COURT OF APPEAL FOR ONTARIO DATE: 20210401 DOCKET: C68080
Roberts, Jamal and Thorburn JJ.A.
BETWEEN
Larry Philip Fontaine in his personal capacity and in his capacity as the Executor of the estate of Agnes Mary Fontaine, deceased, Michelline Ammaq, Percy Archie, Charles Baxter Sr., Elijah Baxter, Evelyn Baxter, Donald Belcourt, Nora Bernard, John Bosum, Janet Brewster, Rhonda Buffalo, Ernestine Caibaiosai-Gidmark, Michael Carpan, Brenda Cyr, Deanna Cyr, Malcolm Dawson, Ann Dene, Benny Doctor, Lucy Doctor, James Fontaine in his personal capacity and in his capacity as the Executor of the estate of Agnes Mary Fontaine, deceased, Vincent Bradley Fontaine, Dana Eva Marie Francey, Peggy Good, Fred Kelly, Rosemarie Kuptana, Elizabeth Kusiak, Theresa Larocque, Jane McCullum, Cornelius McComber, Veronica Marten, Stanley Thomas Nepetaypo, Flora Northwest, Norman Pauchey, Camble Quatell, Alvin Barney Saulteaux, Christine Semple, Dennis Smokeyday, Kenneth Sparvier, Edward Tapiatic, Helen Winderman and Adrian Yellowknee
Plaintiffs
and
The Attorney General of Canada , The Presbyterian Church In Canada, The General Synod of the Anglican Church of Canada, The United Church of Canada, The Board of Home Missions of the United Church of Canada, The Women’s Missionary Society of the Presbyterian Church, The Baptist Church in Canada, Board of Home Missions and Social Services of the Presbyterian Church in Bay, The Canada Impact North Ministries of the Company for the Propagation of the Gospel in New England (also known as The New England Company), The Diocese of Saskatchewan, The Diocese of the Synod of Cariboo, The Foreign Mission of the Presbyterian Church in Canada, The Incorporated Synod of the Diocese of Huron, The Methodist Church of Canada, The Missionary Society of the Anglican Church of Canada, The Missionary Society of the Methodist Church of Canada (also known as the Methodist Missionary Society of Canada), The Incorporated Synod of the Diocese of Algoma, The Synod of the Anglican Church of the Diocese of Quebec, The Synod of the Diocese of Athabasca, The Synod of the Diocese of Brandon, The Anglican Synod of the Diocese of British Columbia, The Synod of the Diocese of Calgary, The Synod of the Diocese of Keewatin, The Synod of the Diocese of Qu’Appelle, The Synod of the Diocese of New Westminster, The Synod of the Diocese of Yukon, The Trustee Board of the Presbyterian Church in Canada, The Board of Home Missions and Social Service of the Presbyterian Church of Canada, The Women’s Missionary Society of the United Church of Canada, Sisters of Charity, a Body Corporate also known as Sisters of Charity of St. Vincent de Paul, Halifax, also known as Sisters of Charity Halifax, Roman Catholic Episcopal Corporation of Halifax, Les Soeurs de Notre Dame-Auxiliatrice, Les Soeurs de St. François d’Assise, Institut des Soeurs du Bon Conseil, Les Soeurs de Saint-Joseph de Saint-Hyacinthe, Les Soeurs de Jésus-Marie, Les Soeurs de l’Assomption de la Sainte Vierge, Les Soeurs de l’Assomption de la Sainte Vierge de l’Alberta, Les Soeurs de la Charité de St.-Hyacinthe, Les Oeuvres Oblates de l’Ontario, Les Résidences Oblates du Québec, La Corporation Épiscopale Catholique Romaine de la Baie James (The Roman Catholic Episcopal Corporation of James Bay), The Catholic Diocese of Moosonee, Les Soeurs Grises de Montréal/Grey Nuns of Montreal, Sisters of Charity (Grey Nuns) of Alberta, Les Soeurs de la Charité des T.N.O., Hotel-Dieu de Nicolet, The Grey Nuns of Manitoba Inc. – Les Soeurs Grises du Manitoba Inc., La Corporation Épiscopale Catholique Romaine de la Baie d’Hudson –The Roman Catholic Episcopal Corporation of Hudson’s Bay, Missionary Oblates –Grandin Province, Les Oblats de Marie Immaculée du Manitoba, The Archiepiscopal Corporation of Regina, The Sisters of the Presentation, The Sisters of St. Joseph of Sault St. Marie, Sisters of Charity of Ottawa, Oblates of Mary Immaculate – St. Peter’s Province, The Sisters of Saint Ann, Sisters of Instruction of the Child Jesus, The Benedictine Sisters of Mt. Angel Oregon, Les Pères Montfortains, The Roman Catholic Bishop of Kamloops Corporation Sole, The Bishop of Victoria, Corporation Sole, The Roman Catholic Bishop of Nelson, Corporation Sole, Order of the Oblates of Mary Immaculate in the Province of British Columbia, The Sisters of Charity of Providence of Western Canada, La Corporation Épiscopale Catholique Romaine de Grouard, Roman Catholic Episcopal Corporation of Keewatin, La Corporation Archiépiscopale Catholique Romaine de St. Boniface, Les Missionnaires Oblates Soeurs de St. Boniface – The Missionary Oblates Sisters of St. Boniface, Roman Catholic Archiepiscopal Corporation of Winnipeg, La Corporation Épiscopale Catholique Romaine de Prince Albert, The Roman Catholic Bishop of Thunder Bay, Immaculate Heart Community of Los Angeles CA, Archdiocese of Vancouver – The Roman Catholic Archbishop of Vancouver, Roman Catholic Diocese of Whitehorse, The Catholic Episcopal Corporation of Mackenzie-Fort Smith, The Roman Catholic Episcopal Corporation of Prince Rupert, Episcopal Corporation of Saskatoon, OMI Lacombe Canada Inc. and Mt. Angel Abbey Inc.
Defendants ( Respondent )
Counsel: Joanna Birenbaum, for the appellant National Centre for Truth and Reconciliation Catherine A. Coughlan and Brent Thompson, for the respondent Attorney General of Canada Stuart Wuttke and Jeremy Kolodziej, for the respondent Assembly of First Nations P. Jonathan Faulds, Q.C., for the respondent National Administration Committee
Heard: October 29, 2020 by video conference
On appeal from the order of Justice Paul M. Perell of the Superior Court of Justice, dated January 20, 2020, with reasons reported at 2020 ONSC 366.
