Canadian Lawyer

w w w . c a n a d i a n l a w y e r m a g . c o m O C T O B E R 2 0 1 8 33 enlisted Audrey Boctor, of IMK LLP in Mon- treal, to represent Quebec plaintiffs. There were many legal issues to overcome, says Boctor. When she heard the victims' stories, she knew something had to be done, "but legally speaking, historical abuse claims have a number of challenges. The first and obvious one being limitations . . . and the sec- ond are always considerations arising under the Crown Liability and Proceedings Act. In this case, we had to think how about how we would argue s. 9 of the act, which deals with when benefits are available under other gov- ernment programs, whether that's a complete bar to bring a proceeding like this." Despite the potential complications, the class actions were launched Oct. 31, 2016 in Ontario, with Ross as the representative plaintiff repre- sented by Elliott and in Quebec by Boctor with Roy as the representative plaintiff. "I actually called my contact in the Prime Minister's Office the night before we launched and I said, 'Time's up, we're launching a class action tomorrow,'" Elliott recounts. "And he was shocked. I said, 'We've been waiting too long.' And I said, 'I can tell you right now, I've heard many rumours that someone's going to sue, so it's not whether there's going to be a class action, it's who's going to be suing you.'" Elliott says they discovered three or four other actions against the military, mostly for gender discrimination with LGBT matters bolted on. "So, we had to reach out to all of these people and say, back off, leave the LGBT piece out," he says. "And we succeeded in doing that, because I had heard from the Department of Justice by then and they said, 'Look, unless you represent everyone, we will not negotiate with you.'" Another consideration was an action being launched by McKiggan, of McKiggan Hebert in Halifax. He was contacted seven years before by former members of the Armed Forces telling him stories of being forced out. He was aghast at learning what happened, but nothing went forward. Then, a couple of years ago, he was approached by other former service members, including Alida Satalic, who became the third representative plaintiff in the purge class action. Experienced in historical redress cases, McKig- gan looked at their claims with renewed vigour. He figured out a way forward. "I wanted to frame the claim as a breach of fiduciary duty because, at least here in Nova Scotia anyway, there's no limitation period for breach of fidu- ciary duty claims." Working with Kirk Baert at The LGBT purge class action settlement at a glance Settlement approved: June 22, 2018 in Federal Court of Canada by Justice Martine St-Louis Class members: All current or former members of the Canadian Armed Forces, current or former members of the RCMP and current or former employees of the Federal Public Service, who were alive as of Oct. 31, 2016 and faced threat of sanction, were investigated, were sanctioned or were discharged or released from the CAF or RCMP or were terminated or resigned from the FPS in connection with the LGBT purge by reason of their sexual orientation, gender identity or gender expression between Dec. 1, 1955 and June 20, 1996. Value of settlement: Between $85 million and $145 million depending on the number of people who come forward with viable claims. Three areas of settlement: 1. Compensation a. The range of individual compensation for most class members will be between $5,000 and $50,000. Class members who experienced exceptional harm such as PTSD or who were sexually assaulted may be eligible for additional amounts. The government will provide a minimum of $50 million up to $110 million to compensate eligible class members. Former SCC justice Marie DesChamps will adjudicate exceptional harm claims. b. Compensation Levels: Level Compensation amount 1 Investigation and / or sanction – Level 1 $5,000-$7,500 2 Investigation and / or sanction – Level 2 $20,000-$25,000 3 Discharge or termination $50,000 Plus, if applicable, one of: 4A Exceptional psychological harm Up to $60,000 4B Exceptional harm, including from physical and/or sexual assault Up to $125,000 2. Reconciliation and memorialization measures a. A fund of a minimum $15 million to provide for: i. The creation of a monument in the National Capital Region ii. The creation of a permanent and/or travelling exhibition by the Canadian Museum for Human Rights on the stories and oral histories of the class members. iii. Government of Canada will make non-personal, historical records related to the LGBT purge accessible. iv. Educational component: Diversity training for federal employees. 3. Individual reconciliation and recognition measures a. Canada Pride Citation (military honour) and letter of apology from the chief of the defence staff, commissioner of the RCMP or clerk of the Privy Council. i. These will also be available to the families, including spouses and conjugal partners, of those who would be members of the class if they had not died before Oct. 31, 2016. b. Government will work to set up a process for class members to have access to certain individual records if they still exist. c. Any living class members will be entitled to request a notation on their personnel record that they were not unfit for service because of their sexuality and the purge policy was wrong. Fees for counsel: Class counsel fees of $15 million inclusive, plus applicable tax, will be paid directly by Canada. Claimants who seek counsel's assistance will not be charged for this work. Claim period: Oct. 25, 2018 to April 25, 2019. Details at: www.lgbtpurgesettlement.com.

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