Date: 20240402

Docket: T-2158-16

Citation: 2024 FC 505

Ottawa, Ontario, April 2, 2024

PRESENT: Madam Justice McDonald

PROPOSED CLASS PROCEEDING

BETWEEN:

MARC FRENETTE,

WALLACE FOWLER AND

JEAN-PIERRE ROBILLARD

Plaintiffs

and

ATTORNEY GENERAL OF CANADA

Defendant

ORDER AND REASONS

[1] On this Motion, the parties seek Court approval of a Notice Plan intended to communicate the proposed settlement of this class proceeding to potential class members.

[2] This class proceeding relates to racial discrimination and racial harassment within the Canadian Armed Forces (CAF). The parties have agreed to the terms of a proposed settlement of this class proceeding and must now communicate the terms of that settlement to individuals who would be covered by the proposed class member definition.

I. Relevant Background

[3] The Statement of Claim was filed on December 14, 2016. The parties have been engaged in settlement discussions and on August 29, 2019, they reached the framework of an agreement to settle this proceeding. The final terms of the Settlement Agreement are still being finalized.

[4] The Settlement Agreement proposes the following definition as “Class Members”:

All persons who are or who have been enrolled as CAF Members at any time from April 17, 1985, and for any duration up to and including the Approval Date, and who assert that they have been subjected to Racial Discrimination and/or Racial Harassment.

[5] The proposed settlement includes individual compensation for class members (Monetary Assessment Scheme) as well as internal CAF measures (Systemic Relief Measures) designed to address and correct internal systemic issues.

[6] Pursuant to Rules 334.34 and 334.37 of the Federal Court Rules, SOR/98-106 [Rules] the Court must approve the plan for disseminating notice to potential class members of the proposed settlement. The parties propose a notice program that includes Short Form Notice and a Long Form Notice [Notice Plan] to provide the necessary notice to the class members, including:

• (a)the terms of the proposed settlement of this proceeding;

• (b)the hearing dates for the Motion to certify the proceeding as a class proceeding, to determine if the proposed settlement is fair, reasonable, and in the best interests of the class, and, to approve Class Counsel fees [Settlement Approval Motion]; and

• (c)the July 16 and 17, 2024 hearing dates for the Settlement Approval Motion.

II. Relief sought on this Motion

[7] The Plaintiffs, with the Defendant’s consent, request an Order:

• (a)to approve the form and contents of the Notice Forms; and

• (b)to approve the Notice Plan.

[8] In support of this Motion, Class Counsel filed the Affidavit of Lydia S. Bugden, K.C. affirmed on March 12, 2024. Ms. Bugden is the Chief Executive Officer and Managing Partner of Stewart McKelvey, who are Class Counsel on this matter.

III. Analysis

[9] The Notice requirement is outlined in Rule 334.34 and Rule 334.37 as follows:

[10] The notice stage is indispensable as it informs class members about their rights, particularly the possibility of opting out, and sometimes about the settlement of a case (Canada Post Corp v Lépine, 2009 SCC 16 at para 42; Wenham v Canada (Attorney General), 2019 FC 383 at paras 10-11).

[11] The content of the notice must be “sufficiently transparent, informative and adequate disclosure” so that class members can make a well-informed decision about whether to support, opt-out or object to the Settlement Agreement (Lin v Airbnb, Inc, 2021 FC 1260 at paras 54 and 55 [Airbnb]).

[12] Here, the Notice Plan advises of the total settlement amount of $150 million. It explains the range of settlement funds available for individual payments for each class member as being between $5,000 to a maximum of $35,000. It addresses the potential of a pro rata decrease or increase in the individual payments depending upon the size of the class.

[13] Legal fees for Class Counsel are proposed at $5 million plus disbursements and tax. Legal fees will be paid separately and will not be deducted from the $150 million settlement funds. This is an important feature of the proposed settlement as legal fees will not deplete the settlement funds available to class members.

[14] The Short Form Notice has a “Legal Rights and Options” section which includes the options to Class Members: (1) do nothing; (2) opt out; (3) submit a statement of support; (4) object to the proposed settlement; or (5) participate at the settlement hearing. The Long Form Notice contains the same information with additional detail on these rights and options.

[15] The Plaintiffs and Defendant share responsibilities to disseminate Notices. The Defendant will oversee delivery of the proposed Notice Forms to existing Class Members of the CAF and recipients of Veterans Affairs Canada benefits via social media, intranet, accounts websites, and mobile applications. Class Counsel will post the Notice Forms to their website, deliver them to all known Class Members, deliver them to multiple veterans’ organizations and arrange for publication of the Short Form Notice in three veterans’ publications.

[16] Class Counsel has retained a public relations firm, NATIONAL, to facilitate creating a dedicated website, issue media releases and leverage earned media opportunities, and conduct targeted advertising and digital newspaper advertising in English and French.

[17] I find the proposed Notice Plan accomplishes the overarching purpose of notice, which is to ensure Class Members understand their rights and options and will be able to make informed decisions about what to do regarding the settlement approval process.

[18] Accordingly, I will grant this Motion on the terms requested by the parties.

 

ORDER IN T-2158-16

THIS COURT ORDERS that:

1. The short and long form notices of the Settlement Approval hearing are hereby approved in the forms attached respectively at Schedule A and Schedule B to this Order (the “Notice Forms”), subject to the right of the parties to make non-material amendments as may be necessary or appropriate.

2. The parties shall arrange for translation of the Notice Forms into French, prior to distribution.

3. The parties shall distribute the Notices in accordance with the “Notice Plan” attached at Schedule C to this Order, and shall do so by no later than May 1, 2024.

4. The Notice Plan satisfies the requirements of Rules 334.34, 334.35, 334.36 and 334.37 of the Federal Courts Rules and shall constitute good and sufficient notice to Class Members about the Settlement Approval hearing.

5. The parties shall have the right to make non-material amendments to the Notice Plan as may be necessary or appropriate.

6. If a Class Member wishes to participate at the Settlement Approval hearing, either to support or object to the proposed settlement and/or the amount of Class Counsel fees and disbursements, the Class Member shall complete a “Participation Form” substantially in the form attached at Schedule D to this Order.The Class Member shall deliver the completed Participation Form to Class Counsel by mail, courier or email according to the contact information indicated on the Participation Form, and ensure that Class Counsel receive the Participation Form by no later than June 27, 2024 (the “Participation Deadline”).

7. At the Settlement Approval hearing, the Court shall not consider, without leave, any Participation Forms received by Class Counsel after the Participation Deadline.

8. Class Counsel shall serve on the Defendant and file, by July 5, 2024, an affidavit including copies of all Participation Forms received by Class Counsel by the Participation Deadline.

blank	"Ann Marie McDonald"
blank	Judge

 

 

 

 

 

 

 

 

 

 

 

 

 

FEDERAL COURT

SOLICITORS OF RECORD

	DOCKET:	T-2158-16
STYLE OF CAUSE:		FRENETTE ET AL V ATTORNEY GENERAL OF CANADA
PLACE OF HEARING:		Halifax, Nova Scotia
DATE OF HEARING:		March 20, 2024
ORDER AND REASONS:		McDonald J.
DATED:		April 2, 2024

APPEARANCES:

Scott R. Campbell Christopher W. Madill	FOR THE PLAINTIFFS
Angela Green Victor Ryan	FOR THE DEFENDANT

SOLICITORS OF RECORD:

STEWART McKELVEY Halifax, Nova Scotia	FOR THE PLAINTIFFS
Attorney General of Canada Halifax, Nova Scotia	FOR THE DEFENDANT