By the Court:
A. Overview
[1] This is an appeal by the National Centre for Truth and Reconciliation (“NCTR”) of the order regarding the disposition of proposed statistical reports and records arising out of the Indian Residential Schools Settlement Agreement (“IRSSA”) and the Independent Assessment Process (“IAP”).
[2] This appeal is about competing privacy and archival interests involving the preservation and control of historical documents and data that relate to the intensely personal and confidential accounts of the survivors of the abuse that occurred at Canada’s Indian Residential Schools. It concerns the myriad administrative records and other materials arising out of the settlement and adjudication of the Indian Residential School survivor claims pursuant to the historic IRSSA. The national tragedy of the Indian Residential Schools is well documented. The documentation of these claims was essential to the successful operation of the IAP that was established under the IRSSA. This documentation also served to advance the integral purposes of truth and reconciliation through the creation of the NCTR, a unique Indigenous historical archive.
[3] The IAP records and documents have been the subject of several court proceedings. This appeal concerns the disposition of certain documents and the use of data (“Records”) related to the administration of the IAP by the Indian Residential Schools Adjudication Secretariat (the “Secretariat”) under the direction of the Chief Adjudicator. These Records pertain to the operation, management, and oversight of the IAP. Through the IAP, thousands of Indian Residential School survivor claims were adjudicated and resolved pursuant to the IRSSA that was court-approved in late 2006 and early 2007.
[4] The Chief Adjudicator brought a Request for Directions (“RFD”) before the Supervising Judge of the Ontario Superior Court of Justice (“Supervising Judge”) with respect to two classes of Records: (a) proposed statistical reports; and (b) Non-Claim Records. The Supervising Judge is tasked with administering the IRSSA in Ontario. In this RFD, the Chief Adjudicator proposed to generate new statistical reports, titled “Final Outcome Statistical Reports” and referred to as “Static Reports” (the “proposed Static Reports”), about the IAP using confidential claims data. If these proposed Static Reports were approved, the Chief Adjudicator intended to include them in his IAP Final Report. The Chief Adjudicator also sought permission to transfer the proposed Static Reports and some of the Non-Claim Records for archiving to the appellant, the NCTR, which is an emanation of the IRSSA and not a party to the IRSSA.
[5] At issue before the Supervising Judge was the risk of disclosure of IAP confidential information, as well as the reliability and archival importance of some of the statistical data and administrative documents sought to be produced and archived. The Supervising Judge’s predominant concern was to preserve the confidentiality of all information and documentation related to the claims and identities of the Indian Residential School survivors. With respect to the proposed Static Reports, if they could be produced in a form that ensured confidentiality, reliability, and archival validity, they would no doubt be of historical and archival importance.
[6] The Supervising Judge dismissed the Chief Adjudicator’s RFD and declined to fully implement his proposal, including the preparation of the proposed Static Reports. Instead, the Supervising Judge directed the respondent, the Attorney General of Canada (“Canada”), to submit a new proposal for the archiving of copies of the Non-Claim Records with the NCTR, subject to certain inclusions and exclusions.
[7] The NCTR submits that the Supervising Judge erred in dismissing the Chief Adjudicator’s RFD. Canada maintains that the Supervising Judge made no error and that the appeal should be dismissed.
[8] For the reasons that follow, we agree that the Supervising Judge erred in his treatment of the proposed Static Reports, and we therefore remit this issue for a rehearing before the Supervising Judge. We dismiss the appeal as it pertains to the Non-Claim Records.
B. Issues
[9] The NCTR alone appeals from the Supervising Judge’s order and raises the following issues:
i. Can and should the proposed Static Reports be generated and archived with the NCTR? In particular, did the Supervising Judge err in concluding that the proposed Static Reports should not be generated or archived, and that the model proposed Static Reports should remain sealed, as they:
(a) directly or indirectly contravene Canada (Attorney General) v. Fontaine, 2017 SCC 47, [2017] 2 S.C.R. 205 (“Fontaine (SCC)”), by possibly allowing the identities of claimants and their confidential information to be uncovered;
(b) could be manipulated or spun to draw unreliable and contentious conclusions; and
(c) do not appear to advance the goals of truth and reconciliation?
ii. Did the Supervising Judge err in excluding from archiving at the NCTR the following Non-Claim Records:
(a) the adjudicator performance records;
(b) the non-public IAP Oversight Committee records;
(c) the complaint and investigation records in respect of IAP claims; and
(d) any records that risk disclosing IAP personal information, confidential information, or information subject to solicitor-client or litigation privilege?
iii. Did the Supervising Judge err by permitting Canada to archive the excluded Non-Claim Records while prohibiting Canada from ever transferring these records to the NCTR?
[10] The NCTR also requests a stay of the Supervising Judge’s order with respect to the proposed Static Reports in order to forestall the destruction of the Single Access to Dispute Resolution Enterprise (“SADRE”) database, which is used to case-manage IAP claims.
[11] The SADRE database houses the IAP data from which the proposed Static Reports would be generated. Only authorized staff in Aboriginal Affairs and Northern Development Canada (now Crown-Indigenous Relations and Northern Affairs Canada) and Secretariat offices, and those who have approved remote access software, can access the SADRE database. Through the design of the SADRE database, some information is only accessible by the Secretariat and some information is only accessible by Crown-Indigenous Relations and Northern Affairs Canada.
[12] On December 11, 2020, this panel granted an interim stay of the order and of the destruction of the SADRE database until the release of this decision. As indicated below, this stay is continued until the Supervising Judge disposes of the issue of the proposed Static Reports that we remit for a rehearing.
[13] The Assembly of First Nations (“AFN”) and the National Administration Committee (“NAC”) support the position taken by the NCTR regarding the proposed Static Reports. However, they take no position regarding the Non-Claim Records.
[14] Canada submits the appeal should be dismissed in its entirety. Its overarching submission is that the NCTR has no contractual right or legal entitlement to demand production of these documents.
