Paul Vickery

Class counsel brought an application to assess the financial sufficiency of the Compensation Fund established under the Hepatitis C class action settlement and sought a declaration prioritizing the transfer of surplus funds to the insolvent Past Economic Loss and Dependents Fund (PELD Fund).

The court found that the Compensation Fund was solvent with a small projected surplus, while the PELD Fund remained insolvent.

To prevent inequity for eligible class members who had received nothing from the depleted PELD Fund, the court authorized the transfer of the remaining Compensation Fund surplus to the PELD Fund, with the specific allocation to be determined at a future hearing.

The plaintiffs, former federal inmates with mental health disorders, brought a proposed class action against Canada alleging systemic abuses in federal penitentiaries, including the overuse of solitary confinement and failure to provide adequate mental healthcare.

They alleged breaches of sections 7, 9, and 12 of the Charter.

On consent, the court found that all criteria under section 5(1) of the Class Proceedings Act, 1992 were met and certified the action as a class proceeding.

The Steering Committee, an unincorporated group of physicians and scientists, sought to intervene in a joint hearing of motions concerning the allocation of actuarially unallocated funds from the 1986-1990 Hepatitis C Settlement Agreement.

The Committee proposed allocating funds to its "National HCV Initiative," which aimed to benefit all Canadians with HCV, not just class members.

The court dismissed the intervention request, finding that the Steering Committee was a stranger to both the Settlement Agreement and the underlying litigation, lacking privity of contract or any substantive right to participate in the administration of the settlement.

Requests for directions were brought regarding the disposition of documents generated in the Independent Assessment Process established under the Indian Residential Schools Settlement Agreement.

The moving parties sought guidance on whether the documents, which contained highly sensitive narratives of abuse and personal information, should be archived or destroyed.

The court held that the documents were confidential, subject to the implied undertaking and the law of breach of confidence, and were created for a private adjudicative process.

Interpreting the settlement agreement and exercising supervisory jurisdiction over the class action settlement, the court concluded the documents must ultimately be destroyed after a retention period.

During the retention period, claimants must be notified of their option to consent to the transfer of redacted records to the National Research Centre for Truth and Reconciliation.

The Truth and Reconciliation Commission sought directions regarding Canada's obligations under the Indian Residential Schools Settlement Agreement to provide documents archived at Library and Archives Canada (LAC) and documents relating to the TRC's legacy mandate.

Canada moved to strike the TRC's request, arguing the TRC lacked capacity and standing, and moved to strike several affidavits.

The court held that the TRC had capacity to bring the proceedings and declined to strike most of the affidavits.

On the substantive issues, the court ruled that Canada's obligation to provide relevant documents extends to those archived at LAC, but that the TRC's legacy mandate does not include evaluating Canada's policy responses, meaning Canada need not produce documents relating to those responses.