On December 28, 2011, the Ontario Superior Court of Justice – Divisional Court released its decision. Many of us attended before the Divisional Court in Toronto on October 28, 2011 when the Court heard the argument of the Defendant Attorney General of Canada and the responding argument of the intended representative Plaintiffs, Marcia Brown and Robert Commanda.
In its 6 page decision, the Divisional Court disagreed with Justice Perell, the first judge who ruled that the case could go forward as a class action proceeding, provided our pleading was amended and provided the Court approved the litigation plan.
Justice Perell had accepted that the facts, as presented by Marcia Brown and Robert Commanda on behalf of 16,000 fellow aborignal persons, contained good enough reasons for the 60’s Scoop to be redressed through a class action. This action, according to Justice Perell, would be a case where any aboriginal person who was placed in a non-aboriginal home in Ontario between 1965 and 1984 could join in and have access to justice for the loss of their cultural identity as a result of what happened during the 60’s Scoop.
It still is that case, one about 16,000 children who lost their cultural identities when placed in non-aboriginal homes (not residential schools), and the federal government did nothing to help them preserve their culture and traditions and language.
The Divisional Court is an appeal court. The judges were Associate Chief Justice Cunningham and Justices Pardu and Mulligan. In an unanimous ruling, the three judges disagreed with how Justice Perell made His decision. They ruled, in effect, that Marcia Brown and Robert Commanda have to re-start their case all over again, and they have to do it before a different judge.
The Divisional Court’s ruling has to do with the question of proper procedure under the Class Proceedings Act, the statute that governs class proceeding actions in Ontario. The ruling of the Divisional Court has caught the attention of legal experts, and one expert has written a commentary about it in the Lawyers’ Weekly newspaper. The link for it is:
There is also a recent article in the Toronto Star. The link for it is:
We are working hard now to appeal the decision of the Divisional Court. The first step is an application to the Court of Appeal for leave, or permission, to appeal. Deputy Grand Chief Terry Waboose of NAN and Kenn Richard of Native Child and Family Services of Toronto are helping by submitting affidavits as to why and how this case is one of “public interest” or important enough for the Court of Appeal, Ontario’s highest court of authority, to review the decision of the Divisional Court and decide what is the fairest legal answer to the procedural problems involved in this case.
The Divisional Court also ruled that Marcia Brown and Robert Commanda have to pay costs of $25,000.00. The Defendant Canada asked for more costs than that. This part of the ruling is also a concern and why we are asking for leave to appeal is because, of course, Brown and Commanda and none of the class members who want to be heard, have anywhere near that kind money to pay for the costs. If persons like Brown and Commanda have to pay those costs, then how can any of the survivors of the 60’s Scoop ever be heard and ever have access to justice?
It’s now our turn for an appeal, as it was Canada’s from the first decision.
We started working on this case in 2003. It is now 9 years later. We may have to go to the beginning, return to the clearing in the lands and start again, walk a different path into the “forest of justice”. That is why I, who have recently joined as a helping manager to the class action, have called this posting “The hero’s journey”.
Chithika Withanage Class Action Manager 416 956 5639 firstname.lastname@example.org