COURT FILE NO.: 00-CV-192059CP

DATE: 2020/01/20

ONTARIO

SUPERIOR COURT OF JUSTICE

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 ATHBASCA, 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 WESTMINISTER, 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. FRANCOIS D’ASSISE, INSITUT DES SOEURS DU BON CONSEIL, LES SOEURS DE SAINT-JOSEPH DE SAINT-HYANCITHE, LES SOEURS DE JESUS-MARIE, LES SOEURS DE L’ASSOMPTION DE LA SAINTE VIERGE, LES SOEURS DE L’ASSOMPTION DE LA SAINT VIERGE DE L’ALBERTA, LES SOEURS DE LA CHARITE DE ST.-HYACINTHE, LES OEUVRES OBLATES DE L’ONTARIO, LES RESIDENCES OBLATES DU QUEBEC, LA CORPORATION EPISCOPALE CATHOLIQUE ROMAINE DE LA BAIE JAMES (THE ROMAN CATHOLIC EPISCOPAL CORPORATION OF JAMES BAY), THE CATHOLIC DIOCESE OF MOOSONEE, 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 EPISCOPALE CATHOLIQUE ROMAINE DE LA BAIE D’HUDSON – THE ROMAN CATHOLIC EPISCOPAL CORPORATION OF HUDSON’S BAY, MISSIONARY OBLATES – GRANDIN PROVINCE, LES OBLATS DE MARIE IMMACULEE 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 PERES 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 EPISCOPALE CATHOLIQUE ROMAINE DE GROUARD, ROMAN CATHOLIC EPISCOPAL CORPORATION OF KEEWATIN, LA CORPORATION ARCHIéPISCOPALE CATHOLIQUE ROMAINE DE ST. BONIFACE, LES MISSIONNAIRES OBLATES SISTERS DE ST. BONIFACE-THE MISSIONARY OBLATES SISTERS OF ST. BONIFACE, ROMAN CATHOLIC ARCHIEPISCOPAL CORPORATION OF WINNIPEG, LA CORPORATION EPISCOPALE 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 EPISCOPALE 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

Proceeding under the Class Proceedings Act, 1992

COUNSEL:

• Catherine J. Boies Parker, Q.C. and John Trueman for the Chief Adjudicator
• Catherine A. Coughlan and Brent Thompson, for the Attorney General of Canada
• Stuart Wuttke, Julie McGregor, and Jeremy Kolodziej for the Assembly of First Nations
• P. Jonathan Faulds, Q.C. for the National Administration Committee
• Joanna Birenbaum, for National Centre for Truth and Reconciliation

HEARING: December 19, 2019

PERELL, J.

REASONS FOR DECISION

A. Introduction and Overview.. 4

B. Procedural and Evidentiary Background. 7

C. The Shuttering of the IAP and the Chief Adjudicator’s Proposal for Non-Claim Records. 10

D. Factual Background. 15

1. The Negotiation of the IRSSA.. 15

2. The Truth and Reconciliation Commission. 19

3. The National Centre for Truth and Reconciliation. 19

4. The IRRSA and IAP Records. 20

5. The IAP Oversight Committee. 21

6. The Chief Adjudicator and the Secretariat 22

7. Canada. 24

8. The Supervising Courts. 25

E. Relevant RFD Jurisprudential History about IAP Records. 25

F. The Nature of the Non-Claim Records. 28

1. The Historical and Archival Value of the Claim and Non-Claim Records. 28

2. Statistical Reports. 28

3. Performance Reviews. 29

4. IAP Oversight Committee Records. 29

5. Reports to the Court 30

6. Complaint Records. 30

G. Responses to the Chief Adjudicator’s proposal for the Non-Claim Records. 31

1. Canada’s Position. 31

2. The AFN’s Position. 32

3. The Position of the NAC.. 32

4. The Position of the NCTR.. 33

H. Does the Court Have Jurisdiction to Direct the Disposition of the Non-Claim Records?. 33

I. How Should the Court Exercise its Jurisdiction with respect to Non-Claim Records?. 36

J. The Appropriateness of the NCTR as an Archive for the Non-Claim Records. 38

K. Would the Chief Adjudicator’s Proposal Have Contravened the Orders made in Canada (Attorney General), v. Fontaine [Claim Records]?. 39

L. How Should Static Reports be Treated?. 39

M. How Should the IAP Oversight Committee Records be Treated?. 41

N. How Should the Reports to the Courts be Treated?. 41

O. How Should Complaint Records be Treated?. 42

P. How Should Adjudicator Personal Records be Treated?. 42

Q. How Should Privileged Material be Treated?. 43

R. Conclusion. 44

A. Introduction and Overview

[1] The Chief Adjudicator, Daniel Shapiro, Q.C., brings a Request for Directions (a “RFD”) about how he proposes to dispose of the “Non-Claim Records” pertaining to the Independent Assessment Process (the “IAP”), an aspect of the Indian Residential Schools Settlement Agreement (“IRSSA” or “Settlement Agreement”).[^1] The IAP is the means by which survivors pursue claims for compensation in relation to abuse suffered at what were known as “Indian Residential Schools”.

[2] The Chief Adjudicator has developed a proposal for archiving most of the “Non-Claim Records” with the National Centre for Truth and Reconciliation (“NCTR”), an emanation of the IRSSA. The NCTR has a mandate to archive and store records relating to Indian Residential Schools and it has archived all the records collected by the Truth and Reconciliation Commission (“TRC”), another emanation of the IRSSA.

[3] With revisions, the Chief Adjudicator’s proposal is supported by: (a) the Assembly of First Nations (“AFN”); (b) the National Administration Committee (“NAC”), yet another entity that is an emanation of the IRSSA; and (3) the NCTR.

[4] The AFN plays a political role in advocating on behalf of First Nations. It is a signatory of the IRSSA. It was largely responsible for the creation of the Alternative Dispute Resolution process (“ADR”), which was a predecessor or model for the IAP. The AFN is a member of the NAC.