[15] The Chief Adjudicator did not commence an appeal, nor did he appear on the hearing of the NCTR’s appeal, despite being granted 15 minutes for oral argument by Pepall J.A.: Fontaine v. Canada (Attorney General), 2020 ONCA 540, at para. 17. In a subsequent letter addressed to this panel, dated September 15, 2020, the Chief Adjudicator determined that his participation in this appeal was not necessary, as the Supervising Judge “exercised his jurisdiction over the Non-Claim Records arising from the administration of the IRSSA by shaping the scope of a donation to the NCTR through balancing the personal privacy concerns with the public interest in preserving the records.” Further, the Chief Adjudicator determined that it was best he did not participate in the appeal, “[g]iven past concerns about the participation of the Chief Adjudicator in appellate proceedings”. The proposed Static Reports were not mentioned in this letter. While the Chief Adjudicator’s absence does not preclude our determination of this appeal, on the rehearing, the Supervising Judge will need to determine the Chief Adjudicator’s current position regarding the proposed Static Reports.
C. Admission of Fresh Evidence
[16] Canada seeks to adduce fresh evidence on this appeal: the October 20, 2020 affidavit of Patricia Long, a paralegal with the Department of Justice Canada, that sets out the history of the appeal; and Canada’s responding compendium containing Canada’s materials filed in response to the NCTR’s stay motion before Pepall J.A., including the August 13, 2020 affidavit of Ms. Long, affidavits filed in relation to the RFD that culminated in Fontaine (SCC), and the IRSSA itself.
[17] The NCTR primarily objects to the admission of Ms. Long’s August 13, 2020 affidavit, which includes information that, as of that date, through the IAP notice plan that began in 2018, 33 IAP claimants have authorized the Chief Adjudicator to deliver their IAP documents to the NCTR. The NCTR submits that this information is unhelpful and leads to evidentiary questions that the NCTR could have addressed if this had been raised before the Supervising Judge. In any event, the NCTR notes that IAP claimants have until September 2027 to make a decision about archiving their records.
[18] We admit the materials proffered by Canada. In our view, the statistical information meets the criteria for admission: it was not available before the Supervising Judge; and it is relevant and necessary to “deal fairly with the issues on appeal”, as this information completes the contextual background for this appeal: Sengmueller v. Sengmueller (1994), 111 D.L.R. (4th) 19 (Ont. C.A.), at pp. 22-23.
D. Contextual Background
[19] As an organizing framework for our analysis, we briefly set out the context in which the documents and data in issue were created and how the question of their disposition came before the Supervising Judge for consideration.
(1) Overview of the IRSSA and the IAP
[20] All the documents and data were created pursuant to the implementation and administration of the IRSSA. The IRSSA settled the class actions and civil claims of the approximate 79,000 survivor claimants who suffered abuse while residents of the Indian Residential Schools in Canada and who were living as of May 30, 2005: Baxter v. Canada (Attorney General) (2006), 83 O.R. (3d) 481 (S.C.), at para. 4; Fontaine v. Canada (Attorney General), 2020 ONCA 688, at para. 6.
[21] Between the 1860s and 1990s, more than 150,000 Indigenous children were placed in the Indian Residential Schools funded by Canada and operated by various religious organizations. Here, the children suffered the appalling abuse that gave rise to the IRSSA. The IRSSA represents the culmination of negotiations to address the historical and ongoing damaging legacy of Canada’s Indian Residential Schools system. Notably, the Preamble to the IRSSA provides that its goals are to achieve a “fair, comprehensive and lasting resolution of the legacy of Indian Residential Schools” through the “promotion of healing, education, truth and reconciliation and commemoration”.
[22] Between December 2006 and January 2007, nine courts across Canada (the “supervising courts”) approved the IRSSA and issued substantially identical Approval Orders. In March 2007, the supervising courts also issued identical Implementation Orders. As set out by the Supervising Judge, at para. 13 of his reasons, the judgments and orders of the supervising courts provide that the supervising courts “shall supervise the implementation of the IRSSA and that the [supervising courts] may issue such orders as are necessary to implement and enforce the provisions of the agreement and the judgment.”
[23] The IRSSA effectively combines all the outstanding litigation into one class action. Over 38,000 claims have been processed and resolved, and over $3 billion has been disbursed to IAP claimants. The IRSSA provides for financial compensation to the survivors of the Indian Residential Schools, and it addresses the need for the archiving of documents to advance truth-telling and reconciliation and recognize the state’s duty to remember, all the while safeguarding the privacy interests of the individuals who participated in the process.
[24] The IRSSA recognizes that compensation for the survivors of abuse through the IAP process is insufficient to fulfill its goals of truth and reconciliation. As the AFN indicated in its November 2004 report entitled “Report on Canada’s Dispute Resolution Plan to Compensate for Abuses in Indian Residential Schools”, truth-telling, healing, and public education are also required. The AFN’s recommendation for the creation of a truth commission to advance these purposes was incorporated into the IRSSA.
[25] Article 7.01 and Schedule N of the IRSSA establish the Truth and Reconciliation Commission (“TRC”), which was tasked with creating a historical record of the Indian Residential School system and ensuring that its legacy is preserved and made accessible to the public for future study: Fontaine (SCC), at para. 11. Schedule N also provides for the creation of a National Research Centre, later the NCTR, to archive and store the records collected by the TRC: Fontaine (SCC), at para. 11. Schedule N also allows, but does not require, the transfer of IAP information to the TRC, and therefore to the NCTR, for research and archiving purposes.
[26] In keeping with the purposes of truth and reconciliation, pursuant to Schedule D of the IRSSA, the IAP was created as a means for claimants to seek financial compensation for the serious physical and sexual abuse that they suffered at Indian Residential Schools. In the fabric of this court process, Canada has both an administrative role in allocating the settlement funds and an adversarial role in challenging IAP claims: Baxter, at paras. 36-38.
[27] Given the enormously sensitive and private nature of the information that is disclosed during the IAP, there was a high premium placed on confidentiality by the participants. But for the promise of “absolute confidentiality”, claimants, alleged perpetrators, and church representatives would not likely have participated: Fontaine (SCC), at paras. 42-47.
[28] The Secretariat manages the IAP under the direction of the Chief Adjudicator. The Chief Adjudicator, who has been in the role of supervising the IAP since 2013, is certainly well placed to make recommendations concerning records and reports pertaining to the IAP. As directed by Schedule D of the IRSSA, one of the Chief Adjudicator’s duties is to “[p]repare annual reports to the Oversight Committee on the functioning of the adjudicative process under this IAP.” This IAP Oversight Committee supervises the administrative aspects of the IAP. In addition, the Implementation Orders for the IRSSA indicate a further reporting obligation for the Chief Adjudicator, as he must report directly to the supervising courts of the IRSSA “not less than quarterly on all aspects of the implementation and operation of the IAP.”
