Judge accused of being a 'cheerleader' for $875M Sixties Scoop deal

The federal court judge who approved an $875-million deal for Sixties Scoop survivors is facing accusations of bias because of his involvement in other aspects of the agreement.

The settlement reached last week is aimed at compensating an estimated 20,000 Indigenous people who were taken from their families as children and adopted out to non-Indigenous parents between the 1950s and the 1980s, stripping them of their cultural heritage.

Justice Michel Shore approved the deal as it was proposed on Friday, roughly 60 minutes after two days of emotional testimony concluded in Saskatoon. It will see $750 million go to survivors, $75 million to lawyers, and $50 million set aside for an Indigenous healing foundation.

But critics are arguing Shore should not have been allowed to preside over last week's hearings, as he was involved in the creation of the proposed settlement last year and sits on the board of a $50-million healing foundation being established as part of the deal. 

"The judge's role is to be dispassionate — not to be an advocate or cheerleader for the class-action settlement," said Jasminka Kalajdzic, a law professor at the University of Windsor and one of the country's leading experts on class-action lawsuits.

Some survivors, who travelled from across North America to attend the hearing, said they were outraged by Shore's comments in support of the settlement at the hearings, before it had formally been approved. Others were upset by the three-minute time limit they were given to share their stories.

"It seems like this decision was already made up, and this whole court case was an opportunity to sell the package," said survivor Mary Longman, who testified at the hearings and asked the court to also consider abuses suffered when determining compensation.

But Raven Sinclair, a social work professor in Saskatoon, cautions against leaping to conclusions of bias and conflict of interest based on Shore's role with the healing foundation.

She said it's a necessary connection, and only on paper.

"It's a temporary unit and it's not a decision making board, and so the people that are named on the non-profit incorporation papers are not decision makers, they're not the board, they're the temporary sort of figureheads," she said in an interview.

She says that survivors will have a say in the composition of the final board.

'It raises eyebrows'

Like Kalajdzic, Craig Jones, a law professor at Thompson Rivers University and author of the book Theory of Class Actions, says survivors are right to be concerned.

This case is complex, he said, and carries enormous financial, political and societal implications, similar to the residential school or tainted blood settlements. 

Jones stopped short of accusing Shore of bias but said he "can see why it raises eyebrows."

Kalajdzic was more direct. "There should be a judge with fresh eyes, who doesn't have a history with the parties, a judge who can exercise rigorous oversight and take a hard look at the case. That, in my view, would have been the more appropriate procedure," she said.

The deal has created a divide among survivors of the Sixties Scoop. Some were elated, saying it is long-awaited recognition of their suffering and a move that will avoid years of costly court battles, with no guarantee of victory.

But others say the settlement is flawed because it excludes non-status and Métis people, caps individual compensation at $50,000 and gives too much money to the lawyers.

No rules broken, says Federal Court official

Andrew Baumberg, a spokesperson for the Federal Court of Canada, declined to comment when asked about the concerns around Shore's objectivity, Instead, he pointed to Federal Court Rule 391, which allows a judge to oversee multiple elements of a case, provided that no parties object.

The law firms representing the class members OK'd Shore overseeing the settlement hearing.

Kalajdzic says Rule 391 should only be used in absolutely necessary and exceptional circumstances and argues that wasn't the case here.

Precedents have made it extremely difficult to appeal an approved class-action settlement, she said, but those unhappy with the agreement have other options.

She said survivors who feel strongly can "vote with their feet" and opt out of the settlement. The agreement gives them 90 days to do so. Further, if more than 2,000 members reject the offer, the government can kill the deal — and some opponents are pushing for just that.

Meanwhile, some of the survivors, including Longman, are considering filing a complaint with the body that oversees federal court judges.

And one last step remains before any money is disbursed: an Ontario judge overseeing a smaller, similar lawsuit for claimants in that province must give his or her approval later this month.

Shore has said he will issue the reasons for his ruling in several weeks' time.