[5] The IRSSA assigned a role to the NAC in supervising the IRSSA’s implementation. The NAC is comprised of seven representative members, including Canada, the AFN, Inuit Representatives, Church Entities, and three representatives of plaintiffs’ counsel.

[6] In his RFD, the Chief Adjudicator also seeks this court’s specific directions with respect to four sub-categories of Non-Claim Records: (1) Statistical Reports; (2) IAP Oversight Committee[^2] Records; (3) Reports to the Court; and (4) Complaint Records. There are two types of Statistical Reports; namely: (a) “Existing Statistical Reports”; and (b) Final Outcome Statistical Reports, referred to as “Static Reports”. The parties take varying positions about how these sub-categories of Non-Claim Records should be treated.

[7] Canada opposes the Chief Adjudicator’s proposal, arguing that it would require an amendment to the IRSSA, which is beyond this court’s jurisdiction to grant. Canada takes the position that the Chief Adjudicator has exceeded his authority under the IRSSA. Canada asserts that the Non-Claim Records are government records under its exclusive control. Canada further submits that the status quo should not be disturbed and that it would see the fate of the Non-Claim Records determined principally by the Library and Archives Canada Act[^3] and federal privacy statutes.

[8] As will be detailed in the discussion below, this RFD has the Chief Adjudicator, the AFN, NAC, and the NCTR on the one side and with Canada on the other side. Their dispute is all of a legal, political, and ethical dispute that would benefit from the Teachings of the Seven Grandfathers about humility, bravery, honesty, wisdom, truth, respect, and love. I shall attempt to keep these principles in mind, in the purely legal analysis that follows.

[9] Applying the law to the facts of the immediate case has led me to the conclusion that the court should thank the Chief Adjudicator for his proposal but to dismiss his RFD on terms that maintain the status quo until a new proposal for the disposition of the Non-Claim Records to the NCTR can be prepared – not by the Chief Adjudicator, but by Canada. In a sense, this dismissal order is a technical one, somewhat akin to an adjournment, because, I also direct Canada, by no later than June 30, 2020, to bring an RFD for court approval of a proposal for the archiving of copies of Non-Claim Records with the NCTR subject to the principles that I shall set out below.

[10] Therefore, for the reasons that follow:

a. I dismiss the Chief Adjudicator’s RFD.

b. I direct that Static Reports shall not be included in the Chief Adjudicator’s Final Report.

c. With an exception for the Chief Adjudicator’s documents subject to solicitor and client privileged, the Secretariat shall not destroy any documents and the retention and destruction of documents shall be governed by the Library and Archives Canada Act and by Canada’s document retention policies.

d. I direct Canada, by no later than June 30, 2020, to bring an RFD for court approval of a proposal for the archiving of copies of Non-Claim Records with the NCTR.

e. I direct that Canada’s archiving proposal adopt or apply the following general principles:

i. “Claim Records” are to continue to be dealt with in accordance with the Fontaine v. Canada (Attorney General) [Claim Records] decisions.[^4]

ii. Canada will employ the archivists at Libraries and Archives Canada (“LAC”) to designate and assemble a “Non-Claim Records Collection”, copies of which are to be sent to NCTR for archiving.

iii. Copies of Existing Statistical Reports shall be included in the Non-Claim Records Collection.

iv. Static Reports shall be excluded from the Non-Claim Records Collection. (I foreshadow the discussion below to note Canada’s position on this RFD was that the generation of Static Reports would contravene the Orders made in the Fontaine v. Canada (Attorney General) [Claim Records] decisions.)

v. Copies of Oversight Committee Records that are publicly published Minutes of the Oversight Committee shall be included in the Non-Claim Records Collection.

vi. The other records of the Oversight Committee and its ADR predecessor, the “Chief Adjudicator’s Reference Group,” including agendas and document packages, email exchanges and correspondence between committee members and expense vouchers for travel costs shall be excluded from the Non-Claim Records Collection.

vii. The confidential and unpublished Minutes of in camera meetings of the Oversight Committee shall be excluded from the Non-Claim Records Collection.

viii. Redacted copies of Reports to the Court shall be included in the Non-Claim Records Collection. The redactions are to be approved by the Administrative Judges.

ix. Complaint Records shall be excluded from the Non-Claim Records Collection.

x. Adjudicator Personal Records shall be excluded from the Non-Claim Records Collection.

xi. The following types of records are to be excluded from the Non-Claim Records Collection; namely: (1) IAP Personal Information; (2) draft or duplicative records, (3) adjudicator personnel and performance records; and (4) information subject to solicitor-client privilege or litigation privilege. In particular, the Chief Adjudicator’s privileged material shall be excluded from the Non-Claim Records Collection

xii. Where there is any risk that a record could reveal: (a) IAP Personal Information; (b) confidential information; or (c) information subject to solicitor-client or litigation privilege, copies of the record shall be excluded from the Non-Claim Records Collection.

[11] In order to explain these directions, it is necessary to describe and discuss numerous topics including the history of what happened both before and after the IRSSA was signed.

B. Procedural and Evidentiary Background

[12] The signing parties to the IRSSA are: various plaintiffs as represented by three groups of plaintiffs’ counsel (the “National Consortium” and the Merchant Law Group, both of which had brought class actions and “Independent Counsel”, who had not done so), the AFN and the Inuit Representatives; and the defendants, the General Synod of the Anglican Church of Canada, the Presbyterian Church of Canada, the United Church of Canada, approximately 50 Roman Catholic Church entities and Canada.

[13] On dates in December, 2006 and January, 2007, nine courts (collectively, the “Courts”)[^5] approved the IRSSA and issued substantially identical Approval Orders. In March 2007, on consent of the parties, those courts issued identical Implementation Orders. The Courts’ judgments and Approval Orders provide that the Courts shall supervise the implementation of the IRSSA and that the Courts may issue such orders as are necessary to implement and enforce the provisions of the agreement and the judgment. The Court Administration Protocol appended to the Implementation Orders provides that the procedure for obtaining such orders is an RFD.

