Next federal government will face unresolved class action lawsuits from residential school era

Two major unresolved class action cases from the Indian residential school era will face the next government, and may be a test of its commitment to reconciliation, says a lawyer for one group of plaintiffs. 

When the federal election was called, the Liberal government was preparing for a legal battle in Federal Court over a certified class action lawsuit filed on behalf of day scholars — students who attended residential schools during the day but went home at night — and over 100 First Nations seeking reparations for the cultural impact of the institutions. 

The federal government was also in negotiations to settle a separate certified class action lawsuit filed on behalf of Indigenous students who were put into boarding homes to attend public schools.

Ottawa operated the Boarding Home Program for Indian Students from the 1950s to the 1980s, according to the class action's statement of claim. Ottawa also entered into agreements with provinces to cover the cost of tuition, books and supplies for each Indigenous student, the claim said.

"Canada determined that the assimilation of Indigenous children into mainstream society could be accelerated if Indigenous students were removed from Indigenous communities or segregated residential schools and put into provincial schools in urban municipalities," said the claim.

30,000 to 35,000 students placed in boarding homes

Reginald Percival, 64, is one of the lead plaintiffs in the boarding home lawsuit. Percival was taken from his Nisga'a Nation home and community in the 1968-69 school year when he was 13 and placed in a boarding home to attend a school in Surrey, B.C.

Percival said time grows short for many of the about 30,000 to 35,000 former students who were placed into boarding homes in British Columbia, Alberta, Ontario and Quebec. 

"We can't be silent on these issues anymore," said Percival, in a telephone interview with CBC News. 

"I don't know how much longer I am going to be alive."

He said his case is about more than dollars as the scars of the separation from his family and community, the abuse he and other students suffered at the boarding homes and the racism they faced at the schools they were forced to attend cannot be healed by money.

"It's taken a toll on me," he said. "I still get a feeling I don't belong."

David Klein, a partner with Klein Lawyers who is representing Percival on the class action, said the Liberal government indicated a willingness to settle outside a courtroom and he would like to see that commitment continue.

"The current Liberal government has expressed its willingness in this case and in many other cases to resolve these claims through negotiations rather than litigation," said Klein. 

"It would be wonderful to get that kind of commitment from each of the parties."

A separate law firm is representing claimants from Quebec. 

Day scholars headed to trial

The Liberal government reached multi-billion dollar settlements in class actions over the Sixties Scoop and Indian Day Schools. 

However, Ottawa could not reach a settlement on a class action — certified in 2015 — filed on behalf of day scholars, their descendants and 105 First Nations.

The First Nations are seeking compensation for the impact residential schools had on language, culture, heritage and wellness in their communities.

Talks broke down this past February after about two years of negotiations and now the matter is headed to trial.

Lawyer John Phillips, a partner with firm Waddell Phillips, is representing the day scholars. He said the case is a test for the next government's commitment to reconciliation, no matter which party takes power.  

"How seriously do they take reconciliation and the apology given by former prime minister Stephen Harper?" said Phillips. "If it means something, how is it that day scholars remain unsettled?"

Phillips said the parties are currently in the document production phase. He said Ottawa informed them that it has a database of a million documents. 

He said it would cost over $15,000 a month to buy the program to process and store the documents.   

"It's an overwhelming problem to deal with that," he said. "We have self-funding litigants."

Child welfare ruling also faces next government

The next government will also have to determine whether to accept or challenge the recent Canadian Human Rights Tribunal ruling that ordered Ottawa to compensate every First Nation child apprehended from their home and community through the on-reserve child welfare system.

Before the election began, the Trudeau government said it wanted to review the ruling before making a decision. Conservative leader Andrew Scheer said during the campaign he would want to review the decision before making a final determination. 

NDP leader Jagmeet Singh and Green Party leader Elizabeth May have both committed to respecting the compensation ruling by the tribunal.