[29] The IRSSA does not expressly address the issue of the production of the proposed Static Reports nor the disposition of the Non-Claim Records. However, the establishment of the TRC, its goal to create as complete a historical record as possible, and the creation of the NCTR to fulfill the TRC’s mandate, support the idea that the IRSSA allows for the production of historically important and reliable materials and documents where no risk of disclosure of confidential information exists.
(2) The Chief Adjudicator’s RFD and Fontaine (SCC)
[30] In anticipation of the projected completion of IAP adjudication work by December 2020 and the projected administrative closeout of the Secretariat by March 31, 2021, the Chief Adjudicator has sought the direction of the Supervising Judge concerning the appropriate disposition of all the Records pertaining to the IAP.
[31] The disposition of the IAP documents related to the claims advanced by Indian Residential School survivors (the “Claim Records”) was the subject of an earlier RFD that culminated in the Supreme Court of Canada’s decision in Fontaine (SCC). Here, the Supreme Court upheld the Supervising Judge’s decision that all Claim Records must be destroyed following a 15-year retention period to protect the privacy and confidentiality rights of the claimants. During this period, individual IAP claimants may elect to have their own Claim Records preserved and archived through a notice program administered by the Chief Adjudicator. According to the fresh evidence filed by Canada, as of August 13, 2020, only 33 claimants have so far elected to transfer their own Claim Records to the NCTR.
[32] In Fontaine (SCC), the Supreme Court resolved “[t]he tension between th[e] mandate of commemoration and memorialization, and the privacy which IAP claimants were promised”: at para. 11. The Supreme Court confirmed the primacy of the IAP claimants’ entitlement to privacy and the need to respect their choice to share (or not share) their sensitive and personal stories. As the Supreme Court observed at para. 59, “It is not for this Court to conscript the stories of survivors, where confidentiality and solely voluntary disclosure had been agreed to.”
[33] The Chief Adjudicator sought directions regarding his proposal to produce and archive the proposed Static Reports. With respect to the Non-Claim Records, the Chief Adjudicator made a proposal and sought directions regarding their disposition and archiving at the NCTR.
[34] With respect to the proposed Static Reports, importantly, the Secretariat had already prepared statistical reports using the SADRE database (“existing statistical reports”), which have been disseminated to the IAP Oversight Committee and the supervising courts through the Chief Adjudicator’s annual and quarterly reports. Some of these existing statistical reports have been published on the Secretariat’s website and therefore made available to the public. According to the October 25, 2019 affidavit of Nicole Hansen, the Acting Manager of the Business Process Management and Reporting Unit of the Secretariat and Supervisor of Statistical Operations, at para. 24, the rationale behind the production of the proposed Static Reports is that “statistical data from the IAP can contribute to understanding the scale and scope of abuse at residential schools by future historians, as well as contributing to understanding the IAP claims process itself.”
[35] According to Ms. Hansen, the proposed Static Reports were intended to be a final set of statistical reports to provide an overview of the IAP claimant population and the claims process. The Chief Adjudicator proposed that they be appended to his IAP Final Report and also archived at the NCTR. Model proposed Static Reports were produced under seal for the Supervising Judge’s review, attached as Exhibit “K” to Ms. Hansen’s affidavit.
[36] The initial generation of the proposed Static Reports was undertaken in consultation with the lAP Oversight Committee. As indicated at paras. 25-26 of Ms. Hansen’s affidavit, “Sample Final Static Reports [were] provided to the lAP Oversight Committee and modifications [were] made based on feedback received from committee members.” In fact, the variables to be cross-tabulated and presented in the proposed Static Reports “were selected based on consideration of what might be of interest to residential school survivors, historical researchers, and the public.”
[37] A very high-level summary of the nature of these proposed Static Reports is contained at para. 39(g) of the Supervising Judge’s reasons. In describing the major details of the Chief Adjudicator’s proposal, the Supervising Judge explained that the proposed Static Reports would cross-tabulate specific variables in the SADRE database and be accompanied by a glossary of terms. For example, the proposed Static Reports would aggregate information about lAP claimant profiles based on variables such as age, sex, and acts of abuse by province.
[38] At para. 30 of her affidavit, Ms. Hansen provided a general list of the categories of information to be contained in the proposed Static Reports:
(i) General statistical information about the lAP;
(ii) Overview of IAP claims;
(iii) lAP process timelines;
(iv) Claim compensation statistics;
(v) lAP claimant profile;
(vi) Claim compensation statistics by religious affiliation of [Indian Residential Schools]; and
(vii) Claim statistics for individual [Indian Residential Schools].
[39] Ms. Hansen deposed that the Secretariat uses various techniques to protect individual privacy and confidentiality, including data generalization and data suppression, when producing statistical reports. Using these techniques, the model proposed Static Reports attached as Exhibit “K” to Ms. Hansen’s affidavit were generated at the national, provincial, and territorial level. For the proposed Static Reports, as stated at para. 28 of Ms. Hansen’s affidavit, the age of claimants will be aggregated in 10-year bands, with outliers of very young or very old claimants further aggregated. Lastly, Ms. Hansen indicated at para. 27 that where fewer than 20 adjudicator decisions were made in respect of an individual Indian Residential School, the data will be aggregated and summarized in an “other schools” category.
[40] Despite this study of the techniques to be used, the parties proffered no expert or other evidence concerning the level of data generalization or data suppression that would be necessary to ensure confidentiality and the reliability and archival soundness of the proposed Static Reports, nor was there any evidence before the Supervising Judge that any particular table contained in the model proposed Static Reports attached as Exhibit “K” to Ms. Hansen’s affidavit identified or risked identifying lAP claimants or anyone else.
(3) The Supervising Judge’s Decision
[41] The Supervising Judge determined that the proposed Static Reports should not be generated or included in the Chief Adjudicator’s IAP Final Report or archived at the NCTR. He concluded that the proposed Static Reports might reveal, through deductive reasoning, the identity of IAP claimants, which would contravene the prior order in Fontaine (SCC). The Supervising Judge also held that there was a danger the data could be manipulated or spun to draw unreliable and contentious conclusions, and in his view, some of the data would not necessarily advance truth and reconciliation.