[14] Because of the role assigned to them under the IRSSA, the Approval Orders, the Implementation Orders, class proceedings legislation and through inherent jurisdiction, the judges of the Courts who are tasked with supervising the IRSSA’s implementation and ongoing administration are referred to as the “Supervising Judges”. I am one such judge.

[15] In Canada (Attorney General), v. Fontaine [Claim Records],[^6] the Supreme Court of Canada considered the treatment of certain “IAP Documents,” which certain documents, I shall hereafter refer to as “Claim Records.” Claim Records and also the Non-Claim Records, which are the subject-matter of this RFD, are subsets of IAP Documents. The disposition of Claim Records having been dealt with and the shutting down of the IAP beginning, the Chief Adjudicator brought an RFD making a proposal for the disposition of Non-Claim Records.

[16] The Chief Adjudicator’s RFD was supported by the affidavit of Roger Tetreault. Mr. Tetreault is the Executive Director of the Indian Residential Schools Adjudication Secretariat (the “Secretariat”). As discussed further below, the Secretariat is a somewhat autonomous or arm’s length department of the Government of Canada that provides administrative support for the Chief Adjudicator and for the IAP component of the IRSSA.

[17] To his affidavit, Mr. Tetreault attached an archival appraisal of various types of Non-Claim Records prepared with the assistance of Edward Tompkins, MA, a professional archivist whom the Secretariat had retained for assistance in developing the Chief Adjudicator’s proposal for the transfer of Non-Claim Records to the NCTR.[^7]

[18] The Chief Adjudicator’s RFD was also supported by the affidavit of Nicole Hansen. She is the Acting Manager of the Business Process Management and Reporting Unit of the Secretariat. In her affidavit, she describes the Secretariat’s Statistical Reports, including the proposed Static Reports, which are a major point of contention on this RFD.

[19] Canada opposed the Chief Adjudicator’s RFD. In responding to the RFD, Canada proffered the affidavit of Shauna Haas. She is the Senior Policy Analyst with the Settlement Agreement and Childhood Claims Branch of Crown-Indigenous Relations and Northern Affairs Canada (“CIRNAC”). Ms. Haas provides Canada’s perspective on the role of the Secretariat and on the Chief Adjudicator’s proposal for the Non-Claim Records.

[20] Canada also proffered the clerical affidavit of Kari Smith. Ms. Smith is an employee of the Department of Justice Canada with Aboriginal and Advisory Legal Services at the Prairie Regional Office (Edmonton). She attaches correspondence and policy documents to her affidavit

[21] At a NAC meeting on November 13, 2019, five of its seven members, including its AFN representative, voted that NAC should participate in this RFD. The Church member and Canada did not vote.

[22] As a preliminary matter on this RFD, Canada objected to the participation of NAC, because after the filing of NAC’s argument, one of its members, the AFN filed a separate argument. Canada submits that without the AFN’s vote, the NAC would not have participated and, therefore, the court must either strike one or the other of the NAC’s or the AFN’s argument or the court should to read down the NAC’s argument to the extent that it differs from the AFN’s or I suppose vice-versa.

[23] In the circumstances of the immediate case, I do not accept Canada’s preliminary argument, although I am sympathetic to Canada’s submission that the NAC should not be used as a means for advancing duplicative or partisan positions.[^8] Instead, I have decided to receive both the NAC argument and the AFN argument. Both were helpful, and as the discussion below will reveal, I have accepted and rejected points of argument made by all of the participants in this RFD.

[24] Returning to the procedural and evidentiary background, the NCTR was granted party status for this RFD on November 14, 2019.[^9] The NCTR supported the Chief Adjudicator’s proposal in the sense that it agreed that the Non-Claims Records should be donated to it, but it went much further than the Chief Adjudicator and submitted that without exception and without redactions, all Non-Claims Records must (nothing voluntary about it) go to the Centre. The NCTR proffered the affidavit of Rachelle Ross. Ms. Ross holds the position of Archivist and Records Manager at the University of Manitoba, where the NCTR is located. Ms. Ross devotes a significant portion of her duties to the NCTR.

[25] The Chief Adjudicator’s “thanks but no-thanks” response in its reply factum was to submit that 86 paragraphs (i.e., paragraphs 7-51, 53-55, 57-91, 94, 95, 99-101) of Ms. Ross’s 101 paragraph affidavit should be struck out as inadmissible opinion evidence or because they are unnecessary, argumentative, speculative, or unsound. The Chief Adjudicator submitted that Ms. Ross was not proffered as an expert witness in accordance with the procedure of rule 53.03 of the Rules of Civil Procedure, and if she is to be regarded as a lay-expert, then given her role for the NCTR and at the University of Manitoba, she was not an independent expert witness but rather a partisan whose opinions should be ruled inadmissible.

[26] I agree that in several respects, the test for the admission of expert evidence[^10] (which for present purposes, I need not elucidate) has not been satisfied in relation to Ms. Ross. I come to this conclusion essentially because I do not need her evidence to form my own opinions about the archival value of the Non-Claim Records and about the largely legal issues associated with the interpretation of what the parties intended under the IRSSA should happen to the Non-Claim Records. And it is true that much of Ms. Ross’s affidavit is argument that ought to appear in counsel’s factum and not in a witness’s affidavit.[^11] In many respects, Ms. Ross goes too far and privileges the principles of archiving over the principles of contract interpretation, and there is more than a bit of the legal tail wagging the dog of how the IRSSA should be interpreted and applied. Further, it is also true that Ms. Ross does not seem to appreciate that the Fontaine v. Canada (Attorney General) [Claim Records] decisions have already compromised the purity or perfection of archival standards in regards to the Claim Records.

