Lawyers argue over how to proceed with Île-à-la-Crosse school lawsuits, as survivors call for closure

The lawyers from two competing class action suits were in a Saskatoon courtroom Wednesday. There they argued at length about the best way to represent Métis survivors of the Île-à-la-Crosse boarding school. 

Survivors and intergenerational survivors of the school filled the Court of King's Bench courtroom, many dressed in orange — a reminder of the suffering children went through at the school.

Legal representatives and plaintiffs said survivors deserve compensation and recognition for physical, sexual and emotional abuse they endured at the boarding school. It operated in the Île-à-la-Crosse community, about 460 kilometres north of Saskatoon, from the 1860s to the 1970s.

Île-à-la-Crosse students were denied the Indian Residential School settlements that others received, on the basis that the school was run by the Roman Catholic Church with no federal funding.

One of the lawsuits discussed in court on Wednesday is over 17 years old. The other lawsuit was filed in 2022 and is looking to have the older suit stayed and its plaintiffs brought into the latest suit's fold.

Neither has been certified as a class action yet.

Lawyer Tony Merchant says both lawsuits should go forward

Tony Merchant and the Merchant Law Group head up the nearly two-decade old Aubichon class action. Many Île-à-la-Crosse boarding school survivors argue the suit has stalled.

The newest class action was filed by Wandell Phillips law firm and is known as the Gardiner action. Both suits are looking to sue the provincial and federal governments for the school's harm to survivors.

Louis Gardiner is a Métis survivor of the boarding school and a member of the newer lawsuit. He said survivors are getting old and dying, and are looking for closure now.

"We have to start moving on this. We want action. We want closure. People like elders that are in their 80s ... they want to put closure to this and enjoy life at least and there's peace," Gardiner said.

Tony Merchant said on Wednesday that both lawsuits should move forward. He does not think his should be stayed. 

But Justice Naheed Bardai said the point of class actions is to have just one lawsuit.

Jeffrey Brick, Crown counsel for the Government of Saskatchewan, said the province is not taking a stance on what the judge decides, but does not want to take on two similar cases at the same time. He said having both Aubichon and Gardiner suits proceed "makes no sense."

Merchant argued that if Aubichon is stayed, the plaintiffs who have died since will not have any reward for their estate. He said the Gardiner class action does not expressly include claims for people who have died since 2005.

"The problem is their plan will cut out all the people who died, and the provincial government has been resistant to settling these cases," Merchant told reporters following court proceedings. 

But Margaret Waddell, counsel for the Gardiner class action, said that is not the case.

"We said it and the government of Saskatchewan lawyer agreed that it really does cover that. But if there's any concern, and if the judge wants that little loophole to be clarified, we simply need to add a couple of words to the claim and an amendment to say that it's brought on behalf of the estates as well as the living people. It's easily done," said Waddell. 

Claims of lack of communication

During Wednesday's court proceedings, Bardai said he is concerned that Merchant has not communicated with his clients. Merchant responded by saying he is not obligated to communicate with his Aubichon clients. Bardai disagreed with Merchant's stance.

Merchant also said he was doing work in the background and had a strategy that he hadn't shared with his clients. 

Duane Favel, mayor of Île-à-la-Crosse and a survivor plaintiff in the Gardiner class action, agreed with Bardai that Merchant's lack of communication with his clients is concerning.

"Very little progress has been made over 17 years, when there's all kinds of class actions being resolved across the country that are similar to the Île-à-la-Crosse case. There's no words to say in terms of how frustrated our survivors are," said Favel. 

Favel said there are about only 700 Île-à-la-Crosse boarding school survivors left. He said its important they are represented by the Wandell Phillips law firm and not Merchant Law Group. He said they gave Merchant a chance for 17 years, and were under the impression that the class action was moving forward and was certified.

"There was no communication with the survivors, with the steering committee. I've been on this steering committee since 2005. I've never had a conversation with Merchant. He's never been at our table," Favel said. 

"In the last three years, with the help of he Métis Nation—Saskatchewan, we've invited Merchant to come and have a conversation with us several times. And he didn't come to the table to talk to the people he's supposedly representing."

Justice Naheed Bardai said he will deliver his decision on the class actions at a later date.

A national Indian Residential School Crisis Line is available to provide support for survivors and those affected. People can access emotional and crisis referral services by calling the 24-hour service at 1-866-925-4419.

Mental health counselling and crisis support is available 24 hours a day, seven days a week through the Hope for Wellness hotline at 1-855-242-3310 or by online chat.