Focus On

Aboriginal Law - Aboriginal status and rights - Civil actions and liabilities - Historical grievances - Residential schools - Practice and procedure - Settlements

Thursday, February 09, 2017 @ 7:00 PM  


Appeal by the federal Crown and cross-appeal by MF from a judicial ruling with respect to the Indian Residential School Settlement Agreement (IRSSA). The IRSSA provided compensation to the victims of residential schools. A Common Experience Payment was immediately available to all eligible class members. An Independent Assessment Process (IAP) provided additional compensation to claimants who established serious physical or sexual abuse or psychological harm at a residential school. MF was a non-resident, non-student claimant who made a claim through the IAP. He alleged he was sexually abused by a priest while working as an altar boy at a residential school. The claim was rejected by an adjudicator, a review adjudicator and a re-review adjudicator. Each adjudicator concluded that MF was not an eligible claimant. MF brought a Request for Directions (RFD) pursuant to the IRSSA’s Court Administration Protocol challenging the rejection of his claim. Prior to the hearing, the Crown discovered and disclosed two new documents that supported MF’s position. MF refused to consent to an order that would remit his claim for reconsideration and the RFD proceeded. The administrative judge concluded that, apart from the newly discovered evidence, MF was entitled to compensation. The judge ruled he was entitled to quantify the award and determine the appropriate quantum of MF’s IAP costs. The Crown appealed on the basis the judge erred in interfering with the factual findings of the IAP adjudicators, by quantifying MF’s claim, and in assuming jurisdiction over the claim. MF cross-appealed, seeking a declaration the Crown breached its IAP document disclosure obligations.

HELD: Appeal allowed and cross-appeal dismissed. The Schachter case established that judicial recourse in respect of IAP decisions was limited to very exceptional circumstances. The IAP was a comprehensive claim resolution regime presided over by trained and experienced adjudicators. Allowing appeals or judicial review seriously compromised the finality of the IAP, and failed to pay appropriate heed to its distinctive nature and the expertise of its adjudicators. The administrative judge exceeded the limits of his authority imposed by Schachter. The judge undertook a full appeal by engaging in a detailed review of the law and facts, effectively assuming the role of an IAP review adjudicator. The decision by the re-review adjudicator was not so unreasonable or exceptionally wrong that it amounted to a failure to enforce the IRSSA or apply the IAP. With respect to remedy, given the limited jurisdiction of the administrative judge, it was erroneous to make his own determination of MF’s claim rather than remit it for reconsideration. Nor was the judge entitled to depart from the IAP model to determine compensation and costs. The administrative judge did not err in finding the Crown did not breach its disclosure obligations, as the documents at issue had been listed and available upon request.