Below are answers to some of the most commonly asked questions about the proposed settlement. The Notice of Certification and Settlement Approval Hearing – Long Form contains even more detailed information, and we encourage everyone to review it carefully.
The Gowling WLG team is also here to help answer any questions you may have – and our support is free.
Q: What is the proposed Federal Indian Day School settlement all about?
In 2009, Garry McLean launched a class action lawsuit against Canada to seek compensation for the harms suffered by Indigenous students forced to attend Federal Indian Day Schools across Canada. Survivors of Federal Indian Day Schools were excluded from the Indian Residential Schools Settlement Agreement.
In May, the Federal court will be asked to approve the proposed settlement for a nation-wide class action lawsuit against Canada to compensate survivors for harms they suffered while attending federally operated Indian Day Schools. If approved, survivors will be eligible to claim compensation.
Q: The term “Indian” is outdated, not inclusive, and even offensive. Why use it?
Using this word was not an easy choice, because we recognize that it has negative connotations for many people. Federal “Indian Day Schools” were created under Canada’s “Indian Act,” which applied to First Nations, Inuit, and Métis peoples. The schools, and their name, reflect the dark reality of Canada’s history with Indigenous peoples. This proposed settlement sheds important light on that history.
Q: When will there be a decision about the proposed settlement?
The proposed Settlement Approval Hearing was heard on May 13, 14 and 15, 2019. We are awaiting a decision from the Court on whether the proposed settlement is approved.
Q: What rights do I give up, if any, by agreeing to the settlement?
If the settlement is approved and you do not opt out, then you will give up your right to bring an individual suit against the Federal government for harms experienced as a result of attending a Federal Indian Day School.
Nothing in the proposed settlement agreement prohibits you from bringing a suit against any other entity or organization for harms you experienced.
Q: Who is eligible for the proposed settlement?
Everyone who attended one of the 700+ Federal Indian Day Schools and experienced harm will be eligible to claim compensation under the settlement. This includes, but is not limited to, First Nations, Inuit, and Metis peoples. You can find the list of schools here: https://indiandayschools.com/en/documents/
Q: Are family members eligible to receive compensation on behalf of a deceased family member who attended a Federal Indian Day School?
While family members are not eligible to receive direct compensation, estates can make claims. If the deceased has no will or executor, please also visit the link for further information on estates: https://www.aadnc-aandc.gc.ca/eng/1100100032357/1100100032361 Representatives of estates should begin the process of estate administration as soon as possible to be able to file an application when the claims process begins. This will go back as far as July 31, 2007. If a person has passed away between July 31, 2007 and today, the estate of that person can still make a claim on that person’s behalf.
Q: I attended an Indian Day School, but I’m not sure who ran it. Am I eligible?
Some Indian Day Schools were run by entities other than the Federal government, for example by provincial governments. This proposed settlement only applies to those who attended Federally-run and operated schools. To find out if your school was Federally-operated, please contact Gowling WLG directly.
Q: What if I also attended a Residential School and received a Common Experience Payment from the Residential School settlement? Can I still apply?
Yes. As long as you attended a Federal Indian Day school at some point, you would be eligible to apply for compensation under the proposed settlement.
Q: Why does it only go back as far as July 31, 2007?
This was not an arbitrary date that was chosen by the parties, but rather based upon the original filing date of 2009, and the application of the general 2 year limitation period. The Indian Day School class action was filed in 2009 so the cut-off date is July 31, 2007 for this case.
Q: What does the proposed settlement include in terms of compensation?
Compensation ranges from $10,000 for harms associated with attending a Federal Indian Day School to $200,000 for repeated sexual abuse and/or physical assault leading to long-term injury. Eligible Class Members will receive a payment reflecting the most severe harms they suffered while attending an Indian Day School, irrespective of the number of schools attended.
The proposed settlement recognizes that harm was experienced not only by individual people, but also by families and whole communities. That is why it also includes a $200M Legacy Fund to support commemoration projects, health and wellness programs, as well as language and culture initiatives for Indigenous communities.
Q: When can I expect to receive compensation?
If the settlement is approved, the next step is to allow time to make sure all eligible people are able to apply for a claim. We will have a better sense of timing regarding compensation following the May hearings, if the settlement is approved.
Q: Are there any fees or costs associated with participating in the class action?
No. There are no legal fees or costs associated with participating in the class action. If you have questions, Gowling WLG is here to help for free.
Q: How much are the lawyers getting paid?
Canada has agreed to pay Class Counsel $55,000,000 for legal fees and disbursements. This amount is separate and apart from the compensation for survivors and for the Legacy Fund. These fees and disbursements are subject to Court approval of the Settlement Agreement. The proposed Settlement Approval Hearing was heard on May 13, 14 and 15, 2019. We are awaiting a decision from the Court on whether the proposed settlement is approved.
Q: What is the Legacy Fund?
The proposed settlement includes a $200M Legacy Fund to support commemoration projects, health and wellness programs, “truth-telling” events and the restoration and preservation of Indigenous languages and culture (‘Legacy Projects’).
Q: How do I apply for the Legacy Fund?
Grants will be made from the McLean Day Schools Settlement Corporation to charities and not-for-profit organizations in response to proposals made. There will be guidelines and procedures put in place for the selection of organizations that apply for these grants. If an organization is given a grant, it will be responsible to carry out a Legacy Project in its community. The Legacy Fund is subject to the Courts approval of the proposed settlement.
Schedule K – List of Federal Indian Day Schools
Q: I attended a Federal Indian Day school. What should I do to make sure I’m included?
You don’t have to take any action right now to be included in the settlement. Information about how to make a claim for compensation will become available on this website if the proposed settlement is approved in May. To check if your school was listed as Federal Indian Day School, please see the List of Federal Indian Day Schools (as of March 12, 2019). This list will be updated on an ongoing basis. Please let Class Counsel know if you think there is a school you know about that is not on this list.
We encourage you to register with Gowling WLG so that we can keep you up to date with information as soon as it is available.
Q: What if I don’t see the school I attended on the list of eligible schools?
If you know of a Federal Indian Day School that isn’t on the list, but you think should be, we want to know about it. Please contact Class Counsel: firstname.lastname@example.org. As a reminder, the current list of schools can be found here: https://indiandayschools.com/en/documents/.
Q: Can I opt-out of the proposed settlement?
Not at this time.
If the settlement is approved, class members will have ample time to opt out of the settlement. Those who opt out will not receive compensation from this settlement, however they will retain the right to bring an individual claim against Canada for harms suffered, if they wish to do so.
Q: What’s the difference between objecting and opting out of the proposed settlement?
You have the right to object to the proposed settlement now and still receive compensation if the settlement is approved in court.
Opting out can only happen once the settlement is approved. It means choosing to remove yourself from the Class. People who opt out will not receive compensation from this settlement, however they will retain the right to bring an individual claim against Canada for harms suffered, if they wish to do so.
Q: If I objected to the proposed settlement, can I still receive compensation?
Yes. You can object to the proposed settlement and also claim compensation if the settlement is approved.