Catherine A. Coughlan

The Attorney General of Canada brought a motion to quash an appeal by Fay Brunning, a lawyer representing persons in proceedings under the Indian Residential Schools Settlement Agreement.

The appeal challenged a direction issued by the Eastern Administrative Judge requiring Brunning to appear before an Independent Assessment Process Adjudicator.

The Court of Appeal allowed the motion to quash, finding that the direction was an interlocutory order rather than a final order, and that any appeal from it should go to the Divisional Court with leave.

The court also found the appeal moot since the scheduled proceedings had already taken place.

The court noted that while Brunning's concerns about the judge's comments regarding her conduct were understandable, those comments were part of the reasons for judgment, not the order itself, and could be challenged in other pending appeals.

A claimant, an Indian Residential School survivor, sought to reopen their Independent Assessment Process (IAP) claim under the Indian Residential Schools Settlement Agreement (IRSSA) to remedy an alleged miscarriage of justice due to the government's breach of disclosure obligations.

The claimant contended that previously undisclosed police documents and revised school narratives would have impacted the assessment of their claims regarding specific abuses and an alleged punitive device.

The court dismissed the Request for Direction, finding that the "Schachter threshold" for judicial recourse was not met, as the claimant had not exhausted internal review mechanisms and the new evidence would not meet the fresh evidence test.

The court emphasized the finality of the IAP process and the claimant's informed decision to accept the initial award.

Costs were awarded to the claimant's counsel despite the dismissal of the RFD.

Independent Counsel brought a Request for Directions seeking an order imposing strict privacy conditions on the National Centre for Truth and Reconciliation regarding documents transferred from the Truth and Reconciliation Commission.

They argued the Centre was bound by the same federal privacy legislation as the Commission under the Indian Residential Schools Settlement Agreement.

The court dismissed the request, finding that the Centre is not a federal government institution and is appropriately governed by Manitoba's privacy legislation and the National Centre for Truth and Reconciliation Act, which strike an appropriate balance between truth-telling and privacy.

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.

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.

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.

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.

This decision assesses the costs of the Court Monitor, Crawford Class Action Services Inc., incurred during an investigation into alleged unlawful fees charged by lawyer Douglas J. Keshen under the Indian Residential Schools Settlement Agreement (IRSSA).

Previously, Canada's request for Keshen to pay the Monitor's costs and Keshen's request for Canada to pay his costs were both dismissed.

The court, applying principles of reasonableness, prudence, and proportionality, reduced the Monitor's total accounts from $578,419.69 to $400,000.00, citing issues such as disproportionate hourly rates, duplication of work between the Monitor and its legal counsel, and redundancies during the transition between legal firms.

Canada was deemed responsible for paying the assessed amount.

The Requestor, an Indian Residential Schools Settlement Agreement (IRSSA) claimant, sought directions regarding Canada's alleged non-compliance with a prior disclosure order concerning documents related to St. Anne's Indian Residential School.

Specifically, the Requestor alleged Canada failed to produce examination for discovery transcripts from civil proceedings.

The court directed the parties to provide written submissions to determine whether Canada had complied with the January 14, 2014 order, finding that no further affidavit evidence was required at this stage given the narrow factual dispute.

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.

The appellant moved for a stay of an administrative judge's order pending the disposition of an appeal and cross-appeal regarding a claim under the Independent Assessment Process of the Indian Residential Schools Settlement Agreement.

The claimant and the Independent Counsel Group did not oppose the stay.

The Court of Appeal granted the stay, finding that there was a serious issue to be tried regarding the scope of review of factual errors, that irreparable harm to the public interest would result without a stay, and that the balance of convenience favoured a stay.

The court also ordered that the hearing of the appeal and cross-appeal be expedited.

The Attorney General of Canada sought an order requiring a lawyer to reimburse approximately $500,000 in costs for a Monitor's investigation into his practice regarding Indian Residential Schools Settlement Agreement (IRSSA) claims.

The lawyer resisted and sought a public statement clearing his name, along with costs on a substantial indemnity basis.

The court found that while the lawyer had breached the IRSSA by facilitating third-party loans, he had not misappropriated funds or acted with malicious intent.

The court dismissed both Canada's request for investigation costs and the lawyer's request for costs and a public statement.