Notices to Counsel

Court direction regarding St. Anne's Indian Residential School

March 6, 2014

Justice Perell of the Ontario Superior Court of Justice ruled on January 14, 2014 that certain documents related to St. Anne’s IRS in Fort Albany Ontario be released by Canada and by the Ontario Provincial Police (OPP) for use in the Independent Assessment Process (IAP). The documents relate to Ontario Provincial Police (OPP) investigations and criminal trials conducted in the 1990s.

Justice Perell’s decision on St. Anne’s IRS is available at: http://www.canlii.org/en/on/onsc/doc/2014/2014onsc283/2014onsc283.html

While some of the decision deals with issues that are related more to the Truth and Reconciliation Commission's Request for Directions, there are many issues that have implications for IAP cases involving St. Anne’s IRS.

  1. The Court agreed with a re-review decision by former Chief Adjudicator Dan Ish that adjudicators have no authority to order the production of documents.
  2. The Court found that Canada had interpreted its disclosure requirements obligations too narrowly in this case.
  3. The Court has required that Canada revise its School Narrative and alleged perpetrator research reports for St. Anne’s IRS.
  4. The Court has required that Canada make available a significant volume of documents, including documents and transcripts from criminal and civil proceedings.
  5. Justice Perell declined the Applicants’ request that he give adjudicators directions as to how evidence should be utilized in the IAP. The task of assessing evidence must remain with adjudicators who conduct the hearings.
  6. Justice Perell declined to order a re-opening of all previous IAP decisions regarding St. Anne's IRS. He ruled that individual adjudicators or the Chief Adjudicator do not have the power to re-open a settled IAP claim on the basis that disclosure is later found to be inadequate, but held that the court retains jurisdiction to re-open claims. Justice Perell emphasized that the court will only consider re-opening a claim, on a case by case basis, in rare and/or extraordinary circumstances, and that not every breach of Canada’s disclosure obligations will necessarily lead to a re-opening.

How Adjudicators will handle cases from St. Anne’s IRS

Adjudicators have been given the following guidance:

1. Requests to re-open previous IAP decisions regarding St. Anne’s IRS

Justice Perell has made it clear that such requests must be made to the supervising courts, not adjudicators or the Chief Adjudicator.

2. IAP cases that have not yet been decided

The Chief Adjudicator does not intend to direct a blanket postponement of St. Anne’s cases until the School Narrative is updated and the additional documents are made available. Adjudicators will make decisions on requests for postponements on a case by case basis.

3. Process for cases that have not yet been scheduled for hearing

Counsel (and self-represented claimants) and Canada will be invited to advise the Secretariat, either in writing, or by way of a teleconference presided over by an adjudicator, whether they prefer to:

  1. Defer scheduling the case for hearing until Canada has taken the steps set out by Justice Perell; or
  2. Schedule the case for a hearing. If they choose to proceed to hearing before Canada has met its obligations, they may, at the conclusion of the Claimant’s testimony:
    • Request a postponement of submissions until Canada meets its obligations; or
    • Reserve the right to ask the adjudicator to recall the claimant to testify in the event that anything in the new document production warrants this.

4. Cases already scheduled for hearing

Unless there is a compelling reason to postpone a case, hearings already scheduled should proceed. Postponement of a case in these circumstances should generally only be granted after the claimant has testified. Adjudicators may be expected to grant a postponement if they are satisfied that the additional documents may favourably affect the outcome of the claimant’s case.

Adjudicators will convene a teleconference to consult with all Parties before making a decision on a postponement. Any request for a postponement based solely on the general submission that “we can’t proceed until Canada produces redacted Ontario Provincial Police (OPP) documents pursuant to the order and a new narrative and Persons of Interest reports” will likely be refused.

Adjudicators will take a pragmatic approach with a view to encouraging the case proceeding to hearing rather than causing a delay.

Canada is required to receive, review and likely redact, catalogue and then distribute approximately 18 boxes of documents and then revise the St. Anne’s School Narrative. During the time a case is delayed while these steps take place, there is a risk that the claimant may be unable to testify later on. Adjudicators will therefore encourage such cases to proceed to hearing to preserve the evidence of the claimant.

5. Document production and disclosure

Canada’s School Narrative is a summary of the historical records of the school. For decision making, adjudicators rely on the source documents, not the narrative.

Once all documents (including any additional Ontario Provincial Police documents, the revised narrative and alleged perpetrator reports) are provided, counsel will be asked to advise the adjudicator and other parties in advance of the hearing as to which specific documents, including document and page numbers, they intend to rely on, and the purpose for which they intend to rely on such documents. This will likely be done through pre- or post-hearing teleconferences.

6. Relevance and Admissibility

Justice Perell made it clear in his decision that the Court will not give direction to the adjudicators regarding admissibility or relevance of any of the materials. It is important to remember that the IAP does not require corroboration of claimants’ testimony, and that the vast majority of cases are decided without resorting to similar fact evidence or corroborating testimony.