Ottawa heading to trial in class action lawsuit by residential school day scholars

Ottawa is heading to trial next month over a class action lawsuit involving students who attended residential schools during the day in which its lawyers have argued Canada had no residential school policy and never intended to eradicate Indigenous languages and culture.

Talks on the class action, which was certified in 2015, broke down in February after about two years of negotiations and now the matter is scheduled to go before the Federal Court in Ottawa for trial in April.

The class action was filed on behalf of "day scholars" — students who attended residential schools in the day but returned home in the evening — their descendants and more than 100 First Nations.

Ottawa argued in its statement of defence, filed in September 2015, that the federal government never had a "residential school policy" and that Canada never intended to "eradicate Aboriginal languages, culture, identity, or spiritual practices" through the institutions.

The argument runs counter to the findings of the Truth and Reconciliation Commission (TRC) — which were accepted by Prime Minister Justin Trudeau — and the words of former prime minister Stephen Harper's 2008 apology.

"The positions taken by the government in this litigation are frankly disgusting," said former Assembly of First Nations national chief Matthew Coon Come, in a recent statement following the breakdown in talks.

"The government is going to force us to litigate whether there was a residential school policy aimed at destroying our language and culture? This is opposite of reconciliation."

In an emailed statement, the office of Crown-Indigenous Relations minister Carolyn Bennett said Canada is reviewing its defence in light of the Attorney General of Canada's Directive on Civil Litigation Involving Indigenous Peoples that was issued in January.

"The Statement of Defence was originally filed in 2015 by the previous government and does not reflect our government's values," the statement said.

It said the Federal Court has given Canada leave until April 1 to make any changes to its Statement of Defence.

Day scholars excluded

Day scholars were excluded from the 2006 Indian Residential Schools Settlement Agreement and thus not eligible for the common experience payments that were part of the deal — $10,000 for the first year of living at a residential school and $3,000 for every year after.

However, day scholars could file abuse claims under the Independent Assessment Process compensation system created by the settlement agreement.

In the class action, day scholars are seeking the same common experience payment provided to other residential school survivors.

"Our day scholars are dying away," said Jo-Anne Gottfriedson, chair of the Day Scholars Executive Committee.

"In my community, when we started this class action in 2010, we had 129 day scholars and now we have less than 80."

Gottfriedson's sister Violet Gottfriedson is one.

"She passed away two years ago. The last day we were together, sitting in a chair, and she said … 'I want you to continue with our work because our people deserve to be treated fairly,'" said Jo-Anne Gottfriedson.

The class action was also filed on behalf of the children of day scholars and 105 First Nations that have signed on to the court action whose members attended residential schools.

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

Gottfriedson said the lawsuit is specifically about the loss of language and culture caused by residential schools.

"How do we ensure our people gain their cultural values and beliefs back?" said Gottfriedson.

"You have to look at every aspect of the impact on our community, which are huge."

Gottfriedson said no global dollar amount for compensation was put into the statement of claim because it was a matter for negotiation.

It was something the two sides could never find common ground on, she said. Plus Ottawa said it couldn't even determine how many day scholars there were, she said.

Minister says Ottawa would rather negotiate

Crown-Indigenous Relations Minister Carolyn Bennett has held two news conferences on the settlement of a class action lawsuit by former students of day schools in First Nations touting her government's willingness to negotiate instead of litigate. The Trudeau government has also settled the Sixties Scoop class action.

A different story has unfolded in the day scholars class action.

Gottfriedson said Bennett initially appointed Tom Isaac, an expert on Indigenous law, to lead the negotiations, but as talks progressed he took a backseat to Justice Canada lawyers who changed the tone of the discussions.

Gottfriedson said Bennett phoned her at one point last fall to say she agreed with common experience payments for day scholars.

But it never translated to the negotiating table where Justice Canada lawyers maintained they had no mandate from cabinet to agree to key aspects of a potential deal, she said.

In an emailed statement, Bennett's office said Ottawa is still open to negotiating.

"A negotiated settlement is preferred as it can allow parties to go beyond remedies that can be granted by the courts and explore concrete and meaningful ways to address the culture, traditions and customs that have been lost," said the statement.

"However, Canada respects the Gottfriedson plaintiffs' decision to return to litigation and we remain open to returning to mediation toward achieving a negotiated settlement."

Lawyer John Phillips, a partner with firm with Waddell Phillips, who is representing the day scholars, said it became clear that Ottawa's lawyers were not budging in talks.

"They were not going to get anywhere near what we considered the only equitable settlement for the day scholars," he said.

Phillips said Ottawa refused to agree day scholars suffered in the same way as residential school survivors.

Day scholars suffered a daily cultural whiplash moving from a school aimed at driving out their language and culture to their homes where their culture and language prevailed, he said.

"There is a refusal to recognize that the damage, the irreparable damage done to students at residential schools was the same and we have provided ample evidence in our process that that assumption is false," said Phillips.

Ottawa may also be worried the class action is seeking compensation for First Nations over the cultural impact of residential schools because it may hew too close to reparations, he said.

"That is what they are afraid of with the band class," he said.

"It really means looking hard and fast at what it takes to destroy a culture and the language and the cost of that destruction has to be met with at least an equivalent cost if not a greatly increased cost to repair the damage that was done."