[27] This all said, Ms. Ross has impressive credentials and experience as a professional archivist, and she does give useful evidence about the NCTR and about the nature of archiving science in general, and even her opinions about the intent and purpose of the archiving provisions of the IRSSA provide some useful contextual evidence. I, therefore, do not disregard Miss Ross’s evidence in its entirely; rather, I shall accept her factual evidence about the NCTR as true and admissible, but I shall give her opinion evidence about the Non-Claim Records Collection what might be called a high level of legal scepticism.

[28] The NCTR also provided two expert’s affidavits from Trudy Huskamp Peterson, whose affidavits did comply with the procedural requirements of rule 53.03. Ms. Peterson resides in Washington, D.C. She has a PhD in American history. She is a Certified Archivist of the Academy of Certified Archivists and she worked for the U.S. National Archives and Records Administration for over twenty years. From 1993 to 1995, she was the Acting Archivist of the U.S. She has a specialty in human rights and justice-related archives. In what might be regarded as inadmissible oath-helping one of Ms. Ross’s affidavits. Ms. Peterson essentially agreed with Ms. Ross’s evidence about archiving principles but taken together Ms. Peterson’s affidavits are independent evidence about archiving standards of practice.

[29] For the RFD hearing, written submissions or factums were delivered by the Chief Adjudicator, AFN, NAC, NCTR, and Canada.

C. The Shuttering of the IAP and the Chief Adjudicator’s Proposal for Non-Claim Records.

[30] The IAP is nearing completion. The Chief Adjudicator’s completion strategy is that all remaining IAP claims will be resolved by year end 2020 and the Secretariat will be closed by April 1, 2021. The Secretariat has already reduced its staff from 240 in 2015 to 74 as of August 2019.

[31] In preparation for the closure of the Secretariat, there have been consultations with Canada’s ministerial department, Aboriginal Affairs and Northern Development Canada (“AANDC”)[^12](now CIRNAC) and LAC about the disposition of the Secretariat’s records. There were also in camera discussions between the Chief Adjudicator and the IAP Oversight Committee about the disposition of these records.

[32] LAC evaluated the Secretariat’s records and also the records the Secretariat shared with AANDC (now CIRNAC) and issued “Disposition Authorization #2017/013. This authorization identifies the records to be sent to the archives and authorizes AANDC to destroy records with no archival value. AANDC maintains records with no archival value for periods of time for audit, legal and other purposes and then destroys them.

[33] The Chief Adjudicator, however, does not agree with LAC’s plans for the Secretariat’s records. Rather, in this RFD, he proposes something different.

[34] The Chief Adjudicator does agree that “Government Administrative Records,” i.e. those that arise from the Secretariat’s exercise of delegated financial and human resource activities should be managed in accordance with Disposition Authorization #2017/013, i.e., in accordance with Canada’s normal practices.

[35] Further, the Chief Adjudicator acknowledges, as does Canada, that the disposition of Claim Records will be governed by the in accordance with the Fontaine v. Canada (Attorney General) [Claim Records],[^13] and Fontaine v. Canada (Attorney General), [Enhanced Notice Program][^14] decisions. For the present purposes of this RFD, it shall be important to note that pursuant to these decisions, the SADRE database[^15] will eventually be destroyed.

[36] In other respects, however, the Chief Adjudicator disagreed with LAC’s plans for the Non-Claim records and it seems that the IAP Oversight Committee was not able to come to a consensus on the matter of Non-Claim Records to provide advice to the Chief Adjudicator.

[37] It appears that the Chief Adjudicator took matters into his own hands, and in preparation for its eventual closure, he directed the Secretariat to retain a professional archivist to assist in identifying Non-Claim Records of archival value. Edward Tompkins was retained, and the Chief Adjudicator prepared a proposal and brought this RFD.

[38] Generally speaking, it can be said that while the Chief Adjudicator had no problem with Canada’s plans for the administrative documents, he was not satisfied that Canada’s plan for the Non-Claim Records was adequate for the purposes of the goals to be achieved by the IRSSA. The Chief Adjudicator submits that his own proposal for the disposition of the Non-Claims is within his mandate as the leader of the IAP. He submits that his proposal addresses the goals to be achieved by the IRSSA.

[39] The major details of the Chief Adjudicator’s proposal for the disposition of Non-Claim Records are as follows:

a. The proposal with respect to “Non-Claim Records” is based on recommendations of Edwin Tompkins, a professional archivist, who was retained by the Chief Adjudicator to review and assess the records. In his recommendations, Mr. Tompkins stated that records documenting the process by which IRS survivors received redress will be of the highest possible interest to academic researchers, indigenous peoples, and the general public.

b. “Claim Records” are to continue to be dealt with in accordance with the Fontaine v. Canada (Attorney General) [Claim Records] decisions.

c. “Claim Records” are what was described as “IAP Documents” in the Fontaine v. Canada (Attorney General) [Claim Records] decisions. In the Orders, they were defined as follows:

IAP Documents means records, in any medium, specifically generated for use in an IAP Claim and containing IAP Personal Information, and includes any copies of records, in any medium, specifically collected for use in an IAP Claim. For greater clarity, IAP Documents do not include pre-existing records generated or compiled for a purpose other than to be used in the IAP, particularly where those records remain lawfully held by their respective custodians. Without limiting the generality of the foregoing, IAP documents include:

(a) IAP application documents, including IAP Application Forms (as set out in Appendix XIV of Schedule D [of the IRSSA] as well as variations thereof) and any related correspondence or documentation (particularly as related to the matters set out in Appendices I and Il of Schedule D);

(b) IAP Claimants' mandatory documents, within the meaning of Appendix VII of Schedule D, and any related correspondence or documentation;

(c) Canada's mandatory documents within the meaning of Appendix VIII of Schedule D, and any related correspondence or documentation;

(d) Third party documents, including statements by alleged perpetrators or witnesses (as contemplated in Appendices III and IV of Schedule D) and correspondence or documentation relating to the participation of an alleged perpetrator, witness, or Church entity in an IAP Claim;

(e) IAP hearing records, including correspondence or documentation relating to any aspect of the hearing of an IAP Claim, notices of hearing, records of attendance at hearing, confidentiality agreements, audio recordings of hearings, written transcripts of hearings, and correspondence or documentation relating to the scheduling of an IAP hearing;

