Sixties Scoop settlement may be in jeopardy after Ontario judge rejects legal fees as 'excessive'

In a ruling last week, Justice Edward Belobaba of the Ontario Superior Court approved the settlement amount for Sixties Scoop survivors but rejected lawyers' legal fees, calling for renegotiation.

Settlement agreement awarded $75M in fees to be divided among 4 law firms

Chief Marcia Brown Martel sings outside the Parliament buildings following a government news conference last October announcing a settlement agreement for Indigenous survivors of the Sixties Scoop. (Adrian Wyld/Canadian Press)

A national settlement for survivors of the Sixties Scoop may be in jeopardy after an Ontario judge rejected the provision for legal fees as being too high and called for their renegotiation.

In a ruling released last week, Justice Edward Belobaba of the Ontario Superior Court approved the distribution of between $25,000 to $50,000 to an estimated 22,000 Sixties Scoop survivors as part of the settlement agreement.

However, the judge rejected the proposed $75 million in legal fees, to be divided between four firms, calling it "excessive and unreasonable."

"Because the $75 million legal fees provision is not approved, the rest of the Settlement Agreement cannot take effect – unless the legal fees provision is de-linked from the other settlement provisions that have been approved," said Belobaba in his ruling.

From the 1950s through the 1980s, thousands of Indigenous children were taken from their families and communities placed with non-Indigenous families.

Many children were subject to physical, emotional or sexual abuse while most lost connection to their cultures and languages.

The $800 million settlement agreement reached in October 2017 ended a number of class action lawsuits against provincial and federal governments. The settlement has been criticized for not including non-status Indians and Mé​tis.

Survivors in limbo

"We thought we were so close; now there's a setback that could be catastrophic," said Colleen Cardinal.

Cardinal is the co-ordinator and co-founder of the National Indigenous Survivors of Child Welfare Network and a Sixties Scoop survivor originally from Saddle Lake Cree Nation in Alberta.

Colleen Cardinal is survivor of the Sixties Scoop and a co-founder of the National Indigenous Survivors of Child Welfare Network, based in Ottawa. (Matthew Kupfer/CBC)

After years of litigation and negotiations, survivors are wondering what will happen if the settlement doesn't go through, Cardinal said.

"The lawyers are arguing over their fees which is a very privileged position be in, considering we're only getting $50,000 and they're getting millions," she said.

Potential for further litigation 

Carolyn Bennett, Minister of Crown-Indigenous Relations and Northern Affairs, expressed her concerns Tuesday in the wake of Belobaba's ruling.

"This settlement agreement does not address all of the harm done by the Sixties Scoop – there is more work to be done, including with Métis and non-status peoples," she said in a statement.

"This agreement is, however, a very important step forward for thousands of people. They have waited far too long to be recognized and for the harms done to them acknowledged. They should not be made to wait any longer nor suffer through any more court battles."

During what is known now as the Sixties Scoop, federal and provincial agencies would place ads like this in newspapers, trying to place Indigenous children in white homes.

The four firms named in the settlement are Wilson Christen LLP, Klein Lawyers, Koskie Minsky and the Merchant Law Group. 

If the four cannot agree to de-link the legal fees provision and renegotiate it separately from the settlement's other provisions, then the entire settlement agreement is at risk of going back into litigation. Wilson Christen LLP has been the only firm so far to agree to de-linking.

"Lawyers and judges, you put them together, you can have a court case going on for years," said Jeffrey Wilson of Wilson Christen LLP.

"The number one concern is the survivors and to get this resolved quickly as possible."

The court is waiting for responses from Klein Lawyers, Koskie Minsky and the Merchant Law Group.