[42] The Supervising Judge held that with respect to the Non-Claim Records, the normal regime for the disposition of government documents should not be disturbed. Therefore, Canada, not the Chief Adjudicator, should submit a new RFD for the disposition and archiving of copies of the Non-Claim Records with the NCTR, subject to the Supervising Judge’s directions concerning the inclusion and exclusion of certain documents in the Non-Claim Records collection. In particular, he excluded from the Non-Claim Records collection the adjudicator performance records, the non-public IAP Oversight Committee records, and the complaint and investigation records, on the basis that they reveal confidential, sensitive, and privileged information. He also generally excluded the archival of records where there was any risk that they could reveal IAP personal information, confidential information, or information subject to solicitor-client or litigation privilege.
E. Analysis
(1) Standard of Review
[43] At its core, this appeal involves the Supervising Judge’s treatment of the proposed Static Reports and the Non-Claim Records based on his review of the evidentiary record before him. Notably, in dismissing the Chief Adjudicator’s RFD, the Supervising Judge reviewed the model proposed Static Reports and other key pieces of evidence pertaining to the Non-Claim Records to arrive at his conclusions. Therefore, his conclusions involved the “interpretation of the evidence as a whole”: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 36; Amertek Inc. v. Canadian Commercial Corp. (2005), 76 O.R. (3d) 241 (C.A.), at para. 68, leave to appeal refused, [2005] S.C.C.A. No. 439.
[44] Such an interpretation of evidence involves factual or inferential determinations, which are entitled to deference and should not be overturned by an appellate court, except where there is a palpable and overriding error or one of its “functional equivalents”, which includes a decision that is “not reasonably supported by the evidence”: see H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 110; MacDougall v. MacDougall (2005), 205 O.A.C. 216 (C.A.), at para. 31.
[45] Moreover, by virtue of his appointment, the Supervising Judge has wide supervisory jurisdiction and discretion under the IRSSA, class action legislation, and his inherent jurisdiction as a superior court justice, to implement and administer the IRSSA and make directions regarding the disposition of the IAP documents: Fontaine (SCC), at paras. 31-33. Having served as Eastern Administrative Judge since 2013, the Supervising Judge is certainly well-versed in the history of the IRSSA and the importance of the IAP documents.
[46] However, as we will explain below, the Supervising Judge’s conclusion, at para. 225 of his reasons, that producing and archiving the proposed Static Reports “puts far too much at risk, for too little gain” was “not reasonably supported by the evidence”: H.L., at para. 110. Appellate intervention is therefore warranted to remit this issue for a rehearing before the Supervising Judge.
[47] We reach a different conclusion with respect to the Supervising Judge’s dismissal of the Chief Adjudicator’s proposal for the Non-Claim Records. For the reasons set out below, we see no error with his determination of this issue.
(2) The Proposed Static Reports
(a) Positions on Appeal
[48] The NCTR, the AFN, and the NAC submit that the Supervising Judge erred in failing to order the generation of the proposed Static Reports. They say there is no evidence to support the Supervising Judge’s conclusions that the proposed Static Reports could reveal confidential information, were subject to manipulation and could be spun to drawn unreliable and contentious conclusions and would not advance truth and reconciliation.
[49] Canada opposes the preparation of the proposed Static Reports on the grounds that the IRSSA makes no reference to their generation and the NCTR does not possess a contractual or legal right to require their production. Canada submits there is no basis to intervene with the Supervising Judge’s determination that the proposed Static Reports would contravene the order in Fontaine (SCC), nor his conclusions concerning the issues of reliability and utility.
(b) Discussion
[50] The issue is whether the Supervising Judge should have ordered that the proposed Static Reports be produced by the Chief Adjudicator and archived at the NCTR. In his reasons, the Supervising Judge outlined three key concerns: whether the confidentiality of IAP claimants could be maintained; whether the information could be manipulated or spun to draw unreliable and contentious conclusions; and whether the production of the proposed Static Reports would advance the goals of truth and reconciliation.
[51] The parties adduced no evidence that the Supervising Judge was prepared to accept in relation to these questions, nor did the Supervising Judge request further evidence to address his concerns.
[52] Given the Supervising judge’s concerns, he could and should have requested further information from the parties to enable him to properly assess his concerns. He erred by dismissing the request for the production of the proposed Static Reports and the archiving of the proposed Static Reports at the NCTR in the absence of an evidentiary foundation that permitted him to make any determination on these issues.
[53] In his reasons, the Supervising Judge acknowledged the historical significance of both the Claim Records and the Non-Claim Records. He also recognized the historical significance of the existing statistical reports that were founded on data from the SADRE database, as evidenced by the fact that he ordered that they be included in the Non-Claim Records collection to be archived at the NCTR.
[54] While the confidentiality, reliability, and archival validity of the form and contents of the proposed Static Reports were disputed, the historical and archival importance of the information to be contained in the proposed Static Reports was not in issue. The unchallenged June 9, 2018 expert affidavit of Dr. Trudy Huskamp Peterson, a Certified Archivist of the Academy of Certified Archivists, confirmed, at para. 10, that “a very broad approach to preserving records of transitional justice and human rights mechanisms or institutions is prudent, appropriate, and in keeping with internationally accepted archiving principles and standards.”
[55] Given the historical significance of the information to be gleaned from the SADRE database that is slated for destruction, it was incumbent on the Supervising Judge to adjudicate this issue on an adequate record. He erred by rendering a decision that was “not reasonably supported by the evidence”: H.L., at para. 110.
[56] As a result, we remit the issue of the proposed Static Reports to the Supervising Judge for determination in accordance with these reasons and the directions that we shall outline at the conclusion of our analysis.
[57] As we are remitting the issue of the proposed Static Reports to the Supervising Judge, it is important that we delineate in our analysis the facets of the Supervising Judge’s analytical approach that are not in dispute or in error, and those that require correction and further direction for the purpose of the rehearing.
(i) The Unchallenged Aspects of the Supervising Judge’s Approach
[58] We start our analysis with the issues that are not in dispute on appeal.
[59] First, the proposed Static Reports are meant to contain aggregated statistical data about IAP claimants that would serve to provide a better understanding of the claims process and the scale and scope of abuse at the Indian Residential Schools. As such, as long as the confidentiality of the IAP data is preserved, the IRSSA does not explicitly preclude the generation of the proposed Static Reports.
