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ABORIGINAL STATUS AND RIGHTS - Civil actions and liabilities - Residential schools

Monday, August 19, 2019 @ 9:30 AM  

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Appeal by the plaintiff from a decision by a supervising judge refusing to interfere with decisions upholding an adjudicator’s decision dismissing the appellant’s claim for compensation under the Indian Residential Schools Settlement Agreement. The appellant alleged that several male students sexually assaulted her on a school bus after it returned from a hockey game and the driver had left. The adjudicator found the driver returned immediately upon being called. While the adjudicator accepted that the appellant was assaulted by the students, the adjudicator did not find that the bus driver took no reasonable steps to prevent the assault. He concluded that reasonable steps did not require constant or absolute supervision and that in this case, there was a reasonable level of supervision in that there was an adult bus driver who was for that time responsible for the children. The decision was reviewed by two other adjudicators and confirmed. The appellant argued that the supervising judge erred by upholding findings of fact that were unsupported by the evidence and by misapplying the test for judicial recourse in relation to such findings.

HELD: Appeal dismissed. On the question of the supervising judge’s jurisdiction, the judge made no error based on the jurisprudence available to her at the time. Her conclusion that there was no basis to intervene was entitled to deference. Despite the misapprehension of some of the evidence by the initial adjudicator, the findings that the assault occurred quickly, and the bus driver returned quickly, whether he was in earshot, were supported by the evidence. The adjudicator did not err in finding that admissions that the staff knew of sexual activities among students at various locations on the school grounds were irrelevant to whether the school took reasonable steps to prevent the assault on a school bus.

Fontaine v. Canada (Attorney General), [2019] B.C.J. No. 1245, British Columbia Court of Appeal, M.V. Newbury, N.J. Garson and B. Fisher JJ.A., July 5, 2019. Digest No. TLD-August19019002