Certification hearing for $600M MMIWG class action against feds kicks off Monday

A Regina lawyer says he is seeking certification of a class-action lawsuit against the federal government and RCMP on behalf of about 60 families who he says have been wronged by the handling of the deaths and disappearances of Indigenous women and girls. 

Tony Merchant of Merchant Law Group said a five-day hearing in the Federal Court of Canada is set to begin Monday. He said it will take place in Regina in recognition of the problems in Western Canada and Saskatchewan in particular. 

"Court decisions don't bring back lives, but where you can't punish the system that has failed a group of Canadians, an acknowledgement that the system has failed is the path of closure," said Merchant. "An acknowledgement by the third arm of governance, the judicial arm, the federal court of Canada, an acknowledgement by compensation, it matters.

"It's not the real answer because the real answer would be it never happened in the first place, but people can't be brought back to life, so it's the best that society can accomplish for these people who are suffering."

The main plaintiff is Regina's Diane Bigeagle, whose daughter Danita Faith Bigeagle has been missing since Feb. 11, 2007. Bigeagle is now the caretaker of her two grandchildren.

"It's not really about the money. It's about what's going to happen to the children," Bigeagle said in 2018, explaining that some compensation could help her grandchildren move on from their mother's disappearance. 

The class-action suit is seeking $500 million in damages and $100 million in punitive damages, or any amount the court deems appropriate. 

Merchant said if he is successful, he will be starting an advertising campaign so that other families can benefit as well. He said damages will be divided up with consideration to each family's individual situation. 

The lawsuit was originally filed in 2018, citing a "negligent" and "lackadaisical" approach to the investigation of MMIWG cases. 

Fed's position goes against national recommendations: Merchant

In the fall of 2016, a national inquiry into missing and murdered Indigenous women and girls (MMIWG) commenced. In total, the inquiry heard from close to 1,500 people personally affected by violence. 

The final report made 231 recommendations, termed "calls for justice," in response to what it called a "Canadian genocide" spurred by "state actions and inactions rooted in colonialism and colonial ideologies."

Merchant said his clients feel nothing has been done to address the recommendations. 

The court documents filed by Merchant say the forensic document review project that came out of the government's inquiry states there have been an unusually high number of investigative errors, including destruction or loss of evidence, delays in starting investigations and failure to follow up on leads. 

One of the main promises the federal government made was to create a national action plan on MMIWG. In May, Crown-Indigenous Relations Minister Carolyn Bennett told CBC News that Ottawa is delaying the release of that plan, in part because of the COVID-19 pandemic.

On Friday, the federal government said it's still committed to the action plan.

In a statement, the government said it intends to "strengthen existing policies and programs, and consider new actions and partnerships to increase the safety of Indigenous women, girls and LGBTQ and two-spirit people in Canada."

Merchant said the federal government opposes the certification of the lawsuit. He said that position seems to go against the goals of the MMIWG report.

"We thought, and continue to believe, that the case is an important case for Canada and justice generally," said Merchant.

"If they are intending to somehow oppose their recommendations, that's surprising."

Minister of Public Safety and Emergency Preparedness Bill Blair issued a statement that said, in part, "we are opposing certification in Bigeagle vs. Her Majesty the Queen for legal reasons that are specific to this case, as it is unprecedented in its breadth, is inconsistent with previous rulings surrounding private duty of care, and contains cases where the RCMP is not the police of jurisdiction."

Merchant said his team has put hundreds of precedents before the court, but that this case is also unique.

Families not given closure

Merchant said the families he has talked to have faced uncertainty, unfairness and lack of sympathy when dealing with the justice system.

Court documents allege more than 50 meetings took place between Bigeagle and the RCMP about her daughter's disappearance, and that the RCMP did not pay attention or take notes during the meetings.

"It's almost like they're being revictimized," Merchant said. "They go years and years not really knowing what is going on. 

"There's an absence of closure made worse by the sense that this is a matter of their birth and a matter of bias by the government and bias by policing."

Bigeagle said she'll never be able to move on until she finds her daughter.

"I'll probably die not knowing. That's the hardest part, is not knowing," she said.

Justice Glennys McVeigh, who is originally from Saskatchewan, will be flying in from Ottawa to oversee the proceedings. The primary lawyer for the Crown will be Christine Ashcroft.