Brent Thompson

The Chief Adjudicator of the Independent Assessment Process under the Indian Residential Schools Settlement Agreement appealed a direction issued by the Eastern Administrative Judge that rescinded an earlier direction prohibiting the Chief Adjudicator's participation in three appeals.

The Chief Adjudicator sought a stay of the second direction pending appeal.

The Court of Appeal granted the stay, finding serious issues to be tried regarding procedural fairness, the functus officio principle, and the propriety of the RFD process.

The court found that allowing parallel proceedings could result in irreparable harm through inconsistent results and damage to the administration of justice.

The Chief Adjudicator of the Independent Assessment Process under the Indian Residential Schools Settlement Agreement sought a stay of a Direction issued by the Eastern Administrative Judge that prohibited the Chief Adjudicator from continuing participation in three appeals, including one before the Supreme Court of Canada scheduled for October 10, 2018.

The Direction was issued without notice to the Chief Adjudicator or other parties and without supporting record.

The Court of Appeal granted the stay, finding serious issues to be tried regarding procedural fairness, jurisdiction, and the scope of participation permitted for administrative tribunals in appeals challenging their decisions.

This is a costs endorsement on appeal from a Superior Court judgment dismissing requests for directions by Indian Residential School claimants pertaining to St. Anne's Indian Residential School.

The appellants sought costs on a partial indemnity scale, arguing the unique circumstances and public interest nature of the case warranted an award.

Independent Counsel also sought costs.

The Court of Appeal upheld the lower court's dismissal of the requests without costs, finding that the predominantly procedural nature of the issues on appeal did not warrant a costs award in favour of the appellants or Independent Counsel.

This endorsement addresses costs arising from Requests for Direction (RFDs) concerning the Indian Residential Schools Settlement Agreement (IRSSA) Notice Program.

The Assembly of First Nations (AFN), Inuit Representatives, National Centre for Truth and Reconciliation (NCTR), and Independent Counsel sought full indemnity costs from Canada for their participation.

The court affirmed its special jurisdiction under IRSSA for costs awards, allowing deviation from standard indemnity principles.

It found Canada to be an appropriate costs payor due to its role as IRSSA administrator, not misconduct.

However, the court denied costs for pre-litigation activities, deeming them voluntary, and found the amounts claimed by NCTR and Independent Counsel excessive and disproportionate.

Ultimately, the court awarded partial indemnity costs to all four parties, significantly less than requested.

This decision addresses a costs award sought by the Attorney General of Canada against counsel, Ms. Fay Brunning, personally.

The underlying matter involved Requests for Directions (RFDs) related to the Indian Residential School Settlement Agreement (IRSSA), where Ms. Brunning represented claimants.

Canada sought $25,000 in costs, alleging Ms. Brunning brought duplicative, vexatious proceedings, made baseless and scandalous allegations against Canada and the courts, and unduly enlarged the proceedings.

The court found Ms. Brunning's conduct, including relitigating issues and defying court orders, fell within Rule 57.07(1) of the Rules of Civil Procedure and also warranted sanction under the court's inherent jurisdiction for seriously undermining the administration of justice.

Despite finding her conduct not dishonest or malicious, the court concluded it was an extraordinary case justifying a personal costs award.

Canada's request for $25,000 was granted, payable by Ms. Brunning personally.

This decision addresses a recusal motion brought by counsel, Fay Brunning, seeking to have Justice Perell recuse himself from deciding costs against her personally.

The motion arose after Justice Perell issued a case management direction ordering Ms. Brunning to attend her client's Independent Assessment Process (IAP) hearing, following her stated intention not to attend due to dissatisfaction with a prior ruling.

Ms. Brunning argued that the direction created a reasonable apprehension of bias.

The court dismissed the recusal motion, finding no convincing evidence of bias and emphasizing the judge's role in administering the Indian Residential School Settlement Agreement (IRSSA) and ensuring access to justice for claimants.

Angela Shisheesh, a class member under the Indian Residential School Settlement Agreement (IRSSA), brought a Request for Directions (RFD) seeking to deposit examination for discovery transcripts from the Cochrane civil proceedings with the National Centre for Truth and Reconciliation (NCTR) and a declaration that these transcripts were not subject to settlement privilege.

