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ABORIGINAL STATUS AND RIGHTS - Historical grievances - Residential schools - Settlements

Friday, June 05, 2020 @ 9:12 AM  


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Appeal by the defendant lawyers from refusal to dismiss the action by the plaintiff as frivolous and vexatious and an abuse of process. The plaintiff was a class member of an Indian residential schools survivors’ class action. The Indian Residential Schools Settlement Agreement (IRSSA) established the Independent Assessment Process (IAP) for addressing claims and awarding compensation for abuse suffered by class members. The plaintiff retained the defendants in 2009 to bring an IAP claim on his behalf. The claim was initially dismissed due to reliability concerns with the supporting evidence. The plaintiff retained a new lawyer who obtained a new hearing that resulted in significant compensation for the repeated and serious abuse suffered by the plaintiff. In August 2017, the plaintiff sued the defendants and Canada for damages for breach of fiduciary duty and negligence associated with the disbelief and dismissal of his initial IAP claim. The lawyer defendants took the position that the plaintiff’s action was barred by the release in the IRSSA and moved for dismissal on the basis the action was frivolous and vexatious and an abuse of process. The motion judge refused the relief sought, as the release did not include causes of action that arose after its effective date and did not contemplate solicitor negligence claims. The lawyer defendants appealed.

HELD: Appeal dismissed. The motion judge correctly set out the principles for interpreting a release. The plaintiff’s claim against Canada was not a claim in relation to an Indian Residential School. It was a claim for psychological harm alleged to have occurred when his evidence was adjudged insufficiently reliable to meet the burden of proof in an alternative adjudicative process because of Canada’s alleged failure to satisfy its disclosure obligations under the IRSSA. As found by the motion judge, Canada’s compliance under the IRSSA was not encompassed by the release. As a corollary to that conclusion, the claim against the lawyer defendants was not barred by the release.

IAP Claimant H-15019 v. Wallbridge, [2020] O.J. No. 1874, Ontario Court of Appeal, J.M. Simmons, S.E. Pepall and G.T. Trotter JJ.A., April 28, 2020. Digest No. TLD-June12020010