest opportunity.