Category Archives: Kings2_2018

“Give us back our respect”: A class action suit is filed on behalf of Indigenous day-school students

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“Hearing the stories of suffering from the elderly of my band, I started to wonder why someone would want to be an Aboriginal,” said Mariette Buckshot from Kitigan Zibi, Quebec. She grew up conflicted about her identity and believes that the “Indian day schools” have a lot to do with it.

“Everybody hates our language, hates the way we look,” she recalls. “I didn’t want to be a part of that world. I wanted to be accepted socially.”

A class-action lawsuit filed on behalf of Indigenous students from Quebec who attended government-funded day schools alleges that they were “stripped” from their aboriginal identity and denied the “ability to pass on their heritage”. The legal team appraises that there are between 120,000 and 140,000 living day school survivors in Canada.


The reserve of Kitigan Zibi, Quebec, is located one hour 30 minutes north of the Canadian capital, Ottawa.

“The physical and sexual abuse, pain and distress, and the damages to language, learning, culture, and heritage,” said the filing, “were also suffered by students who were forced to attend Indian Day Schools, their descendants, and their communities.”

Allegations against the federal government contained in the lawsuit’s statement of claim have yet to be proven in court. Emailed requests to the federal government went unanswered. It has to file a statement of defense.

The lawsuit goes hand in hand with a Canada-wide class action certified last month also linked to government-funded day schools. The lawyers filed a Quebec affiliation since the legislation differs from the rest of the country.

Hopes of a harmless settlement

Mariette Buckshot, one of the two main plaintiffs of the case, hoped Canada would settle without having to go to the Supreme Court. Her father attended the Maniwaki day school from first to third grade and dropped out in fourth grade.

The Attorney General contested the class action on June 4, meaning the case is most likely going to be ruled in Court. “We wish the result will be a settlement that we, First Nations, consider favourable to all the victims,” said the plaintiff.

Patricia Doyle-Bedwell, a professor of aboriginal studies at Dalhousie University, agrees.

“I hope that the Crown doesn’t prolong the case, that they read the history, recognize the survivors’ experiences, and provide a settlement that is sufficient,” after the long process that was the Truth and Reconciliation Commission. She believes that the Crown contested the case for financial reasons, since it already spent a lot with the residential schools’ settlement.

Ex-Prime Minister Stephen Harper with Terry Audla, president of the national Inuit group Inuit Tapiriit Kanatami, and Perry Bellegarde, national chief of the Assembly of First Nations, during the closing ceremony of the Truth and Reconciliation Commission on June 3, 2015. Source: AMMSA

The Indian Residential Schools Settlement Agreement is the largest class-action settlement in Canadian history. More than $five billion were paid to residential school survivors.

That previous win may be beneficial to the First Nations fighting for justice against the day school system, according to Doyle-Bedwell. “It will be harder for the Crown to prove that they didn’t suffer as much as the Indigenous people who attended residential schools, because the experiences are very similar.”

The Crown is most likely going to distinguish the two cases by saying that the kids got to go home every night, said the law professor, or argue that the bands were pushing to get schools within the community. “But, these are not valid arguments because the harm still happened. There was a breach of the government’s fiduciary responsibility, just like in the residential schools’ case.”

“The scholars in Indian day schools experienced a similar disconnection to their family and culture as the residential scholars, since their teachers repeatedly called them heathens, pagans and savages,” said Patricia Doyle-Bedwell. Source: Archives Deschâtelets

Passing on a hurtful heritage

“My dad is 86 years old and was victimized on the reserve day school,” confides Mariette Buckshot. “It impacted him in a way where he quit school when he was only in grade four. He didn’t want anymore to do with education.” Later on, when he had kids, he insisted that they go to school while keeping their knowledge of the language and their culture.

The bands can’t overcome such a past in one generation, though. The teachers, which were most of the times nuns and fathers, kept telling the students that they were “heathens, pagans, savages and that their parents would go to hell,” says Doyle-Bedwell. “These things really cut at the heart of our identity and who we are as Indigenous people.”

When asked about what would help the healing of the First Nations, Mariette Buckshot is resolute. “Through apologies, payments and programs that go towards the healing of our people.”

“Give us back our respect. We still exist and are resilient enough to still be vocal.”

Contaminated surgical devices subject of class-action lawsuit

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Contaminated surgical devices subject of class-action lawsuit

By Colin Slark

A class-action lawsuit in the Superior Court of Ontario is in the works against the manufacturer of medical heater-cooler machines. The machines, made by the Sorin Group, maintain blood temperature for patients undergoing open heart surgery. Some machines were found to be contaminated with a form of potentially harmful non-tuberculous mycobacteria (NTM) that can lead to fatal infections.

Health Canada issued a warning on October 21, 2016 stating that heater-cooler devices of several makes and models were being investigated for links to NTM. The report says that NTM infection could appear “… months to years after cardiothoracic surgery.”

On February 17, 2017, Health Canada issued another alert specifically listing Sorin 3T devices manufactured before Sept. 2014 at Sorin’s Munich, Germany factory as being “at an increased risk of contamination with Mycobacterium chimaera.” 

Health Canada says NTM are “… typically not harmful but in rare cases, they can cause infections in very ill patients, including those with compromised immune systems, and chronic diseases or health conditions.”

The Special Pathogens Laboratory (SPL) of Pittsburgh, Pennsylvania, that specialize in testing for waterborne pathogens, tested 89 Sorin 3T machines in the United States and Canada for NTM between June 2015 and December 2016. 33 out of 89 machines, or 37 per cent, tested positive for NTM.

With heater-cooler machines, the patient’s blood is circulated through temperature-controlled water tanks during surgery to keep warm. On some machines, these tanks were contaminated with NTM.

According to Jack Rihs, vice-president of laboratory services at SPL and author of the lab’s report on the tests on Sorin 3T devices, the machines’ fans were aerosolizing the contaminated water and spreading through the operating room.

“It was never intended for the water in these instruments to come in contact with the patient at all,” says Rihs, Rihs also says that other types bacteria were found in the water in 3T devices, but those have not been linked to cases of illness.

Sorin Group Deutschland GMBH, the devices’ manufacturer and LivaNova Canada, the Canadian branch of the company that owns Sorin are named as defendants in the suit. Law firms Flaherty McCarthy LLP and Waddell Phillips P.C., both located in Toronto, are representing the plaintiffs.

Speaking on behalf of Flaherty McCarthy LLP, Candace Mak says “When (Sorin) realized something was going on, our allegation is that they still didn’t deal with that situation.”

According to the Statement of Claim filed by the plaintiffs’ counsel and a 2015 United States Food and Drug Administration letter, LivaNova was first made aware of NTM infections following open heart procedures where Sorin 3T machines were used in 2014. LivaNova issued a recall for the 3T machines in June 2015.

In the most recent Statement of Claim, the plaintiffs are listed as looking for over $750 million in damages for past and future costs associated with NTM infection. The bacteria can lie dormant for some time before an illness manifests.

LivaNova and Sorin have yet to respond with a Statement of Defence. A request to LivaNova for comment was not answered by production time.

The class action suit was first filed on July 19, 2017 and is waiting until May of 2019 to see if it will be officially certified. On April 18, 2018, the suit was approved for funding by the Ontario Class Proceedings Fund, which helps those normally unable to afford joining a class action lawsuit the ability to join in exchange for the law firms representing the plaintiffs receiving a portion of the judgement.

Class action lawsuits are also being brought against LivaNova by patients in the United States, and by certain patients of the Montreal Heart Institute in Quebec. Allegations from the Statement of Claim have yet to be proven in court.