(f) IAP expert reports and assessments within the meaning of Appendix VI of Schedule l) and any related correspondence or documentation:

(g) IAP Claimants’ legal representation documentation including retainer agreements, notices of withdrawal, legal fees decisions and any related correspondence or documentation:

(h) Other exchanged and used by participants during the conduct an IAP Claim and without limiting the generality of' the foregoing, including future care plans (as to in Appendix VII of' Schedule D), completed release forms under Schedule P to the Settlement Agreement, records relating to previous Indian Residential Schools litigation, formal research requests from adjudicators, and any responses thereto;

(i) Records of adjudicators' decisions relating to IAP Claims, including preliminary decisions by adjudicators on jurisdictional matters, adjudicators' compensation decisions in relation to an IAP Claim as referred to in Appendix XII of Schedule D, and review decisions pursuant to Part III (1) of Schedule D; and,

(j) Other administrative documents relating to any IAP Claim, including correspondence and notes produced by any participant in an IAP Claim.

d. “Government Administrative Records” are to be transferred to Canada.

i. “Government Administrative Records” are records pertaining to activities carried out in accordance with Canada’s financial management policies including human resource management, financial management, information and technology, and procurement processes.

ii. The Chief Adjudicator proposes that Government Administrative Records that arise from the Secretariat’s exercise of delegated financial and human resource actives should be managed in accordance with Canada’s normal practices.

e. “Non-Claim Records” are records pertaining to the operation, management and oversight of the IAP and the former Alternative Dispute Resolution (“ADR”) process that have been assessed as having archival significance.

f. The major categories of the Non-Claim Records Collection are as follows:

i. Records management tools for Non-Claim Records (e.g. archival appraisal and annexes, Secretariat file plan, archival collection inventory, disposition schedule);

ii. Communications products and communications policy, planning and procedure records (e.g., approved communications strategies);

iii. Snapshots of the Secretariat and Notice Program internet sites at the time of Secretariat closure;

iv. Records respecting the Secretariat’s participation in TRC events;

v. Records respecting health and healing services (e.g., the RHSW program);

vi. Chief Adjudicator’s Guidance Papers, Directives, Practice Directions, Updates to Adjudicators, Updates to Counsel, and Administrative Updates;

vii. Adjudicator training and meeting records;

viii. Materials presented to the National Administration Committee (NAC) by the Chief Adjudicator or Secretariat;

ix. Secretariat management committees’ meeting records;

x. Records respecting Secretariat liaison with IAP stakeholders;

xi. Plans and reports for IAP Completion Strategy, Strategic Partnership Strategy, Administration Transfer Post Secretariat and National Outreach Strategy;

xii. Overall Secretariat management policy research and analysis;

xiii. Adjudication Management case management tools, manuals, forms and procedures;

xiv. Outreach and Group IAP policies, plans and procedures;

xv. IAP Final Report; and

xvi. IAP Statistical Reports.

g. In addition to the existing Statistical Reports, a set of Final Outcome Statistical Reports (referred to as “Static Reports”) will be extracted from the database used by the Secretariat for inclusion the IAP Final Report. These Final Outcome Statistical Reports will cross-tabulate specific variables in the SADRE database and be accompanied by an interpretative glossary of terms. For example, the Static Reports would aggregate information about IAP Claimant profiles based on variables such as age, sex, and acts of abuse by province.

h. With some exceptions, the “Non-Claim Records” are to be donated to the NCTR.

i. Four types of records are to be excluded from the Non-Claim Records Collection; namely: (1) IAP Personal Information; (2) draft or duplicative records, (3) adjudicator personnel and performance review records; and (4) information subject to solicitor-client privilege or litigation privilege.

j. Non-Claim Records that are non-archival, privileged, or relating to individual personnel histories are not to be archived and will be destroyed.

k. “Statistical Reports” should be archived at the NCTR.

i. “Statistical Reports” are aggregations of information derived from “IAP Personal Information,” as defined in Fontaine v. Canada (Attorney General) [Claim Records], but which do not disclose IAP Personal Information or identify Claimants.

l. The Statistical Records shall include the “Static Reports” that will be included in the Chief Adjudicator’s Final Report to the Courts.

m. With the consent of the affected individual and the Court Monitor, “Complaint Records” should be archived with the NCTR.

i. “Complaint Reports” are correspondence and notes about complaints from IAP Claimants about persons representing them in IAP hearings.

ii. After a number of serious episodes of misconduct, in 2014, the Supervising Courts appointed an Independent Special Advisor to handle complaint matters. The Complaint Records include information about the Chief Adjudicator’s investigations before the appointment of the Independent Special Advisor.[^16] The Complaint Records include communications with the Independent Special Advisor.

n. The Chief Adjudicator seeks direction with respect to the disposition of “Oversight Committee Records”.

i. “Oversight Committee Records” are: (a) the publicly published Minutes of the IAP Oversight Committee; (b) the not publicly available records of the Oversight Committee and its ADR predecessor the “Chief Adjudicator’s Reference Group,” including agendas and document packages, email exchanges and correspondence between committee members and expense vouchers for travel costs; and (c) the confidential and unpublished Minutes of In Camera Meetings of the IAP Oversight Committee.

o. The Chief Adjudicator seeks direction with respect to the disposition of the “Reports to the Court”

i. “Reports to the Court” are the Chief Adjudicator’s reports submitted through the Monitor to the IRSSA courts not less than quarterly on all aspects of the implementation and operation of the IAP.

p. The Chief Adjudicator will employ commercially reasonable efforts to ensure that the Collection of Non-Claim Records does not include “IAP Personal Information” (as defined in the Fontaine v. Canada (Attorney General) [Claim Records] decisions). The Chief Adjudication will undertake a risk-based review of the Non-Claim Records before transfer to the NCTR. Where there is a risk that a record could reveal IAP Personal Information, it will not be transferred.

