Catherine A. Coughlan

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 moving parties, who are Independent Assessment Process (IAP) claimants under the Indian Residential Schools Settlement Agreement, brought a motion requesting that the case management judge recuse himself from hearing their Request for Directions.

The moving parties alleged actual bias or a reasonable apprehension of bias against St. Anne's IAP claimants, the lead moving party personally, and her former counsel.

The court reviewed the history of the proceedings, including numerous prior orders compelling document production from the respondent, and found no evidence of conscious or unconscious bias.

The court concluded that a reasonable and informed person would not apprehend bias, and dismissed the recusal motion with costs.

The moving parties, former residents of St. Anne's Indian Residential School, appealed an order appointing an Independent Special Advisor (ISA) to review Independent Assessment Process (IAP) claims and sought an interim preservation order for documents.

They argued the ISA appointment undercut ongoing proceedings and was made by a biased judge.

The court dismissed both motions, finding no serious issue on appeal due to the probable interlocutory nature of the order, no irreparable harm to the moving parties, and the balance of convenience not favoring a stay.

The preservation order was also denied due to ongoing related proceedings and Canada's undertaking to preserve documents.

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.

Two Requests for Directions were brought under the Indian Residential Schools Settlement Agreement (IRSSA).

The claimant, M-23620, sought directions to have her Actual Income Loss (AIL) claim determined by the court after an IAP Adjudicator issued an interim decision awarding compensation for other harms but leaving the AIL claim undecided.

Canada sought a review of the Adjudicator's interim decision and opposed the bifurcated procedure.

The court held that the bifurcated procedure established in the Kelly line of cases applies, allowing the AIL claim to proceed as a regular action in the Superior Court.

The court also held that Canada is entitled to pursue a review of the Adjudicator's decision concurrently with the court action.

Two Requests for Directions were brought under the Indian Residential Schools Settlement Agreement (IRSSA).

The claimant, M-23620, sought directions to have her Actual Income Loss (AIL) claim determined by the court after an IAP Adjudicator issued an interim decision awarding compensation for other harms but leaving the AIL claim undecided.

Canada sought a review of the Adjudicator's interim decision and opposed the bifurcated procedure.

The court held that the bifurcated procedure established in the Kelly line of cases applies, allowing the AIL claim to proceed as a regular action in the Superior Court.

The court also held that Canada is entitled to pursue a review of the Adjudicator's decision concurrently with the court action.

This endorsement settles the form of an order following a Request for Direction (RFD) brought by the Chief Adjudicator of the Independent Assessment Process (IAP) concerning the disposition of "Non-Claim Records" from the Indian Residential Schools Settlement Agreement (IRSSA).

The court had previously dismissed the Chief Adjudicator's RFD but directed Canada to bring a proposal for archiving copies of Non-Claim Records with the National Centre for Truth and Reconciliation (NCTR).

The parties disagreed on the wording of the resulting order.

The court resolved these disagreements, largely upholding the Chief Adjudicator's draft order regarding the treatment of privileged documents, the default regime for record retention, and the sealing of certain court exhibits, while rejecting proposed elaborations by the NCTR and Assembly of First Nations.

The Chief Adjudicator of the Independent Assessment Process (IAP) brought a Request for Directions proposing to archive 'Non-Claim Records' with the National Centre for Truth and Reconciliation (NCTR).

Canada opposed, arguing the records were government property subject to federal archiving statutes and that the court lacked jurisdiction.

The court held it had supervisory jurisdiction under the Indian Residential Schools Settlement Agreement and class proceedings legislation to determine the disposition of the records.

However, the court dismissed the Chief Adjudicator's specific proposal, instead directing Canada to develop and submit its own proposal for archiving copies of the Non-Claim Records with the NCTR, subject to specific principles regarding privacy, privilege, and historical preservation.

The National Centre for Truth and Reconciliation (NCTR) brought a motion to be added as a party to a pending Request for Direction concerning the disposition of 'non-claim records' held by the Indian Residential Schools Adjudication Secretariat.

The Attorney General of Canada opposed the motion, arguing that the NCTR's participation should be deferred until jurisdictional issues were resolved.

The court granted the NCTR's motion, finding that it had a direct interest in the disposition of the records and could provide unique evidence regarding its archival practices, and declined to bifurcate the proceedings.

The Attorney General of Canada moved to dismiss or stay an action brought by an Indian Residential Schools Settlement Agreement (IRSSA) claimant, arguing abuse of process based on release, re-litigation, requirement for leave, and improper forum.

The court rejected the arguments regarding release and re-litigation of certain disclosure issues.

However, it found that the action against Canada, which sought damages for breach of IRSSA disclosure obligations, involved the implementation and enforcement of the IRSSA and should have been initiated as a Request for Directions before the Eastern Administrative Judge under the Court Administration Protocol.

The action against Canada was stayed, while the action against the other defendants (solicitors) was deemed properly brought outside the IRSSA provisions.

The respondent appealed a motion judge's refusal to recuse himself from determining costs of a prior motion.

The motion judge had made comments about the respondent's conduct that the respondent argued gave rise to a reasonable apprehension of bias.

The respondent sought to appeal the recusal order to the Court of Appeal.

The moving party brought a motion to quash the appeal for lack of jurisdiction, arguing the recusal order was interlocutory, not final.

The Court of Appeal granted the motion to quash, finding that the recusal order did not finally determine any substantive rights of the parties and was therefore interlocutory, appealable only to the Divisional Court with leave.

The court also quashed the motion for leave to appeal the costs order, as the amount involved ($25,000) fell below the Court of Appeal's monetary jurisdiction threshold.

Following the dismissal of a recusal motion brought by counsel for the requestors, Canada sought costs on a partial indemnity basis.

Counsel for the requestors did not file responding costs submissions, arguing that the court should not take further steps while the recusal decision was under appeal.

The court rejected this argument, noting no stay had been obtained, and fixed costs at $28,911.04 payable by counsel personally.

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.

The Chief Adjudicator of the Independent Assessment Process under the Indian Residential School Settlement Agreement appealed two directions issued by the Eastern Administrative Judge.

The first direction prohibited the appellant from participating in three appeals and ordered him to withdraw his facta, finding him insubordinate and in defiance of the supervising courts.

The second direction rescinded the first and appointed an amicus curiae to bring a Request for Direction.

The Court of Appeal allowed the appeal and set aside both directions, finding that the appellant was owed procedural fairness and natural justice, which were not afforded.

The court also found the second direction violated the principle of functus officio.

The court held that any future proceedings regarding the appellant's conduct must follow the mandated Request for Direction process and be conducted by a different supervising judge.

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.

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.