Judicial complaint filed against judge who approved Sixties Scoop settlement
Jorge Barrera | CBC News | Posted: August 24, 2018 10:04 PM | Last Updated: August 24, 2018
Judge was listed as director of foundation created by settlement agreement days before ruling
A judicial complaint filed Friday against Federal Court Justice Michel Shore questions how he could mediate and approve the $875 million Sixties Scoop settlement agreement when it also created a healing foundation that was incorporated — with the judge as a director — days before he approved the deal.
Sixties Scoop survivor Joan Frame, who lives in Hamilton, filed the complaint by email with the Judicial Council of Canada, which oversees the conduct of judges in Canada's superior courts.
"I implore you to investigate and at this point I ask as a Sixties Scoop claimant that you remove him from the case and examine his conduct with regards to this case," said Frame in her complaint, which was shared with CBC News.
The Sixties Scoop Healing Foundation — which will receive $50 million from the $875 million settlement agreement —was incorporated as a not-for-profit corporation on May 3, according to federal corporate filings.
The filings lists Shore among six directors who are eligible to receive reimbursement for "reasonable expenses incurred by them in the normal course of their duties."
Shore approved the federal portion of the settlement agreement on May 11 after two days of hearings in Saskatoon that were widely derided as unfair by Sixties Scoop survivors who attended.
Shore delivered his ruling orally after 60 minutes of deliberation.
'The fix was in'
Frame was adopted from Samson Cree Nation, Alta., but she is unsure at what age because of problems in her file. Frame said this has led to confusion about her actual current age, which could be 54 or 55.
"I think the fix was in from the very beginning," said Frame, in an interview with CBC News.
Frame's complaint also raised issues with Shore's handling of the hearings and his decision to only allow survivors three minutes each to testify about their thoughts on the proposed agreement.
"Several Elders travelled quite great distances only to find themselves mocked, derided and given three minutes to speak," wrote Frame.
"They were instructed not to make their arguments personal.... We are talking about children being torn from their families at a young age and the damages."
A spokesperson for the Canadian Judicial Council said if someone has concerns with a possible conflict of interest, they should raise it with the court.
A spokesperson for the Federal Court said Shore's involvement as a director with the foundation was part of the public record and outlined in the settlement agreement.
Judge asked to sit on board
The agreement-in-principle states Shore would be a director along with two lawyers for the plaintiffs, three Sixties Scoop plaintiffs and three federal officials.
"Justice Shore was asked by all the parties to be a temporary member of the interim development board of the foundation to ensure implementation per its legal framework," said Andrew Baumberg, spokesperson for the Federal Court, in an emailed statement.
Baumberg said Ontario Superior Court Justice Edward Belobaba, who held separate hearings on the settlement agreement, also endorsed the make-up of the foundation.
However, Baumberg did not respond to a CBC News question specifically about the incorporation of the foundation, and the listing of Shore's name as a director before the two-day hearings.
Jeffery Wilson of Wilson-Christen, the law firm behind the successful Sixties Scoop class action certification in Ontario, said in "hindsight" he can see how Shore's role on the foundation could be perceived as problematic.
"I can empathize with stakeholders who, if they disagree with the settlement and think it's unfair for any number of reasons, may point to that and say it's also unfair," said Wilson.
"I can see that as a process issue, it's problematic."
Wilson, who filed the corporate registration and is the co-chair of the foundation, said it was done to get the foundation ready to go once the settlement was approved.
No one out to 'make a profit'
Wilson said Shore, the lawyers and government officials on the board would not receive any money, even through expense reimbursements, for their work on the board.
Shore is only a director as an interim measure until the foundation is turned over completely into Indigenous hands, he said.
"I don't think anyone involved in the settlement process is out to make a profit or to take advantage," said Wilson.
Jasminka Kalajdzic, a law professor at the University of Windsor and an expert on class actions, said she doesn't know of any other class action case where a judge has both mediated and approved the same settlement agreement.
"The two roles are not compatible in my view as the approval hearing judge should take a hard, independent look at the proposed settlement," said Kalajdzic, in an email.
"This is difficult to do when the judge has also been intimately involved in brokering the deal and also sitting on the foundation to be approved."
Melissa Parkyn, co-chair of the Sixties Scoop Indigenous Society of Saskatchewan, said she didn't know about Shore's ties to the foundation before she went to the hearing in May.
"I don't think that is fair," said Parkyn.
"I don't think he was fair in the hearings. I really feel like the government is selling me out."
Parkyn's family comes from Moosomin First Nation, Sask., and she was adopted out at six months old in 1979 from Lloydminster, which straddles the Saskatchewan-Alberta border. She said she doesn't know yet if she will opt out of the agreement, but she's heard of others who plan to walk away from it.
If more than 2,000 people opt out of the agreement, Ottawa has to decide whether it should be scrapped.