D. Factual Background

1. The Negotiation of the IRSSA

[40] Between the 1860s and 1990s, Canada compelled more than 150,000 First Nations, Inuit, and Métis children to attend Indian Residential Schools (“IRS”) operated by religious organizations with the funding of Canada. What happened at the schools was an abomination. For the purposes of assimilation and missionary fervour, the operators of the schools kidnapped, brainwashed, ethnically and culturally cleansed, physically assaulted, sexually assaulted, and otherwise mistreated children who were the school’s students.

[41] In 1999, the Sisters of St. Joseph were given notice that approximately 110 former students at the St. Joseph’s Boarding School alleged that they had been victims of psychological, physical, and sexual abuse while attending the school. In 2000, about 154 former students represented by one law firm filed civil claims in connection with their mistreatment at St. Anne’s Indian Residential School against Canada and others.

[42] By the early 2000s, the tragic history of the schools became public knowledge. Across the country, approximately 18,000 individual actions by former students of the IRSs and numerous class actions were commenced against Canada and the churches that operated the schools.

[43] With the matter now getting public attention, there were extensive negotiations to settle the individual actions and the class actions. Before the negotiations, the AFN had called on Canada to respond to the aftermath of the Indian Residential School System with compensation and with the creation of a full public record of the history of the schools.

[44] Following the launch of the individual and class actions across the country by former students of the Indian Residential Schools, in November 2003, Canada established a National Resolutions Framework, which included a compensation process called the Alternative Dispute Resolution (“ADR”) Process. The ADR Process was the predecessor or the model for the IAP in the IRSSA.

[45] The Chief Adjudicator of the ADR from November 2003 to March 2008 was the Hon. Edward N. Hughes, Q.C. Mr. Hughes reported to a Parliamentary Committee called the Chief Adjudicator Reference Group. A Secretariat was established to administer the ADR Process. The Secretariat was an autonomous branch of federal government department called Indian Residential Schools Resolution Canada (“IRSRC”). Under the ADR Process, when a claim for compensation was ready for hearing, Canada would transfer the file to the Secretariat to schedule and hold a hearing.

[46] In November 2004, the AFN published a report entitled, Report on Canada’s Dispute Resolution Plan to Compensate for Abuses in Indian Residential Schools. In this report, it was stressed that compensation alone would not achieve the goals of reconciliation and healing. A two-pronged approach would be required: (1) compensation; and (2) truth-telling, healing, and public education.

[47] The idea of a truth commission was born of the fact that the majority of the Canadian public did not understand the story of the Indian Residential School system, or appreciate its impacts on Indigenous peoples, individuals, families and communities.

[48] Further, a truth commission was intended to address the fact that the Indian Residential School system was a systemic violation of human rights that had a significant impact on the collective rights of Indigenous peoples.

[49] In May 2005, a political agreement was signed between Canada and the AFN, calling for negotiation of a settlement that would include compensation, healing, and a truth and reconciliation process. A few months later, the AFN became a plaintiff by launching a class action against Canada, and Mr. Phil Fontaine, who was then the AFN’s National Chief, was named as proposed Representative Plaintiff. It was Mr. Fontaine who put the issue of residential schools on the national agenda when in October 1990 he spoke publicly about the abuse that he and his fellow students had experienced at the Fort Alexander Indian Residential School, which was operated by a Roman Catholic missionary order. He shocked Canadians by disclosing that every single boy in his grade three class was sexually abused. Mr. Fontaine called then for a healing process, to make Canada’s Indigenous people whole.

[50] In late November 2005, an agreement in principle was negotiated (the “Agreement in Principle”). Negotiations continued into 2006. There were many issues to negotiate. There were the matters of liability, reparations, compensation, apologies, procedures, releases, and truth and reconciliation. The AFN also vigorously promoted the need for a mechanism that would record fully and publicly the residential school experience, and its impacts on Indigenous peoples.

[51] The call from the AFN for all of compensation, truth, and reconciliation evolved into a truth-telling and public education process. In the negotiations for the IRSSA, determining the mandate of what was to become the Truth and Reconciliation Commission (“TRC”), including the establishment of a national research centre, involved extensive consultations with survivors and their communities, as well as with church representatives, government officials, and international experts.

[52] The AFN sought a comprehensive and accessible record based on human rights principles. The compilation of a true history responded to a right to justice, a personal and collective right to know, and the state’s duty to remember. The AFN sought an archive to ensure that historical records surrounding Indian Residential Schools could not be unilaterally destroyed, altered, or erased by Canada.

[53] At the time of the negotiations, the international human rights standards associated with a right to justice, a personal and collective right to know, the state's duty to remember, the best practices for truth commissions, and the standards for the preservation of records relating to systemic human rights abuses in archives were well established.

[54] The International Council on Archives’ Code of Ethics (1996) and the United Nations Joinet-Orentlicher Principles (1997) are the foundational international standards that inform archival practice when managing records with importance for human rights. Preservation of records relating to systemic human rights abuses in archives, including the preservation of the records of truth commissions was known and understood to be a foundational measure to combat impunity and to respect the "right to know" of individuals and peoples.

[55] In the context of a state’s duty to remember, the words “archive”[^17] and “research centre” have a meaning derived from the Joinet-Orentlicher Principles, approved by the United Nations in 1997and updated in 2005,[^18] which state:

As used in these principles, the word "archives" refers to collections of documents pertaining to violations of human rights and humanitarian law from sources including: (a) national government agencies; (b) local agencies, such as police stations, that were involved in human rights violations; (c) State agencies, including the office of the prosecutor and the judiciary, that are involved in the protection of human rights; and (d) materials collected by truth commissions and other investigative bodies.

[56] The idea of establishing a research centre was derived, in part, from the Royal Commission on Aboriginal Peoples[^19] and from the Law Commission of Canada’s report Restoring Dignity, Responding to Child Abuse in Canadian Institutions.[^20] The Royal Commission’s report recommended a national repository that would act as a clearinghouse of information for researchers and educators.

