The class action involved those individuals who were in the care of the agencies between Jan. 1, 2005, and Mar. 31, 2019. The settlement agreement was approved by Justice Alain Huberdeau on Sept. 5.
CFS agencies apply for funds on behalf of children in their care, consistent with the federal Children’s Special Allowances Act. Under the Act, funds are to be used exclusively for the children’s care, maintenance, education, training or advancement. The monthly CSA payments were said to be equal to the maximum Canada Child Benefit payment and the Child Disability Benefit.
In the relevant period, the Manitoba government required the agencies to remit more than $335 million of the federal children’s special allowance payments back to the province’s general revenue fund. There were about 22 agencies involved.
In the case where an agency refused to remit, the province withheld maintenance and operations funding from them in the amount it estimated would be equivalent to the CSA the agency would have received. The province’s argument then was that it was right to keep the federal money because it was the one paying for children in provincial care.
Class counsels brought a court application in 2018 on behalf of six Indigenous CFS agencies and filed a proposed class action on behalf of the children at the same time relating to the province’s clawback from Indigenous agencies of CSA monies meant for children in their care. The agreement compensates about 30,000 children in the system, some who are now adults.
In 2020, the Manitoba government passed section 231 of the Budget Implementation and Tax Statutes Amendment Act (BITSA), which exempted the province from any legal responsibility pertaining to the matter.
Class counsels filed a constitutional challenge “alleging that Manitoba’s actions discriminated against the children based on their race and status as a child-in-care, in breach of the children’s Charter rights.
In 2022, the court found that Manitoba’s actions and section 231 of BITSA were unconstitutional and discriminated against foster children, 88 per cent of whom were First Nations and Métis children. The court had declared section 231 of BITSA invalid.
The parties reached an agreement in principle in March 2024 to settle three class actions, one relating to Indigenous CFS Agencies (the Flette action), another to non-Indigenous CFS agencies (the Lavallee action) and a third relating to Métis CFS agencies (the Lafontaine action).
The agreed-upon and court-approved compensation for the Flette and the Lavallee actions was $445,200,000, and the Lafontaine Action will receive $84,800,000. The amount includes class counsel fees, expenses and administration costs.
Class counsel noted on their website that this was a “100% plus plus” award where every dollar plus interest is going back to the children. It would be “virtually impossible” to achieve a better result if the cases proceeded to litigate damages.
“This has been a long time coming for our kids,” said David Chartrand, president of the Manitoba Métis Federation, in a statement. "From the very start, your Red River Métis Government committed that every penny that was unlawfully taken from our children in care will be returned to them, and I am so proud that we can finally deliver on that promise."
Winnipeg-based class counsel DD West LLP said in a statement that the agreement sets deadlines for the province to make payments and includes other important steps like issuing a public apology in the Manitoba legislature.
It also sets out how and when class members are to get their payments from the settlement fund. It was said that it may be possible that a person is a member of more than one class and entitled to compensation from more than one class action.
The agreement was said to have support from the Assembly of Manitoba Chiefs (AMC), Southern Chiefs’ Organization, Manitoba Keewatinowi Okimakanak and many other CFS groups.
There is a 31-day appeal period from the date of the approval. The claim registration period will begin on Jan. 6, 2025, if there are no appeals and will remain open for two years. Exchange Solutions Inc. was appointed the claims administrator for the Flette and Lavallee actions.
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