The Canadian Bar Insurance Association
Civil Litigation

Decision raises issues about legal tactics in residential school claims


TORONTO — Survivors of the notorious St. Anne's residential school have no right to documents they argued were crucial to compensating them for the horrific abuses they suffered, Ontario's top court has ruled.

In rejecting a trio of interrelated appeals, the Ontario Court of Appeal (OCA) found no reason to interfere with a lower court decision that sided with the Canadian government's view that the documents should be kept secret.

The materials in question were generated during 62 lawsuits filed between 2000 and 2003 by 154 indigenous children over the physical and sexual abuse they suffered at St. Anne's in Fort Albany, Ont.

The appellants argued the documents should have been available to bolster compensation claims under a process set up as part of the settlement of a class action over the Indian residential school system.

Two of the appellants — a man known as H-15019 and a woman known as K-10106 — were both initially denied compensation but both succeeded after a legal fight and reviews.

H-15019, who was ultimately awarded $183,556, argued the difficulties he had in advancing his claim arose because of the government's failure to disclose all relevant documents it had, and that other claimants might have run into the same issue.

However, in its decision this week, the appeal court agreed the claimant had no direct tie to the civil litigation materials and the government, therefore, was not obliged to turn them over.

``The discovery evidence at issue was obtained in 62 distinct civil actions,'' the appeal court said. ``H-15019 was not a plaintiff in any of (them).''

In various lower court rulings over the past several years, Superior Court of Justice Paul Perell found the Canadian government had not acted in bad faith by failing to meet its obligations to turn over documents related to criminal proceedings that flowed from the St. Anne's abuse.

``Nor did he make any finding of reprehensible, scandalous or outrageous conduct on the part of Canada,'' the appeal court noted.

In an interview with, Alberta Indigenous rights litigator Leighton Grey says the OCA decision is sound in terms of its legal reasoning —protection of privacy is an important public policy objective that is well-entrenched in Canadian law.

“The better question is why does the Canadian government continue to take legal positions aimed at procedurally frustrating and otherwise defeating valid Indian Residential School Claims (IRS),” says Grey, a senior partner with Grey Wowk Spencer LLP. “To my mind, this question is most troubling.”

Grey says the Liberal government has attempted to generate political currency through the Truth and Reconciliation process, but that suppressing documentation relevant to residential school claims doesn’t support truth or reconciliation.

“Based on my extensive experience in representing IRS claimants, the government and the churches consistently deny and oppose IRS claims, even to the extent of citing technicalities or procedural rules to avoid paying claimants who are alleging serious physical, emotional, psychological, and financial harm.”

It would be a mistake to assail the OCA for its decision, Grey says, suggesting that any criticism can more justifiably be levelled at the federal government for taking an issue to the highest court in Ontario that should have been resolved through honest and open consultation with the claimants.

“Indeed, that is what IRS survivors were promised by this government,” he says. “In the result, IRS survivors and indigenous Canadians generally cannot help but be left with the impression that the Canadian government’s public image of truth and reconciliation is pure hypocrisy.”

While Canada did eventually hand over the criminal-related documents, it argued it had no obligation to disclose transcripts and other civil-litigation materials on the basis the information was subject to confidentiality rules. Both Perell and the appeal court agreed.

The second appellant, K-10106, alleged her former lawyers had represented the Roman Catholic Church, which ran St. Anne's during the civil actions, but failed to reveal the connection or that they knew relevant documents existed. She and a third appellant wanted Perell to issue an order that the government argued would have essentially reopened the entire compensation process.

The third appellant, a former chief of the Fort Albany First Nation and a St. Anne's survivor, never applied for compensation but has been active in the various legal proceedings.

Perell, however, found he didn't have the right to do what was being asked of him. The OCA again agreed with him.

While Perell's ruling might not have been perfect, the appeal court agreed that he simply didn't have the authority to grant the requested relief.

``In particular, he found that there is no basis to believe that the absence of the documents affected the outcome of her claim,'' the OCA ruled. ``K-10106 was successful and received a substantial award.''

St. Anne's, which the plaintiffs described as a ``veritable house of horrors'' where generations of indigenous children suffered ``unspeakable physical and sexual abuses,'' has long been the subject of criminal and civil proceedings. Courts in Ontario and British Columbia have issued about 20 separate decisions and endorsements related to the compensation process involving the now-defunct school.

© 2018 The Canadian Press

— with files from


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