[57] Volume Three, chapter five of the Royal Commission’s report discussed the need for a records centre, with a focus on the history of residential schools, as follows:

The history of residential schools and of the relocation of Aboriginal people is recorded in government, church, school and corporate archives throughout the country. While their experiences are etched in the memories of thousands of Aboriginal people today, these events are only partially documented. In our discussions of residential schools and relocations in Volume I, Chapters 10 and I l, we recommended that this unique and historically significant information should be collected, preserved and made accessible. We believe that a national Aboriginal documentation centre could provide appropriate leadership by establishing an active program of research and dissemination and by maintaining a suitable facility for such a collection.

[58] The factual nexus of the IRSSA negotiations reveals that the parties intended to establish a comprehensive archive and collection of Indian Residential School records, in accordance with the accepted international and domestic standards and practices for truth commissions and human rights history archiving.

[59] The November 2005 Agreement in Principle adopted all of the key recommendations from the AFN Report, and provided details of the principles, objectives and powers of the TRC. In signing it, Canada and the Churches promised to provide all relevant documents to and for the use of the TRC, subject only to privacy concerns. These records were to be archived in what became the NCTR. It was fundamental that the historical record be under the survivors’ and not Canada’s control.

[60] International human rights standards create a state's duty to remember and remind its citizens of its history, however shameful that history may be. This duty to remember was a feature of the IRSSA. Another feature of the IRSSA was a concern about the privacy, the dignity, and the health and welfare of the survivors of the schools, whose personal stories comprise the shameful history of the schools. There is an extreme tension between these two important features of the IRRSA, a tension that three levels of court addressed in Canada (Attorney General), v. Fontaine [Claim Records].

[61] In achieving the goal of compensation, a problem for plaintiffs and representative plaintiffs was that the claims were intensely private and difficult for the claimants to describe in public. Further, unfortunately, some claimants had been victimized by other students at the Indian Residential Schools (student-on-student abuse) and this was intensely embarrassing and traumatizing both individually and collectively. Moreover, some claimants were both victims and perpetrators of child abuse in the toxic environment of the Indian Residential Schools. In addition, the claimants and sometimes, the perpetrators resided in small, remote communities, and some had never told others about the events in question. Thus, privacy and confidentiality concerns were an extremely important aspect of the negotiations.

[62] The negotiations led to a multiple-court approved settlement of the individual and class actions known as the IRSSA. The IRSSA was entered into and dated May 8, 2006. It was the culmination of over a decade of advocacy on the part of Claimants and Indigenous organizations. While the IRSSA is of historic importance, it is essentially a contract, one that is governed by the law of Ontario.[^21]

[63] The signing parties to the IRSSA were: Canada, as represented by the Honourable Frank Iacobucci; various Plaintiffs, as represented by the National Consortium, the Merchant Law Group, and Independent Counsel; the AFN; Inuit Representatives; the General Synod of the Anglican Church of Canada; the Presbyterian Church of Canada; the United Church of Canada; and 50 Roman Catholic Church entities, including the Sisters of St. Joseph, the Nine Catholic Entities, and the Twenty-Four Church Entities.

[64] The IRSSA is intended to bring about a fair, comprehensive and lasting resolution of the legacy of Indian Residential Schools. The IRSSA aims to promote healing, education, commemoration and truth and reconciliation.

[65] There are four major components to the IRSSA. First, Canada placed $1.9 billion into a trust fund known as the Designated Amount Fund to fund payments of the “Common Experience Payment” (“CEP”) to class members who resided at an Indian Residential School during the class period. Second, the IRSSA established the IAP, under which class members who suffered physical or sexual abuse at an Indian Residential School may claim compensation commensurate with the seriousness of their injuries. Third, the IRSSA established the Truth and Reconciliation Commission (“TRC”) with a mandate to create an historical record of the residential school system to be preserved and made accessible to the public for future study. The fourth component is that the class members released their legal claims in exchange for the benefits of the IRSSA.

[66] Between December 2006 and January 2007, each of the Courts, representing class members from across Canada issued judgments certifying the class actions and approving the terms of settlement as being fair, reasonable, and in the best interests of the class members.[^22]

[67] In Ontario, Justice Winkler (as he then was) certified the action in reasons reported as Baxter v. Canada (Attorney General).[^23]

2. The Truth and Reconciliation Commission

[68] One of the non-compensatory aspects of the IRSSA was the creation of the TRC. Its mandate, in part, was to identify sources and create as complete an historical record as possible of the residential school system and its legacy. The historical record was to be preserved and made accessible to the public for future study and use.

[69] Preserving and telling the history of Indian Residential Schools was fundamental aspect of the IRSSA. The TRC was assigned the task of compiling a historical record of the IRS system, which was to be accessible to the public in the future. Canada and Church entities were obliged to compile and produce historical documents to address the history and ongoing legacy of the Residential School System.

[70] The AFN intended the TRC to serve as a mechanism for acknowledging the experiences of former students and the impacts of those experiences on the students, their families and their communities. The elements of the TRC’s mandate were designed after extensive consultation with survivors and their communities.

[71] The TRC gathered records, held hearings across the country, composed and released its report that contained 94 recommendations toward reconciliation, which were termed “calls to action”.

[72] The TRC oversaw the establishment of the NCTR as the archive for the historical records of the Indian Residential School experience.

[73] Upon completion of its mandate, the TRC transferred its records and the records it collected to the Centre.

3. The National Centre for Truth and Reconciliation

[74] The NCTR was constituted pursuant to section 12 of Schedule “N” to the IRSSA.[^24] The NCTR is mandated to archive and store all records collected by the TRC and other records relating to Indian Residential Schools. The collections are to be accessible to former students, their families and communities, the general public, researchers, and educators.

[75] The NCTR came into being on National Aboriginal Day, June 21, 2013. The NCTR is hosted by the University of Manitoba in partnership with other entities across Canada, including Indigenous organizations, universities and colleges. The Agreements between the TRC and the University of Manitoba commits the NCTR to continuing the spirit and work of truth and reconciliation.