[60] Second, there is nothing in the IRSSA to circumscribe the Chief Adjudicator’s exercise of his discretion in fulfilling his responsibility to report on the process and explain the findings of the IAP, except for the overarching concerns of maintaining the privacy of the individuals involved in the IAP and of advancing the goals of truth and reconciliation.
[61] Third, concerns about the disclosure of the proposed Static Reports must be remitted to the Supervising Judge. The Supervising Judge has the power to direct the handling of the IAP documents: Fontaine (SCC), at para. 31. This includes determining whether the proposed Static Reports should be generated and archived. No party or non-party may unilaterally direct the production of any IAP document, including the proposed Static Reports. Approval of any such production must be sought from the Supervising Judge.
[62] Fourth, the Supervising Judge is required to protect the confidentiality of the IAP claimants’ private information. There is no dispute that if there were a risk that the proposed Static Reports revealed confidential claimant data, they should not be produced, as this would violate the order in Fontaine (SCC). Given that the information in the proposed Static Reports would be based on the confidential information contained in the SADRE database, protection of the IAP claimants’ rights to confidentiality must be maintained. Following Fontaine (SCC), the safeguarding of the IAP claimants’ privacy rights properly served as the main lens through which the Supervising Judge assessed the Chief Adjudicator’s proposal regarding the proposed Static Reports.
[63] Fifth, no issue is taken with the principles the Supervising Judge used to consider the reliability and archival utility of the proposed Static Reports. His reasons demonstrate that he was attuned to the four foundational principles for archives espoused by Dr. Peterson: authenticity; reliability; integrity; and usability.
[64] Sixth, there was no dispute that, like the existing statistical reports, the production of the proposed Static Reports could be of historical and archival significance, provided they are generated in a form that protects the claimants’ rights to the confidentiality of their IAP information, and that the data are produced in a reliable manner that is consistent with the principles of archival validity and utility.
[65] Indeed, the Supervising Judge’s approval of the existing statistical reports is unchallenged on appeal. As the Supervising Judge recognized by his inclusion of the existing statistical reports in the Non-Claim Records collection to be archived at the NCTR, the production of statistical reports may be of historical and archival significance, so long as these reports do not reveal IAP confidential data. In fact, the Supervising Judge, at para. 214 of his reasons, determined that the existing statistical reports do not violate the order in Fontaine (SCC), as “they are aggregate or collective information that does not identify individual claimants.”
[66] At para. 215 of his reasons, the Supervising Judge rejected Canada’s argument that the existing statistical reports revealed IAP confidential data because they “are more about the nature of the IAP claims in general and the aspects of the IAP that were engaged than they are about the characteristics or identities of the Claimants in particular.” He was further satisfied, at para. 222 of his reasons, that the existing statistical reports “ha[d] variables that in the aggregate do not reveal information that would be offensive to individuals or to the collective” because they “report on the Secretariat’s administration and processing of claims, rather than on what the claims process reveals about the history of particular residential schools”.
(ii) The Disputed Elements of the Supervising Judge’s Approach
[67] The NCTR argues that the Supervising Judge erred in his approach because his concerns about the proposed Static Reports are not supported by evidence. Canada disagrees with the NCTR’s position.
[68] The core of the Supervising Judge’s reasons regarding the proposed Static Reports is contained at paras. 220-25, excerpted here:
[H]aving examined the model Static Reports, I observe that depending on what specific variables are selected, it might be possible by deductive reasoning to disclose the identities of IAP Claimants and this would arguably contravene the Orders made in [Fontaine (SCC)].
[D]epending on school size and temporal information, and variables based on age, sex, and acts of abuse by province, it might be possible to deduce confidential personal information from some of the proposed Static Reports. I am especially concerned that this may be possible in the case of some small and remote communities, leading to very unfortunate consequences.
Information about how many claims were made and how many were resolved is statistical information that cannot be manipulated or spun to draw unreliable and contentious conclusions. However, the same cannot be said about some of the proposed Static Reports, where, for instance, unreliable and contentious conclusions might be drawn about acts of student-on-student abuse at particular schools. I have reviewed some models of Static Reports and the reliability and soundness of the models is doubtful without more information from historians, archivists, sociologists, and perhaps other social scientists with some expertise in statistical analysis about the proper and appropriate use of this statistical evidence[.]
Lies as much as truths can be told by the manipulation of data. There is some considerable truth in the progressive maxim “lies, damned lies, and statistics,” and care needs to be taken in making a statistical analysis that support[s] observations and conclusions that are debatable and contentious. A deeper understanding of the SADRE database might belie any conclusions to be drawn from Static Reports.
[I] do not see how truth and reconciliation will be advanced by reports identifying which school was the worst of the worst or ranking schools in the order of which school had more student-on-student sexual assaults than staff sexual assaults, etc. [Emphasis added.]
[69] As the emphasized excerpts demonstrate, the Supervising Judge expressed considerable concern about the inadequacy of the evidentiary record and raised questions that he concluded could not be answered. We agree with the NCTR’s submission that the Supervising Judge erred by dismissing the RFD without any adequate evidentiary foundation.
(iii) The Inadequacy of the Evidentiary Record
[70] With respect to the evidentiary record before him, it was open to the Supervising Judge to raise the issues he did concerning the absence of expert and other evidence that he believed precluded him from assessing the reliability and soundness of the proposed Static Reports.
[71] The Chief Adjudicator was alive to these issues. As we earlier noted, the lay affidavits before the Supervising Judge provided a summary of the possible methodologies that could be employed to anonymize data, such as data generalization and data suppression, and there was general, uncontroversial evidence about archival science and internationally accepted archiving principles.
[72] However, there was no expert or other evidence concerning the level of data generalization or data suppression that would be necessary to ensure confidentiality and the reliability and soundness of the proposed Static Reports. Notably, Dr. Peterson was not asked to provide an opinion on the generation of statistical information, which includes the proposed Static Reports.
[73] It is uncontroversial that the risk of disclosure of confidential information increases commensurate with the greater level of detail provided. As Professor David H. Flaherty noted at para. 74 of his May 2, 2014 affidavit, filed as expert evidence in support of the earlier RFD about the Claim Records, while in theory anonymization by redaction is possible, “[i]n practice, there is now a rich literature on how enormously difficult it is to try to anonymize personal information – and that the risks of re-identification are very high.”
