Harper govt seeks leave to appeal 60s scoop lawsuit that was greenlit this year

Federal govt seeks leave to appeal 60s scoop lawsuit that was greenlit this year by Diana Mehta, The Canadian Press, December 1, 2013, Calgary Herald
The lawsuit against the Canadian government refers to a period of time between the 1960s and the 1980s when thousands of aboriginal children were taken from their homes and placed with non-native families by child welfare services. None of its claims have been proven in court. … An Ontario court certified the case in July, but the federal government will ask Wednesday for leave to appeal that decision. Martel finds the government’s attempts at fighting the case frustrating. “This is to change how Canada addresses its children,” she said of the lawsuit. “When Canada chooses to appeal…they are appealing a fact of history.”

The period covered by the suit stretches from December 1965 — when the federal government signed an agreement with Ontario known as the Canada-Ontario Welfare Services Agreement — until December 1984, when aboriginality was made an important factor in child protection and placement practices through the Child and Family Services Act. In a written decision from Ontario’s Superior Court of Justice which certified the lawsuit, a judge said the federal government was wrong to argue that the 60s scoop could not be questioned or challenged because all placement of children followed orders from courts that were supposed to act in the children’s best interests. “The plaintiffs are not challenging the actual court decisions that allowed the aboriginal children to be placed in non-aboriginal homes. There is no collateral attack in this proposed class action on the judicial decisions,” wrote Justice Edward Belobaba. “The plaintiffs are alleging that the Federal Crown had a duty or responsibility to protect and preserve the Indian children’s culture and identity both when entering into the 1965 Agreement, and after the children were placed in the non-aboriginal homes, and failed to do so.”

In certifying the suit, Belobaba narrowed the definition of those who could join the proceedings to children taken from Indian reserves in Ontario who were placed in non-aboriginal homes where they were not raised with aboriginal customs. The lawsuit is being hailed by the plaintiffs’ lawyer as a landmark case. “A lost generation of children of the 60s scoop means children who lost their identities, lost connection with their culture, with their traditions, with their language,” said Jeffery Wilson. “It’s important not only for First Nations children, it’s important for children of all peoples all around the world that there should not be political solutions or expedient solutions that result in the loss of cultural identity for children….The issue is this should not ever happen again. These people have suffered remarkable pain.” The case has been working its way through the courts for over three years. Plaintiffs asked for permission to put the case forward as a class action in February 2009, but the federal government successfully appealed certification of the proceedings, largely on a procedural point. A new hearing was then ordered in January this year. In July, the Ontario Superior Court of Justice certified the case after dismissing a Crown motion asking for the suit to be quashed. If the government is granted leave to appeal after this week’s hearing, Wilson said the case will enter another round of legal wrangling which will likely run well into 2015. “We’re spending a lot of taxpayer dollars and a lot of time on procedural points when Canada indicated at court that they regretted what happened and so the larger issue is why aren’t the parties sitting down and attempting to resolve this issue,” he said. “It is slow or frustrating for a lot of the potential claimants.” [Emphasis added]

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