Ottawa Says Ontario Judge’s Ruling on Botched Rape Case Threatens ‘integrity’ of Residential School Settlement: Court Document

By Jorge Barrera
APTN
September 8, 2016

http://aptn.ca/news/2016/09/08/ottawa-says-ontario-judges-ruling-on-botched-rape-case-threatens-integrity-of-residential-school-settlement-court-document/

The federal government says an Ontario judge’s ruling which eviscerated the handling of a residential school rape case threatens the multi-billion dollar Indian residential school settlement agreement, according to court documents filed Wednesday.

Ontario Superior court Justice Paul Perell ordered Ottawa this past July to enter into compensation negotiations with a man who was raped as a boy by a priest at the Spanish Boys Indian residential school which was located near Spanish, Ont. Perell ruled the officials tasked with determining the legitimacy of claims and compensation levels under the settlement agreement’s Independent Assessment Process (IAP) botched the case.

Ottawa appealed the decision and in a document filed Wednesday argued Perell’s ruling overreached in its decision to accept the claim and oversee the setting of the compensation level instead of sending it back to the IAP for a rehearing.

“At issue are the finality and integrity of the IAP and IRSSA (Indian residential school settlement agreement),” said Ottawa’s appeal factum, which was filed with the Ontario Court of Appeal by Catherine Coughlan on behalf of the deputy Attorney General of Canada William Pentney.

Perell said in the ruling the IAP adjudicator relied on a “perverse finding of fact” to reject the claim of the man who was raped in the storage room of the chapel at the residential school. The adjudicator’s rejection was upheld in successive appeals launched by the man, identified as M.F. in court filings, as a result of reasoning based on “myopic logic,” said Perell in the ruling.

Ottawa said Perell’s ruling threatened the IAP and the settlement agreement as a whole.

“Only an independent adjudicator, including the chief adjudicator, is an appropriate ‘referee’ for the assessment of an IAP claim,” states Ottawa, in its court filing. “The overbroad declaration by the administrative judge poses serious risk to the integrity of the IAP, including its privacy and compensation rules.”

Ottawa argues that the IAP is a “post-litigation claims assessment process” which was the product of a negotiated settlement. Ottawa’s filing states the IAP is a closed process, meaning the courts can only intervene under “very exceptional circumstances” in decisions on compensation and claims.

“The IAP is a negotiated contract and a complete code,” said Ottawa’s filing. “Only a patent failure by the Chief Adjudicator or his designate to undertake his duties may provide grounds for judicial intervention.”

Ottawa claims Perell’s ruling unilaterally amended the settlement agreement.

“The administrative judge has added a fourth level of judicial decision-making to the IAP, varying the terms of the IRSSA. Had the parties intended such recourse, they would have included a general appeal provision…and widened the ambit of judicial making on IAP claims,” said the filing.

When Indian residential school survivors reached a multi-billion dollar settlement agreement with Ottawa and the Churches it led to the creation of a compensation process led by adjudicators who determined the legitimacy of claims and compensation amounts based on documents and arguments by federal lawyers along with submissions from Indian residential school survivors.

The adjudicators are required to follow criteria set out in the settlement agreement when making decisions. Survivors can appeal the decisions of adjudicators before a review adjudicator and then a re-review adjudicator, according to the settlement agreement.

Perell’s ruling essentially sets a precedent that would allow residential school claimants to challenge decisions delivered by the IAP. It’s a scenario Ottawa clearly wants to avoid given the arguments laid out in the appeal filing.

The IAP has faced a litany of controversies over the tactics of federal lawyers who have used legalistic and technical arguments, while facing accusations of suppressing documents, to defeat compensation claims by residential school survivors.

The IAP has also been beset by serious cases involving the questionable actions of lawyers who may have tainted potentially thousands of residential school claims.

This past August, Assembly of First Nations National Chief Perry Bellegarde wrote Indigenous Affairs Minister Carolyn Bennett and Dan Shapiro, chief adjudicator of the IAP Secretariat, asking for a review of cases involving sexual abuse. The letter was in response to a Manitoba judge’s decision to re-open a claim with the IAP that had been rejected because the adjudicator determined the nun’s “sexual intent” couldn’t be determined, according to a report in the Winnipeg Free Press.

In May, Perell ordered the re-hearing before the IAP of a case involving a survivor who attended the notorious St. Anne’s Indian residential school in Ontario’s James Bay region. The survivor took his case to court after he lost before the IAP because federal lawyers suppressed thousands of OPP investigation documents that supported his claim of sexual abuse.

This past February, APTN reported on a residential school survivor who was denied compensation for a rape she suffered as a 7 year-old girl at St. Michael’s Indian residential school in Alert Bay, B.C. IAP adjudicators sided with federal lawyers who argued the claim didn’t qualify because Indian Affairs’ Indian day-school branch paid the teachers who worked in the building where the attack happened. Day-schools were not covered by the settlement agreement.

In another case, federal lawyers were successful in defeating a claim from a residential school survivor who suffered a broken arm at the hands of a nun and suffered partial paralysis after a misapplied polio shot at the Grouard Indian residential school in Alberta. Federal lawyers successfully argued Ottawa had transferred responsibility of the school to provincial authorities at the time of the incident. Yet the institution continued to accept “Treaty Indians” and receive dollars from Ottawa when the incident happened.

In that case, an Alberta court ruled IAP adjudicators had the power to disqualify claims from survivors who attended residential schools listed as part of the settlement agreement, even if the same survivors received common experience payments.

It’s believed Justice Canada lawyers have used tactics like these against claims from about 50 schools, impacting potentially thousands of cases.

Ottawa has previously said it would be reviewing these types of cases.

In addition to this, thousands of IAP cases may have been compromised by the questionable actions of some lawyers. One high-profile case involved Calgary lawyer David Blott who was disbarred after it was found he improperly represented his residential school clients.

Blott was handling about 6,000 cases, but the IAP provided little recourse for his clients and instead told them to find a civil lawyer. The IAP Secretariat refused to review Blott’s clients’ files even after it was shown some survivors had their testimony change by people working for the disgraced lawyer.

Other lawyers handling residential school cases in Vancouver, Winnipeg and Kenora, Ont., have faced or are currently facing investigations or disciplinary hearings.

Contact: jbarrera@aptn.ca