A judge in Saskatoon heard several hours of arguments on Wednesday as to why a past claim on behalf of survivors of the Ile a la Crosse boarding school should be stayed.
The courtroom was full of survivors and supporters in orange shirts observing the court proceedings.
To provide history on the legal matter; In 2005, the Merchant Law Group filed what is known as the Aubichon action on behalf of survivors.
That claim would not move forward for several years and was never officially certified. So last year, survivors filed a new action with the Wandell Phillips law firm known as the Gardiner action.
When the Gardiner claim was announced lawyers from the Wandell Phillips law firm indicated their desire to seek a stay of proceedings of the Aubichon claim.
However, Tony Merchant and the Merchant Law Group are opposing a stay of proceedings on the Aubichon action.
This was the subject of several hours of argument at court.
Legal team for the Gardiner action provide arguments
Margaret Wandell of Wandell Phillips argued the Aubichon action from Merchant Law Group had not moved forward for several years and that the Merchant Law Group was not adequately representing the interests of its plaintiffs.
Wandell says 25 former plaintiffs with the Merchant Law Group discontinued their action and only 4 surviving members are part of the action. She says, of those four, three can’t be located. The other was described by lawyers for Wandell Phillips as a “passive” member who receives instructions from the Merchant Law Group.
“Who is instructing Merchant Law Group to oppose this stay of proceedings,” Margaret Wandell would ask the court.
She then pointed to the survivors in the room.
“These people have been languishing for 17 years without anything happening.”
Tony Merchant responds
Tony Merchant of the Merchant Law Group argued that he had no legal obligation to drop his lawsuit and suggested to the court that both the Aubichon and Gardiner action could proceed simultaneously.
Merchant asserted that claims that his law firm was not cooperating with survivors was incorrect. He would point to the Merchant Law Group’s work on the Timber Bay boarding school lawsuit as a tactical measure in favour of the Ile a la Crosse claim. He also says the file stagnated because the province refused to agree to any settlement and the federal government would only move forward with the province on board.
Merchant then argued that he wasn’t obligated to inform plaintiffs of his actions or to get instructions from them as to how to proceed in the lawsuit. However, Justice Naheed Bardai seemed to disagree with this assertion.
Merchant also claimed the family of survivors represented in the Aubichon claim who have since passed away would not receive any settlement if the Gardiner Claim is the only file to move forward.
“Doesn’t it concern you that this is the pace we are moving,” responded Justice Bardai when Merchant commented that half of the plaintiffs in the original suit had passed away.
Margaret Waddell argued that the Gardiner claim could include estate claims from the Aubichon action through a simple amendment.
Concern over authority to stay a proceeding under another judge
One of the main concerns for Justice Naheed Bardai was if he has the authority to provide a stay of proceedings on a matter where another judge was assigned. Lawyers tried to provide legal examples as to why he could or could not do this, but there was no settled law on the matter.
Legal representation for the provincial and federal governments were also present in court. Lawyers from the Government of Canada indicated they had no position on the matter. A lawyer for the province spoke on the Government of Saskatchewan’s concern over defending against two class action lawsuits. The province’s legal representation also took issue with Merchant blaming the province for the original lawsuit’s stagnation.
At the end of the hearing, Justice Bardai reserved his decision to a later date.
(PHOTO – survivors Louis Gardiner and Duane Favel speak with reporters following the hearing. Photo by Joel Willick)
“Frustrating” – survivors comment on the hearing
Outside court, some members of the Gardiner action provided their thoughts on what happened in court.
“We are losing survivors on a daily basis, so there is a lot of stress in getting this done in a good way,” said Ile a la Crosse Mayor Duane Favel, who is named on the Gardiner claim as an inter-generational survivor. “We are happy that today is the first step in getting there.”
Favel says he has been apart of the survivors committee since 2005 and says he has never once spoken with Tony Merchant or anyone from the Merchant Law Group.
“We’ve invited Merchant to come and have a conversation with us several times and he never came to the table to talk to the people he is supposedly representing and that is frustrating.”
A common sentiment from the survivors who spoke outside the court room was to have this matter taken care of as quickly as possible as survivors are passing away.
“A lot of our survivors are getting up there in age and just yesterday we buried one of our survivors back home,” said Louis Gardiner, who the action is named after. “These are things survivors are telling us – that we have to start moving on… we want action… we want closure.”