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ABORIGINAL STATUS AND RIGHTS - Civil actions and liabilities - Historical grievances

Thursday, August 13, 2020 @ 6:00 AM  

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Appeal by the plaintiff from a decision of a supervising judge under the Indian Residential Schools Settlement Agreement declining to intervene in a decision denying the appellant compensation for alleged sexual assault. The appellant lived on the premises of a residential school with her family since her father worked at the school. The appellant was not registered as a student. The appellant between the ages of 16 and 17, and employee nine years older than her had sexual intercourse on numerous occasions on school property. The appellant brought a claim under the Independent Assessment Process of the Settlement Agreement based on the start of her relationship with the employee and the sexual contact that occurred while she was living on school premises. She argued that the relationship was exploitive. While the initial adjudicator awarded the appellant compensation, her claim was dismissed on review on the basis that the sexual activity was consensual and not compensable under the Settlement Agreement. The supervising judge held that she did not have jurisdiction to grant the relief sought. The judge was satisfied that the second reviewer turned his mind to the provisions of the Independent Assessment Process Model applicable to the appellant’s claim and concluded that the non‑student or non‑resident compensation criteria for sexual assault did not encompass consensual sexual activity.

HELD: Appeal dismissed. The supervising judge correctly held there was no jurisdiction for her to interfere with the decision of the second reviewer. To the extent that the determination involved an interpretation of the compensable claims criteria for sexual assault committed by an adult on a non‑student or non‑resident, the appellant had not demonstrated that the judge committed palpable and overriding error. The supervising judge determined that the Independent Assessment Process decision makers properly construed the meaning of the term “sexual assault”. Proof of sexual assault committed against a non‑student or non‑resident under the Independent Assessment Process required a claimant to establish more than a sexual act and must also prove that the sexual act was wrongful.

D.G. v. Canada (Attorney General), [2020] B.C.J. No. 1111, British Columbia Court of Appeal, S.D. Frankel, P. Abrioux and J. DeWitt-Van Oosten JJ.A., July 10, 2020. Digest No. TLD-August102020008