David Schulze

The Attorney General of Canada brought a Request for Directions to appoint an Independent Special Advisor to review certain Independent Assessment Process claims by former students of St. Anne's Indian Residential School.

The review was prompted by concerns that some claims were resolved before additional document disclosure was made available.

The court agreed that an independent review was necessary but modified Canada's proposed process to ensure claimants' interests were represented by an amicus and to remove arbitrary restrictions on the review.

The applicants, successful candidates in a First Nation election, sought judicial review of an Election Appeal Committee decision that overturned the results and ordered a new election.

The Court found the process procedurally unfair because the applicants did not receive personal notice of the appeals and were not afforded an opportunity to be heard before the Committee rendered its decision.

The decision was quashed and the matter remitted for reconsideration by a differently constituted Committee.

The appellants, claimants who suffered abuse at St. Anne's Indian Residential School in Ontario, filed a Request for Directions (RFD) regarding the respondent's disclosure obligations under the Indian Residential School Settlement Agreement (IRSSA).

The Eastern Administrative Judge (the Ontario Supervising Judge) recused himself and directed that the RFD be heard by the British Columbia Supervising Judge, relying on the Court Administration Protocol (CAP).

The appellants appealed, arguing the RFD must be heard in Ontario.

The Court of Appeal allowed the appeal, finding that the CAP contains mandatory language requiring RFDs involving relief for a particular class to be directed to the supervising court with jurisdiction over that class.

As the appellants are members of the Ontario class, the Ontario Superior Court of Justice has jurisdiction.

The matter was remitted to the Chief Justice of the Ontario Superior Court of Justice to assign a different judge.

The moving parties, survivors of the St. Anne's Indian Residential School, appealed an order directing their Request for Directions to be heard by a judge of the British Columbia Supreme Court rather than the Ontario Superior Court of Justice.

They brought a motion for a stay of the transfer order pending appeal and to expedite the appeal.

The Court of Appeal determined the transfer order was final for the purposes of appeal, applied the RJR-MacDonald test rather than the strong cause approach, and granted the stay, finding a serious question of interpretation regarding the Court Administration Protocol, potential for irreparable harm from inconsistent results, and that the balance of convenience favoured a stay.

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 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.