Focus On

ABORIGINAL STATUS AND RIGHTS - Civil actions and liabilities - Historical grievances - Residential schools - Practice and procedure - Discovery - Evidence - Document retention and destruction - Settlements - Orders - Appeals

Tuesday, October 10, 2017 @ 8:37 AM  


Lexis Advance® Quicklaw®
Appeal from a judgment of the Ontario Court of Appeal substantially affirming a decision that records from a consolidated class action related to Indian Residential Schools should be destroyed following a 15-year retention period. From the 1860s to the 1990s, thousands of First Nations, Métis and Inuit children were victims of physical, emotional and sexual abuse while at residential schools. In the late 1990s and early 2000s, a number of individual and class actions were brought by survivors of residential schools. Class actions in nine provinces and territories were consolidated into a single action, which was settled by the Indian Residential Schools Settlement Agreement (2006) (IRSSA). Under the IRSSA, survivors of residential schools could seek compensation through the specially designed Independent Assessment Process (IAP). The IRSSA was a comprehensive settlement of the consolidated class action, and was the product of extensive negotiations among the plaintiffs and their representatives, the Government of Canada and various religious organizations which had operated these schools. The IAP process entailed disclosure by claimants of acutely sensitive particulars, both of the abuse suffered, and of its consequences, for examination by an adjudicator. This information was recorded in application forms, hearing transcripts, medical reports, reasons for decisions and other documents, copies of which were held by the Government of Canada. This appeal concerned the fate of the digital and physical records generated by this process. In particular, the Court had to determine whether the IAP documents should be destroyed, or retained and eventually archived at Library and Archives Canada. In response to requests for directions to the Ontario Superior Court of Justice from various parties to the IRSSA, the supervising judge found that these records had to be destroyed following a 15-year retention period during which individual IAP claimants could elect to have the records in their own file preserved. This order was substantially upheld by the majority of the Ontario Court of Appeal. The Attorney General of Canada now appealed that result.

HELD: Appeal dismissed. Supervising judges had administrative and supervisory jurisdiction over the implementation and administration of the IRSSA and could, among other things, hear requests for directions. If, therefore, the proper administration and implementation of the IRSSA necessitated direction on the handling of the IAP documents, supervising judges were empowered to give that direction. It followed, particularly given the nature of the IAP and the IAP documents, that the supervisory role in implementing the terms of the IRSSA included making directions regarding disposition of the IAP documents at the conclusion of the IAP. The supervising judge correctly found that he had authority to make orders as to the disposition of the IAP documents. In light of this conclusion, it was unnecessary to determine whether the IAP documents were under the control of a government institution. After an extensive review of the evidence submitted on the requests for directions, the supervising judge found that the negotiators of the IRSSA intended the IAP to be a confidential and private process, that claimants and alleged perpetrators relied on the confidentiality assurances and that, without such assurances, the IAP could not have functioned. These findings were not only free of palpable and overriding errors, they were simply inescapable in light of the evidence submitted. There was no reason to disturb the supervising judge’s finding that the IRSSA provided for the destruction of the IAP documents. Application of the Privacy Act to the IAP documents clearly ran counter to the principles of confidentiality and voluntariness upon which the IAP was founded. The supervising judge’s order, as varied by the majority of the Court of Appeal, was an appropriate exercise of his discretion. He had to strike a balance between competing concerns: preserving confidentiality and the need to memorialize and commemorate, all the while respecting the choice of survivors to share (or not share) their stories. The destruction of records that some claimants would have preferred to have preserved worked a lesser injustice than the disclosure of records that most expected never to be shared.

Canada (Attorney General) v. Fontaine, [2017] S.C.J. No. 47, Supreme Court of Canada, B. McLachlin C.J. and A. Karakatsanis, R. Wagner, C. Gascon, S. Côté, R. Brown and M. Rowe JJ., October 6, 2017. Digest No. TLD-October22017013SCC