The court previously determined Shisheesh had standing only for directions regarding document delivery to the NCTR.

The court dismissed the RFD, finding no direction was needed for depositing the transcripts as the right was undisputed.

The court declined to issue a declaration on settlement privilege, deeming it unnecessary for the undisputed right to deposit documents and a matter for future case-by-case determination in other proceedings.

The Chief Adjudicator of the Indian Residential Schools Independent Assessment Process brought a Request for Direction regarding the notice program for the disposition of highly confidential records.

The court previously ordered the destruction of these records subject to a 15-year retention period during which claimants could choose to archive them at the National Centre for Truth and Reconciliation.

The main issue was whether the court had jurisdiction to order Canada to fund the participation of the Assembly of First Nations, Inuit Representatives, and the NCTR in the notice program.

The court found it had jurisdiction under the Class Proceedings Act and its inherent supervisory powers, and ordered Canada to provide funding, albeit at reduced amounts reflecting the organizations' limited roles.

Appeals arising from the implementation of the Indian Residential Schools Settlement Agreement (IRSSA).

The appellants sought declarations that Canada breached its disclosure obligations under the IRSSA by refusing to produce transcripts of examinations for discovery from civil actions (Cochrane Transcripts) and sought broad relief for all former students affected by alleged breaches.

The administrative judge dismissed the requests for directions.

The Court of Appeal upheld the dismissal, finding that Canada did not breach its disclosure obligations by refusing to produce the Cochrane Transcripts, that the deemed undertaking rule applied to protect the privacy of examinees, and that the court lacked jurisdiction to grant the broad relief sought.

The Requestors, former students of St. Anne's Indian Residential School, brought Requests for Directions (RFDs) under the Indian Residential Schools Settlement Agreement (IRSSA).

They sought directions regarding the procedure for an upcoming hearing to determine their standing.

The court directed that the Requestors must establish standing as a preliminary matter, that Canada is not required to file evidence or respond to a Request to Admit, and that costs immunity for the hearing is denied, with costs reserved to the court's discretion.

Two Requests for Direction (RFDs) were brought regarding the disclosure of documents from prior civil and criminal proceedings concerning St. Anne's Indian Residential School.

In the first RFD, an IAP claimant alleged Canada breached its disclosure obligations by withholding discovery transcripts.

The court dismissed this RFD, finding the transcripts were protected by settlement privilege and the deemed undertaking rule.

In the second RFD, former students and an association sought extraordinary relief, including investigations into the conduct of counsel and the reopening of claims.

The court dismissed the second RFD, holding that the requestors lacked standing and that the court lacked jurisdiction under the Indian Residential Schools Settlement Agreement to grant the requested relief, as complaints about lawyer conduct fall outside the court's administrative role.

The respondent M.F. made a claim under the Independent Assessment Process (IAP) of the Indian Residential School Settlement Agreement (IRSSA), alleging sexual abuse by a priest at a residential school.

The adjudicator found the abuse occurred but rejected the claim on the basis that M.F. did not meet the test for a non-resident/non-student claimant, as the school had closed before the alleged abuse.

The review and re-review adjudicators affirmed this decision.

M.F. brought a request for directions before an administrative judge, who undertook a full review of the IAP decisions and awarded compensation.

The Court of Appeal allowed Canada's appeal, finding that the administrative judge exceeded his jurisdiction by failing to apply the strict limits on judicial recourse established in Schachter v. Canada.

The court clarified that judicial intervention in IAP decisions is limited to very exceptional circumstances where the decision fails to enforce the IRSSA or apply the IAP model.

The matter was remitted to the chief adjudicator for reconsideration in light of newly discovered documents.

The applicants brought a Request for Directions under the Indian Residential Schools Settlement Agreement and sought a preliminary order for immunity from adverse costs awards.

On consent of the parties, the court granted the motion for costs immunity in part, subject to terms including the scheduling of a standing and jurisdiction motion and the adjournment of other related matters.

This motion concerned preliminary relief for a Request for Directions (RFD) brought by a claimant under the Independent Assessment Process (IAP) of the Indian Residential Schools Settlement Agreement (IRSSA), alleging non-disclosure of documents for St. Anne's Indian Residential School claims.