[74] Further, there was no conclusive evidence as to what form the proposed Static Reports would definitively and ultimately take. The Supervising Judge was provided with models of proposed Static Reports, attached as sealed Exhibit “K” to Ms. Hansen’s affidavit. However, it was by no means certain that these models would be the final form of all the proposed Static Reports to be generated. As Ms. Hansen noted at para. 15 of her affidavit, “Statistical Reports can take many forms, depending on the available data, the purpose for which the reports will be used, and the audience.” Notably, prior proposed Static Reports were modified based on feedback from the IAP Oversight Committee members, which include an independent chair and eight other members: two former Indian Residential School students; two class counsel representatives; two church representatives; and two representatives for Canada. Also, when explaining the form of the model proposed Static Reports, Ms. Hansen used the words “[a]t present”, at para. 30 of her affidavit. Such language leads to the assumption that the model proposed Static Reports are not in final form, as the form itself may be modified in the future.
(iv) The Supervising Judge’s Errors
[75] Having identified his concerns that there was a lack of expert and other evidence, the Supervising Judge erred by concluding, at paras. 220 and 225 of his reasons, that the proposed Static Reports “would arguably contravene the Orders made in [Fontaine (SCC)]” and that “generating and archiving the Static Reports puts far too much at risk, for too little gain”, as these conclusions were “not reasonably supported by the evidence”: H.L., at para. 110. Other than the Supervising Judge’s personal examination of the model proposed Static Reports, the Supervising Judge did not refer to any evidence to justify these conclusions, and the defects in the evidentiary record that he identified did not permit him to reach those determinations.
[76] First, there was no evidence before the Supervising Judge in support of his belief, advanced at para. 221 of his reasons, that “it might be possible to deduce confidential personal information from some of the proposed Static Reports.” Nor has Canada submitted any concrete privacy or confidentiality concerns about specific identifiable information.
[77] While Professor Flaherty outlined in his affidavit the difficulty in anonymizing data, he did not state that it cannot be done. Indeed, the existing statistical reports demonstrate that it can be done. As already noted, the existing statistical reports contain aggregated data taken from the SADRE database. The Supervising Judge expressed no concerns about the confidentiality, reliability, or utility of those reports. Moreover, he ordered that they be included in the Non-Claim Records collection to be archived at the NCTR. During oral submissions, Canada conceded that the existing statistical reports are examples of reports where data were harvested from the SADRE database and presented “at a very high-level”, in a way that does not reveal confidential information.
[78] According to the October 11, 2019 affidavit of Roger Tetreault, the Executive Director of the Secretariat, at para. 51, the existing statistical reports, which are derived from the same database to be used to produce the proposed Static Reports, “are produced in accordance with statistical principles which involve the aggregation of data in ways that allow for meaningful analysis without identifying individuals.” The goal is to ensure that the proposed Static Reports do not contain personal information that could identify a claimant, alleged perpetrator, or any other affected individual.
[79] In her affidavit, Ms. Hansen explained the various methodologies that were used throughout the IAP process to ensure the confidentiality of claimants and other participants in the IAP when producing statistical reports: statistical aggregation of data; data generalization; and data suppression.
[80] The same statistical principles and methodologies employed to ensure the confidentiality, reliability, and utility of the existing statistical reports would presumably be used in the creation of the proposed Static Reports. The proposed Static Reports are statistical reports and, as Mr. Tetreault and Ms. Hansen indicate in their respective affidavits, statistical reports are produced in accordance with these statistical principles and methodologies.
[81] Second, there was no evidence in support of the Supervising Judge’s conclusion that the data in the proposed Static Reports could or would be manipulated. Specifically, the Supervising Judge’s reasons reference no evidence in relation to his statements at para. 223 that the reliability and soundness of “some models” that he reviewed was doubtful and that unreliable and contentious conclusions might be drawn regarding acts of student-on-student abuse at particular schools.
[82] Third, there was no evidence that the production of the proposed Static Reports would impair the goals of truth and reconciliation. On the contrary, as the Supervising Judge acknowledged by the inclusion of the existing statistical reports in the Non-Claim Records collection, the data within statistical reports are of historical importance. Notably, these data no doubt hold important information on how widespread the physical and sexual abuse was in the Indian Residential Schools. If confidentiality and reliability are ensured, the proposed Static Reports will be available to advance truth and reconciliation by presenting and preserving data about the history, impact, and legacy of Canada’s Indian Residential Schools. In this way, the proposed Static Reports would further the objectives of the IRSSA.
(v) Conclusion
[83] The Supervising Judge’s concerns about the need to ensure the confidentiality, reliability, and archival utility of the proposed Static Reports, and his concern regarding the lack of sufficient evidence, are valid concerns. However, there was no evidence before the Supervising Judge to substantiate those concerns.
[84] Having identified his concerns pertaining to confidentiality, reliability, and archival utility, the Supervising Judge should have required further evidence be adduced.
[85] In our view, one of the principal obstacles faced by the parties and the Supervising Judge is that no proposed Static Reports were generated. Only model proposed Static Reports were provided to the Supervising Judge. Without generating the proposed Static Reports in their final form, it is difficult if not impossible to determine whether the proposed Static Reports should be produced and archived. Generation of the proposed Static Reports will allow the parties to respond to the Supervising Judge’s concerns, articulate any specific objections, and substantiate those objections with reference to specific areas of issue in the proposed Static Reports.
[86] Accordingly, we order that any proposed Static Reports be produced in final form by the Chief Adjudicator, placed under seal, and submitted to the Supervising Judge prior to the rehearing. If the Chief Adjudicator is unable to produce the proposed Static Reports prior to the closure of the Secretariat, the parties may seek direction from this court.
[87] For clarity, the proposed Static Reports could include those already produced in Exhibit “K” to Ms. Hansen’s affidavit if those reports are, in fact, in final form. The Supervising Judge will then determine how the proposed Static Reports will be produced under seal, prior to the rehearing, to the parties and their experts for the purposes of the rehearing. Production of these proposed Static Reports under seal will allow the parties the opportunity to review the proposed Static Reports in their final form, and adduce further evidence to properly address, or make submissions concerning, the risk of disclosure of confidential IAP information, their reliability, and their archival validity.
[88] Until the Supervising Judge has determined the issue of the proposed Static Reports, we order a stay of the order and of the destruction of the SADRE database from which the proposed Static Reports are intended to be produced.
