Case Commentaries
[Case commentaries provided by the Court of Appeal of Saskatchewan]
December 15, 2006
Sparvier v. Canada (Attorney General), 2006 SKQB 533 (37 pages)
The Saskatchewan Court of Queen’s Bench has issued its decision in the case of Sparvier v. Canada (Attorney General) (2006 SKQB 533), one of nine decisions to be issued by courts across Canada dealing with the settlement of claims by former students at Indian Residential Schools. The Saskatchewan decision was issued with decisions of the Courts in Ontario, Quebec, British Columbia, Alberta, Manitoba and the Yukon Territory. The Saskatchewan decision approved the settlement agreement subject to certain concerns being addressed regarding the administration of the Independent Assessment Process (“IAP”) and confirmation that the fees to be charged by lawyers to former students claiming additional compensation for sexual or serious physical abuse will be regulated.
Saskatchewan’s decision adopted the more expansive reasons delivered by Regional Senior Judge Warren Winkler of the Ontario Supreme Court in the Ontario decision of Baxter v. Canada (Attorney General) (Court File No. 00-CV-192059CP). Accordingly, the Saskatchewan decision in Sparvier should be read in conjunction with the Ontario decision in Baxter. The Saskatchewan decision was also consistent with the decisions of the Courts in British Columbia, Alberta and Quebec.
Justice Dennis Ball stated:
[18] To summarize, I concur that the following matters identified by Winkler R.S.J., are to be addressed (references are to the relevant paragraphs in the Baxter, supra, judgment):
(a) Financial information sufficient to enable the courts to make an informed decision regarding the anticipated cost of administration of the IAP will be provided for the purposes of approval and thereafter on a periodic basis (para. 52);
(b) An autonomous supervisor or supervisory board will oversee the administration of the IAP, reporting ultimately to the court (para. 52);
(c) The adjudicator hearing each case under the IAP will regulate counsel fees to be charged having regard to the complexity of the case, the result achieved, the intention to provide claimants with a reasonable settlement, and the fact that an additional 15% of the compensation award will be paid as fees by Canada (para. 78); and
(d) The parties will establish a protocol for determining the manner in which issues relating to the ongoing administration of the settlement will be submitted to the courts in each jurisdiction for determination. This will ensure that the requirement for unanimous approval of all courts of any material amendment will not unduly hinder or delay the ability of the courts to make timely decisions (para. 81).
[19] I am approving the entire settlement as “fair, reasonable and in the best interests of the class as a whole” subject to receiving assurances that the identified deficiencies will be addressed. My approval will extend to those portions of the Settlement Agreement which provide for payment of legal fees and disbursements to the National Consortium, to independent counsel and to Merchant Law Group (“MLG”).
The Saskatchewan decision dealt more extensively than the other Courts with a dispute regarding legal fees payable to Merchant Law Group by the Government of Canada as a result of the settlement. Under the Settlement, it was agreed that fees payable to MLG are not to exceed $40 million and are to be no less than $25 million. The Court approved the agreed minimum amount payable. If Canada and MLG cannot agree on the actual amount to be paid, MLG will be required to bring an action in court and to adduce all relevant evidence to verify its claim. If MLG does not do so, it cannot expect to receive more than the agreed minimum amount.