June 28, 2018
Chamberland, Hogue, Roy
Appeal from a judgment of the Superior Court authorizing the institution of a class action. Dismissed.
The respondent was authorized to institute a class action on behalf of 45,000 people who were deprived of their Indian status between 1985 and 2011 because of provisions set out in the Indian Act (R.S.C. 1985, c. I-5) that the government knew were discriminatory.
It is erroneous to claim that the trial judge authorized the class action on the basis of mere legal characterizations in the absence of any allegation of fact whatsoever or that she shifted the burden of proof by requiring the appellant to establish the absence of bad faith on the part of the federal government. It is true, however, that the respondent’s evidence is tenuous. While the evidence is probably insufficient to conclude that the federal Crown acted in bad faith, it surely constitutes a first step in establishing the respondent’s claim. In this respect, the particular nature of the remedy and what the respondent is required to demonstrate to counter the relative immunity of the federal Crown in matters of legislation must be noted. The evidence is complex, and its historical and political aspects must be considered. Part of this evidence, if it exists, is likely to be found in the hands of the government officials and politicians who worked on the bill at the relevant time. At this stage, it is difficult to fault the respondent for not providing stronger evidence in support of his allegations.
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