(3) The Non-Claim Records
[89] The NCTR submits that the Supervising Judge ignored Canada’s duty under the IRSSA to remember and to preserve records of enduring historical value and prioritized the privacy of state actors over the rights of Indigenous peoples, and the public interest in general, to the preservation of these records.
[90] In our view, these submissions have no merit and can be dealt with summarily.
[91] While the NCTR is an appropriate archive, it has no legal or contractual right to demand the transfer of any documents. As Canada argues, the IRSSA gives the NCTR no such authority. In fact, the IRSSA is otherwise silent regarding the disposition of the Non-Claim Records.
[92] Further, the Supervising Judge expressly referenced and acknowledged, at paras. 127-31 of his reasons, the historical and archival importance of the Non-Claim Records, including those pertaining to the administration and workings of the Chief Adjudicator, the IAP Oversight Committee, and the Secretariat. As he stated at para. 193 of his reasons:
The Claim Records and the Non-Claim Records are both important parts of creating a comprehensive historical record and of fulfilling Canada’s duty to compile a comprehensive and accessible record based on human rights principles that, in turn, respond to a right to justice, a personal and collective right to know, and the state’s duty to remember.
[93] The Supervising Judge was required to balance non-claimant individual rights to privacy, confidentiality, and legal privilege with the goals enshrined in the IRSSA. In doing so, he determined that the following categories of Non-Claim Records contained confidential, sensitive, and privileged information. This determination was rooted firmly in the unchallenged evidence of Mr. Tetreault and the archival assessment of Edward Tompkins, appended to Mr. Tetreault’s affidavit, which the Supervising Judge accepted.
(a) The Adjudicator Performance Records
[94] The adjudicator performance records were excluded from the Chief Adjudicator’s proposal. The Supervising Judge agreed with the Chief Adjudicator that disclosure of the adjudicator performance records would undermine deliberative secrecy and the finality of the IAP by providing a basis for collateral attacks on adjudicators’ decisions and re-litigation of matters settled in IAP proceedings. He also agreed that the idea of disclosing the records of adjudicators’ personal employment information was particularly inappropriate given the confidential nature of the IAP whereby decisions are not available for review.
(b) The Non-Public IAP Oversight Committee Records
[95] The non-public IAP Oversight Committee Records relate to the committee’s in camera sessions that arose in confidence. These also include records not normally made public: agendas; document packages; emails that may include sensitive personal information about adjudicators’ performance; complaints against claimant counsel and others; and information subject to solicitor-client privilege, litigation privilege, or common interest privilege. As a result, the Supervising Judge concluded that only publicly available records of the IAP Oversight Committee should be included in the Non-Claim Records collection.
(c) The Complaint and Investigation Records
[96] Complaint records include information about complaints and investigations into persons acting for claimants in connection with the IAP. They contain sensitive personal information and allegations against individuals. Some of the information has not been verified, corroborated, or tested. In some cases, the allegations were unfounded. A joint direction was made by judges in both Ontario and British Columbia that none of these documents should be published without prior written approval from the Court Monitor. The Supervising Judge therefore determined that the complaint and investigation records that had not been disclosed to the public should not be included in the Non-Claim Records collection.
[97] We see no basis to intervene with the Supervising Judge’s decision to exclude these three categories of records from the Non-Claim Records collection.
(d) The General Prohibition
[98] Finally, we see no error in the Supervising Judge’s general prohibition against the inclusion of records in the Non-Claim Records collection where there is any risk that these records could reveal confidential and privileged information. In any event, it is open to the parties and non-parties to clarify the meaning of this provision when they re-attend to deal with the proposed Static Reports and Canada’s RFD.
[99] We therefore dismiss this ground of appeal.
(e) Archiving of the Non-Claim Records
[100] Lastly, the NCTR submits that the Supervising Judge erred in holding that Canada can archive these original “confidential” records, while prohibiting Canada from transferring these records to the NCTR.
[101] We disagree that the Supervising Judge erred.
[102] The Supervising Judge’s clear prohibition is against the public disclosure of confidential IAP information, as confirmed by Fontaine (SCC). This is not controversial but a well-settled prohibition that applies equally to Canada and that the Supervising Judge was not permitted to revisit. As the Supervising Judge indicated at para. 203 of his reasons, “the NCTR is free to build as comprehensive an archive as it may outside of the strictures of the IRSSA, which strictures it must observe just as much as Canada must observe those strictures.”
[103] However, the Supervising Judge did not prohibit Canada from transferring any other Non-Claim Records to the NCTR. As he stated at paras. 204 and 211 of his reasons, “Canada is not or should not be against archiving copies of Non-Claim Documents with the NCTR,” and “there is, practically speaking, no meaningful dispute between the parties about the appropriateness of the NCTR as an archive for copies of the Non-Claim Records.” As such, copies of appropriate Non-Claim Records, not originals, can be delivered to the NCTR, following the approach used by Goudge J.A. in Fontaine v. Canada (Attorney General), 2013 ONSC 684, 114 O.R. (3d) 263, as emphasized by the Supervising Judge at para. 202 of his reasons.
[104] It is also important to note that, as set out at paras. 194-204 of his reasons, the Supervising Judge envisaged and recommended a consultative process with respect to the Non-Claim Records. The NCTR will also have the opportunity to participate in the hearing of Canada’s RFD and proposal regarding the Non-Claim Records to voice its concerns.
[105] We therefore dismiss this ground of appeal.
F. Disposition
[106] For these reasons, we allow the appeal in part, set aside paras. 3(f) and 7 of the Supervising Judge’s January 20, 2020 order, and remit the issue of the proposed Static Reports to the Supervising Judge for a rehearing in accordance with these reasons.
[107] We order the production of any further proposed Static Reports to be in final form and placed under seal to the Supervising Judge prior to the rehearing, in accordance with his directions.
[108] We grant the NCTR’s request for a stay of the order to prevent the destruction of the SADRE database from which the proposed Static Reports are to be produced, until such time as the Supervising Judge disposes of this issue.
[109] We otherwise dismiss the appeal as it pertains to the Non-Claim Records.
[110] If any party is seeking costs and the parties cannot agree on the disposition of costs, they may make brief written submissions of no more than two pages, plus a costs outline, within seven days of the release of these reasons.
Released: April 1, 2021 “L.R.” “L.B. Roberts J.A.” “M. Jamal J.A.” “J.A. Thorburn J.A.”