Focus On

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

Wednesday, December 12, 2018 @ 9:11 AM  


Lexis Advance® Quicklaw®
Application by Independent Counsel for directions relating to the Indian Residential Schools Settlement Agreement (IRSSA). Between the 1860s and 1990s, more than 150,000 First Nations, Inuit and Métis children were required to attend Indian Residential Schools operated by religious organizations with the funding of Canada. The operators of the schools kidnapped, brainwashed, physically assaulted, sexually assaulted, ethnically and culturally cleansed, and otherwise mistreated the students. Approximately 18,000 individual actions by former students and numerous class actions were commenced against Canada and the churches that operated the schools. In May 2006, the IRSSA was signed. It was a product of the settlement of thousands of the individual actions and numerous class actions. In June 2013, the National Centre for Truth and Reconciliation (Centre) was formally established. In 2015, the Truth and Reconciliation Commission’s mandate expired, and all of its documents were transferred to the Centre. Independent Counsel was seeking directions about what privacy protections applied to the Centre in its treatment of documents and records it received from the Commission. Independent Counsel requested an order imposing conditions on the use that could be made of materials and information transferred to the Centre. One condition sought was to make the materials and information subject to privacy protection. Another condition sought was to anonymize information that could be used to identify individuals. Independent Counsel submitted that on an ongoing basis the Centre was mismanaging and breaching the privacy provisions of the IRSSA to the detriment of the survivors of the schools. The Centre denied any breach of the IRSSA and submitted that the order requested by Independent Counsel was contrary to the IRSSA. Canada agreed with the Centre and opposed the request of Independent Counsel. Canada took the position that the matters raised by Independent Counsel were outside the Court’s supervisory jurisdiction. Canada also submitted that a request for directions decision was unwarranted. The Assembly of First Nations took a neutral position in responding to the request for directions.

HELD: Application dismissed. The Court had supervisory jurisdiction to ensure the class members were gaining the full benefits of the IRSSA and to ensure the proper administration and implementation of the IRSSA. However, no substantial orders or directions were necessary. There had been no material breach of the IRSSA. The provisions of the IRSSA and the existing legal instruments that governed the Centre’s operation were adequate and reached the appropriate balance between truth telling and privacy. There was therefore no need for the Court to exercise its supervisory jurisdiction. It also would have been wrong to grant the relief requested by Independent Counsel. Making the order would have made the Centre’s public education and research activities extremely difficult, if not impossible. The order would have been contrary to internationally accepted archiving standards and practices that the Assembly of First Nations and the negotiators of the IRSSA had in mind.

Fontaine v. Canada (Attorney General), [2018] O.J. No. 5539, Ontario Superior Court of Justice, P.M. Perell J., October 25, 2018. Digest No. TLD-December102018006