‘60s scoop’ lawsuit expected to be certified in Alberta first

With class-action lawsuits filed on behalf of children of the ‘60s scoop’ in three provinces, Tony Merchant expects the process to move faster in Alberta.
 “My expectation is (that we’ll get certification and that) we will do that first in Alberta, that’s my plan,” said Merchant.  “The Alberta court system has a lot of experience with class actions…. There’s a comfort level with the familiarity with it by the judges of the court process.”

He doesn’t expect that certification to come for another four or five months.

On Aug. 16, Merchant, of the Regina-based Merchant Law Group, filed a Statement of Claim in the Court of Queen’s Bench in Calgary against the governments of Canada and Alberta on behalf of Peter Christopher Van Name, a member of the Mikisew Cree.

Van Name was one of over 20,000 Aboriginal children (a conservative figure) taken from their families in what has become known as the ‘60s scoop.’ From 1960s to 1980s, First Nations and Métis children were the target of  the Adopt Indian Métis campaign initiated by the federal government and implemented by a number of provincial and territorial governments. These children were fostered or adopted by white families. In many instances, the children were abused, sexually and physically.

The Statement of Claim says action has been taken on behalf of Van Name “and on behalf of a proposed class of similarly situated residents of Alberta and elsewhere in Canada.”

“The benefit of people joining with others is a more collective strength when people are all together than when they are individuals,” said Merchant.

Van Name, who was born in Edmonton to First Nations’ parents, was taken by Alberta Social Services and placed in a home for adoption in New Jersey. He was severely physically abused and never made aware of his Aboriginal culture. He suffered through drug addiction and it wasn’t until he reunited with his parents that he stopped using drugs.

Merchant has also filed lawsuits in Saskatchewan and Manitoba. There are plans to file in British Columbia, Ontario and Quebec.  Merchant expects that if certification comes from an Alberta judge, Saskatchewan and Manitoba courts will likely follow course.

“If it’s not certified in a province, that doesn’t necessarily mean we’re dead in another province,” said Merchant. “If it’s not certified in a province, we’re allowed to change our approach and can go back and try again to be certified in the province we were rejected.”

Meanwhile, Merchant asks others who were taken in the 60s scoop to register on his law firm’s website so they can be kept abreast of the progress as well as any settlement that may come about.

Merchant said the government may choose to “do the right thing” either before or after the case is certified. If not, a trial would proceed and a judge would set the damages.

The papers filed in court state, “The Defendants are vicariously liable for the actions and negligence of any governmental agency, charitable organization or other organization that contracted with either of the Defendants or to whom the Defendants delegated control over the management of the adoption procedures and foster homes, and are also liable in their position as principal to such organizations, who at all times were acting as their servants, employees or agents.”

“The government should say, ‘We were wrong with this program, we apologize,’” said Merchant.  “Then the second thing the government ought to be doing, depending on the circumstances, is paying some compensation to people…. In some incidences, the compensation should be very significant.”

Merchant anticipates a package for AIM children similar to what was struck under the Indian Residential School Settlement Agreement, another class-action law suit led by Merchant’s firm. Through the IRSSA, students who attended a prescribed list of residential schools received a set payment or Common Experience Payment, while those who were abused received a settlement under the Independent Assessment Process. The IRSSA was preceded by an apology from Prime Minister Stephen Harper.

Merchant said it could be two to three years before the case is concluded.

A judge in Ontario certified a similar 60s scoop class action suit last year.