The claimant sought a re-hearing of their IAP application, directives on evidence, damages, and various orders regarding counsel and review processes.

The court granted a confidentiality order and publication ban for the record, but adjourned all other preliminary relief requests and the RFD itself as premature, pending the completion of the IAP re-review process.

The claimant brought a Request for Direction under the Indian Residential Schools Settlement Agreement after his claim for compensation for sexual assault was dismissed by an Adjudicator and upheld on Review and Re-Review.

The Adjudicator had relied on extra-curial knowledge to infer that the assault occurred after the school closed.

The court found that the Re-Review Adjudicator failed to apply the IAP Model by not correcting the Adjudicator's improper use of extra-curial knowledge and the Review Adjudicator's failure to find a palpable and overriding error.

The court assumed jurisdiction to quantify the claimant's award and determine costs.

A motion sought to add the National Centre for Truth and Reconciliation as a party, or alternatively as an intervenor, to a request for directions brought by the Truth and Reconciliation Commission concerning document production obligations under the Indian Residential Schools Settlement Agreement.

The moving party argued that because the Commission’s mandate was nearing expiry, it might become responsible for receiving and archiving documents produced under any order.

The court held that the repository’s role under the settlement agreement was distinct from the Commission’s document‑collection mandate and that its presence was not necessary for the court to adjudicate the issues.

The court further held that the moving party had not demonstrated a direct interest or that its participation would enhance the court’s determination of the request for directions.

Both joinder and intervention were refused.

Former students of a residential school brought a Request for Directions under the Indian Residential Schools Settlement Agreement alleging breaches of disclosure obligations in the Independent Assessment Process.

The court previously granted limited relief requiring additional document searches by the RCMP but dismissed most other requested remedies.

In this costs endorsement, the applicants sought full indemnity costs of approximately $95,000, arguing that claimants raising reasonable issues under the settlement framework should recover their legal costs regardless of outcome due to access to justice concerns.

The court held that while the applicants achieved only limited success, they were entitled to some compensation for raising a significant disclosure issue requiring judicial determination.

Exercising discretion in light of the unique context of the settlement agreement, the court awarded reduced costs.

Supplementary reasons addressing disagreement over the form of an order following a request for directions under the Indian Residential Schools Settlement Agreement Independent Assessment Process.

The applicants sought broad language compelling Canada to produce documents relating to alleged abuse at a residential school and to impose general disclosure obligations.

The court held that the operative order should reflect only the specific remedy granted in the earlier decision, not broader interpretive statements about Canada’s obligations under Schedule D, Appendix VIII of the settlement agreement.

The court ordered Canada to conduct additional document searches, including RCMP records relating to a specified alleged assault, update relevant narrative and person‑of‑interest reports, and produce documents upon request.

Other requested relief was dismissed.

The applicants, former students of St. Anne's and Bishop Horden Indian Residential Schools, brought a Request for Directions asserting that Canada failed to comply with its report writing obligations under the Indian Residential Schools Settlement Agreement.

They sought orders requiring Canada to revise School Narratives and Person of Interest Reports, and to provide unredacted source documents to adjudicators and claimants.

The court found that Canada's updated reports for St. Anne's did not comply with the Agreement and ordered Canada to revise them to include a detailed chart of abuse allegations and corresponding documents.

The court also ordered Canada, on consent, to provide unredacted copies of publicly available court records, but dismissed the request for unredacted copies of other documents, citing privacy safeguards in the Agreement.

The applicants, former students at the Bishop Horden Indian Residential School, brought a Request for Directions alleging that Canada breached its document disclosure obligations under the Indian Residential Schools Settlement Agreement (IRSSA).

They sought orders compelling Canada to conduct additional searches for documents related to abuse at the school and requiring the Secretariat to establish a witness-matching program.

The court found that Canada breached its contractual obligations by failing to collect documents from the RCMP detachment at Moose Factory.

The court ordered Canada to conduct these additional searches but dismissed the requests for a witness-matching program and broader document production, finding they exceeded Canada's obligations under the IRSSA.