Cloud v. The Attorney General of Canada

December 3, 2004

The plaintiffs, who were members of First Nations, sought to bring a class proceeding on behalf of former students of the Mohawk Institute Residential School in Brantford, Ontario. The plaintiffs sought damages for breach of fiduciary duty, negligence, assault, sexual assault, battery and breach of aboriginal rights. Two lower courts declined to certify the action as a class proceeding.

Kirk Baert successfully represented the former students at the Ontario Court of Appeal. The court unanimously found that certifying the action would greatly enhance access to justice by providing former students with the opportunity to tell their stories at a single trial. The Supreme Court of Canada denied the Federal Government’s request for leave to appeal. The case was ultimately settled in 2006 as part of the $3 billion pan-Canadian settlement of all Indian Residential Schools litigation in Canada.

Mr. Baert was lead counsel on the nine settlement approval motions heard by courts across the country in 2007. As of April 2009, close to 75,000 former students have filed claims and over $2 billion has been paid out. Other courts have subsequently referred to the Cloud decision as “a change in the legal landscape”.

Cloud v. The Attorney General of Canada (2004), 73 O.R. (3d) 401 (Ont. C.A.)

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