Jeremy Kolodziej

The National Centre for Truth and Reconciliation appealed an order concerning the disposition of statistical reports arising from the Indian Residential Schools Settlement Agreement and Independent Assessment Process.

The appellant sought directions for the appointment of an independent third-party statistical expert to prepare the reports, following the Chief Adjudicator's inability to do so.

The respondent Attorney General of Canada argued the motion should be remitted to the supervising judge of the Superior Court.

The Court of Appeal remitted the motion for directions to the Superior Court for case management and adjudication, emphasizing the supervising judge's extensive experience and the contentious nature of the proceedings requiring litigation.

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.

Canada brought a Request for Direction seeking approval of its proposal to archive copies of certain Non-Claim Records from the Independent Assessment Process with the National Centre for Truth and Reconciliation.

The National Centre for Truth and Reconciliation and the Assembly of First Nations responded with some objections, particularly regarding the redaction of personal information.

The court approved Canada's proposal, finding it consistent with the legal framework governing government document retention, the Indian Residential Schools Settlement Agreement, and previous court orders, while deferring the issue of Static Reports to a future Request for Direction.

This is an appeal concerning the disposition of statistical reports and records arising from the Indian Residential Schools Settlement Agreement (IRSSA) and the Independent Assessment Process (IAP).

The National Centre for Truth and Reconciliation (NCTR) appealed a lower court order that dismissed a request to generate and archive "proposed Static Reports" and excluded certain "Non-Claim Records." The Court of Appeal found that the Supervising Judge erred in dismissing the request for proposed Static Reports due to insufficient evidentiary foundation regarding confidentiality risks, reliability, and utility for truth and reconciliation.

The court remitted this issue for rehearing and ordered a stay on the destruction of the SADRE database.

The appeal regarding the exclusion of specific Non-Claim Records was dismissed, as the Supervising Judge properly balanced privacy and historical preservation interests.

The moving party, the National Centre for Truth and Reconciliation, sought a stay pending appeal of orders permitting the destruction of the SADRE database, which contains records from the Indian Residential Schools Settlement Agreement.

The moving party also sought procedural directions, including expediting the appeal and guidance on a sealing order.

The Court of Appeal dismissed the motion for a stay, finding it unnecessary as the database was preserved until December 2020 and the appeal could be expedited.

The court granted the procedural relief, expediting the appeal, allowing an extended factum, and providing directions on the scope of the sealing order.

This costs endorsement followed a Request for Direction (RFD) concerning privacy protections for the National Centre for Truth and Reconciliation (Centre) regarding Indian Residential Schools Settlement Agreement (IRSSA) documents.

The court had previously dismissed the RFD brought by Independent Counsel.

In this decision, the court considered costs submissions from Independent Counsel, the Centre, and the Assembly of First Nations (AFN), with Canada opposing.

The court declined to award costs to the Centre due to its acknowledged mistake in posting unredacted information and an unreasonable costs request.

However, it awarded the AFN $16,000 in partial indemnity costs, to be paid by Canada, recognizing the AFN's essential and helpful role in representing First Nations' perspective, despite Canada's success in the underlying RFD.

The court found jurisdiction to order Canada to pay costs due to its role as IRSSA administrator.

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.

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.

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.