Using Class Actions to Redress Historical Wrongs Committed by the Government

The author argues that in many circumstances class actions can be an effective tool to redress historical wrongs committed by the Canadian government. First, a historical wrong’s suitability to be brought as a class proceeding must be assessed on the basis of whether the action meets the stated aims of judicial economy, access to justice, and behaviour modification, as well as through an analysis of other pragmatic issues. Like the majority of class actions, those for historical wrongs generally result in a settlement. Next, an examination of these settlements reveals that they can be understood to offer appropriate redress for historical wrongs when viewed through a reconciliatory, not a restorative, lens. Rather than claiming that monetary compensation restores the status quo, the reconciliatory perspective of class action settlements, exemplified by the Indian Residential School Settlement Agreement, views them as a means to establish trust and respect between perpetrator and victim. Finally, class actions also play an important role where the government is reluctant or unwilling to settle. In this situation, a class action provides victims with the best hope of redress. Essentially, class actions provide marginalized groups that have suffered historical wrongs with an instrumental and often necessary tool to seek compensation from the government.