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ABORIGINAL STATUS AND RIGHTS - Civil actions and liabilities - Historical grievances - Residential schools - Settlements

Tuesday, February 20, 2018 @ 8:34 AM  


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Application for direction by the defendant Attorney General of Canada (Canada). For more than a century, indigenous children were removed from their families and educated in Indian Residential Schools. The result was generations of indigenous youth growing up away from their families and culture, and many suffering sexual and other forms of abuse. Between December 2006 and January 2007, the Courts issued orders approving the Indian Residential Schools Settlement Agreement (IRSSA). In March 2007, the Courts issued orders implementing the IRSSA. The Individual Assessment Process (IAP) was a post-settlement claims adjudication process and the means for claimants to seek compensation for claims of abuse or other wrongful acts. Following determination of a claim, a party could seek a review and a further review, known as a re-review, on limited grounds. Both levels of review were conducted by adjudicators. Canada was seeking interpretative guidance as to whether the IAP contained an implied term of procedural fairness that would allow IAP claims to be re-opened in certain circumstances. The request for direction came in response to conflicting review and re-review decisions by the Chief Adjudicator and his designates on whether they had jurisdiction to order a new hearing on the ground that there was a denial of procedural fairness where new evidence became available following dismissal of the claim. The Chief Adjudicator took the position that applying principles of procedural fairness to the IAP was consistent with the Court’s jurisprudence, the rulings of numerous IAP adjudicators, and the purpose of the IRSSA. The St Anne’s IAP claimants and the Assembly of First Nations opposed Canada’s request for direction.

HELD: Application allowed. The Court had jurisdiction to provide the kind of prospective direction sought in this case. The IAP’s express terms mandated a number of procedural protections, but the presence of those protections did not somehow invoke the full panoply of rights that compiled procedural fairness as comprehended in administrative law. The parties contracted for individual claims to be determined despite any student-on-student admissions or progressive disclosure made subsequently. The Chief Adjudicator and his designates erred in implying a term into the IRSSA for which the parties did not contract. They had effectively amended the IRSSA and had undermined the finality of the determination of individual IAP claims.

Fontaine v. Canada (Attorney General), [2018] B.C.J. No. 55, British Columbia Supreme Court, B. Brown J., January 17, 2018. Digest No. TLD-Feb192018003