Lawyer fees approved in ’60s Scoop class action; deal struck to allow payouts

TORONTO — An Ontario justice who raised flags over the $75 million the federal government agreed to pay the lawyers who successfully pursued the ’60s Scoop class action has approved the arrangement despite his misgivings.

The legal fees, which the government is paying separately from the compensation to the survivors, became a flashpoint earlier this year when Ontario Superior Court Justice Edward Belobaba said they were far too high.

Beyond the amount of the fees, Belobaba was particularly upset a group of lawyers who had acted for Scoop victims in Federal Court were pocketing half the total even though they had done comparatively little work toward the settlement.

Belobaba has now, albeit reluctantly, signed off on his end.

Given that a Federal Court judge approved the fee arrangement for the lawyers in that court, Belobaba said it would be “unfair in the extreme” to award anything less to the two lawyers who spent the better part of a decade in Superior Court fighting for the Indigenous victims.

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“I cannot in good conscience limit class counsel in (the Ontario action), who truly deserve many millions more than class counsel in (the federal action),” Belobaba said, adding he didn’t understand why the Federal Court had acted as it did.

That means Jeffery Wilson and Morris Cooper, who sued on behalf of Scoop victims for the loss of their cultural heritage, will get their $37.5-million share — half the fee total.

Cooper said on Monday he was pleased with the ruling and that Belobaba had been “clearly very complimentary of our efforts.”

Separately, the last legal hurdle holding up payouts to the victims was also cleared with a deal over who pays for a failed appeal against the class-action settlement, documents show.

The deal lets the lawyers off the hook for the costs of their unsuccessful effort on behalf of a small group unhappy with the $750-million settlement. In exchange, they have agreed to take no further steps to challenge the settlement or otherwise hold up its implementation.

Earlier this month, the Federal Court of Appeal rejected the proposed appeal fronted by lawyer Jai Singh Sheikhupura with Vancouver-based Watson Goepel, which had been shut out of the $75 million awarded to the lawyers. Judge John Laskin decided evidence the applicants had filed in support was “inadequate in the extreme.”

While it is normal in litigation for the losing party to cover the legal costs incurred by the winners, the winning lawyers in this case took the unusual step of seeking costs personally from Sheikhupura given the serious misconduct allegations he and one of his clients had made against them. Laskin rejected the accusations as unfounded and asked for submissions on the costs issue.

The documents seen by The Canadian Press show the dispute has now been settled with both sides pulling back.

“The applicants’ solicitors will not seek to appeal nor seek leave to appeal the decision rendered by the Federal Court of Appeal in this matter on Nov. 8, 2018, or any other decision made in connection with the ’60s Scoop settlement agreement,” the deal states. “Counsel for the respondents will not seek costs against the applicants’ solicitors.”

Sheikhupura did not respond to a request for comment.

Kirk Baert, with one of the three law firms waiting to collect $37.5 million as their share of the class-action fees, said the parties advised Laskin on Monday of the costs agreement.

The federal government had warned it would not proceed with payouts to Scoop survivors — each stands to get as much as $50,000 — until the legal squabbling had ended. The parties to the new deal have now made it explicit their dispute is done.

“They will not take any further steps of any kind whatsoever to delay implementation of the settlement,” the agreement states.

The request to appeal the class-action agreement finalized over the summer rather than opt out — fewer than a dozen class members did so — came from 11 claimants who said they were Scoop victims, although two dropped out of the proceeding.

Among other things, they alleged they were excluded from the process that led to court approval of the long-fought settlement for the harms done when they, as children, were taken from their Indigenous families and placed with non-Indigenous ones. They also expressed unhappiness over the fees awarded to the lawyers who negotiated the deal.

Laskin rejected their arguments.

Colin Perkel, The Canadian Press