[76] The NCTR is governed in accordance with national and international ethical research and archiving principles, protocols, guidelines, and best practices for Indigenous and human rights research and archiving, including aboriginal principles of ownership, control, access and possession, protocols for Native American archival materials, and the Tri-Council Policy Statement: Ethical Conduct of Research Involving Humans (particularly the chapter on First Nations, Inuit and Métis peoples of Canada).

[77] The NCTR is a dedicated, national institution for the preservation and study of the history of Indian Residential Schools. Its governance structure includes representation of Indigenous people and Indian Residential School survivors, and it adheres to national and international ethical research and archiving principles and guidelines. The NCTR has a mandate to make its collections accessible to survivors, to researchers and educators, and to the public. The NCTR’s mandate and objectives include establishing an archival repository of the Indian Residential Schools that is as complete as possible, including records of the history and legacy of the schools and the remedies applied to address their negative effects.

[78] Records held at the NCTR are governed by a comprehensive information and privacy regime established by two Manitoba statutes, The National Centre for Truth and Reconciliation Act,[^25] and The Freedom of Information and Protection of Privacy Act[^26] (“FIPPA”).

[79] Section 6 of The National Centre for Truth and Reconciliation Act allows NCTR’s Director to enter into written agreements with a donor of records.[^27] These agreements can include a commitment to restrict the disclosure of records of particular sensitivity, notwithstanding the presumptive right of access in FIPPA.

4. The IRRSA and IAP Records

[80] Although the parties to this RFD disagree about its significance, a relevant reference in the IRRSA to IAP records is found in Schedule N, section 11 (the Mandate of the Truth and Reconciliation Commission), which states:

Insofar as agreed to by the individuals affected and as permitted by process requirements, information from the Independent Assessment Process (IAP), existing litigation and Dispute Resolution processes may be transferred to the Commission for research and archiving purposes.

[81] This provision should be read in conjunction with section 12 of Schedule N, which provides that the materials created or received by the TRC will be placed with a national research centre that is accessible to former students, researchers, and the general public. Section 12 states:

A research centre shall be established, in a manner and to the extent that the Commission’s budget makes possible. It shall be accessible to former students, their families and communities, the general public, researchers and educators who wish to include this historic material in curricula.

For the duration of the term of its mandate, the Commission shall ensure that all materials created or received pursuant to this mandate shall be preserved and archived with a purpose and tradition in keeping with the objectives and spirit of the Commission’s work.

[82] Canada and the TRC transferred records to the NCTR by way of Trust Deed dated June 21, 2013. These records include collections from church archives and different federal government institutions. These records became the "Settled Property" of the Trust Deed. The archive at the NCTR was intended to autonomous, independent from Canada, and under the control or supervision of Indigenous peoples.

[83] Conveying the history of Indian Residential Schools was a central aspect of the IRSSA. The obligations that Canada and Church entities undertook included the obligation to compile and produce historical documents to address the history and ongoing legacy of the Residential School System.

[84] Although the IRSSA does not expressly address what should be done with IAP Non-Claim Records, the agreement does not preclude that these records be archived at the NCTR, and the spirit and intent of the IRSSA suggests that these documents along with the documents collected and transferred by the TRC and the documents governed by the Orders made in the Fontaine v. Canada (Attorney General) [Claim Records] decisions, should be archived at the NCTR.

5. The IAP Oversight Committee

[85] As has been noted,[^28] the IAP Oversight Committee is comprised of an independent Chair and eight other members consisting of: two former students, two class counsel representatives, two Church representatives, and two representatives for Canada.

[86] The IAP Oversight Committee has a supervisory mandate in relation to the IAP that has now been largely performed. It is responsible for the recruitment and if necessary, the termination of the Chief Adjudicator, recruitment and appointment of adjudicators, approval of adjudicator training programs, recruitment and appointment of experts for psychological assessments, instructions about the interpretation and application of the IAP, monitoring the implementation of the IAP and making recommendations to the NAC on changes to the IAP as necessary to ensure its effectiveness.

6. The Chief Adjudicator and the Secretariat

[87] Subject to the role assigned by the IRSSA to the IAP Oversight Committee, the Chief Adjudicator, who is appointed pursuant to court Order under the IRSSA, supervises the IAP and the adjudicators that decide IAP Applications.

[88] Pursuant to the terms of the IRSSA, the IAP Oversight Committee appointed Daniel Ish, Q.C. as Chief Adjudicator on September 19, 2007. His appointment was approved by the Courts. After Mr. Ish announced his retirement, Daniel Shapiro, Q.C. was appointed Chief Adjudicator as of July 29, 2013.

[89] The Chief Adjudicator’s duties are set out in the IRSSA’s Schedule “D”, item s i (p. 17). The Chief Adjudicator is responsible for adjudication of IAP claims and is assisted by an administrative apparatus, the Secretariat.

[90] In addition to supporting the Chief Adjudicator in the IAP’s administration, the Secretariat determines whether an IAP claim falls within the terms of the IAP and recruits and approves interpreters. The Secretariat reports to the Chief Adjudicator.[^29]

[91] It was a critical component of the IRSSA that IAP claims be determined a genuinely autonomous adjudicative body similar to a court. In cases examining the role of the IAP, the Ontario Court of Appeal echoed the concerns of Justice Winkler (as he then was) concerning the need for impartiality and neutrality in the operation of the IAP. The Court of Appeal described this aspect of the IRSSA as follows:[^30]

[173] A structure was therefore established to provide the necessary level of autonomy. At the top of the structure is the Chief Adjudicator of the Secretariat, who is an officer of the court, appointed pursuant to court order under the IRSSA. The Chief Adjudicator is responsible for the supervision of the IAP and of the adjudicators who decided IAP applications. The Secretariat supports and reports to him. The Chief Adjudicator is accountable to the court.

[92] The Court of Appeal was echoing Justice Winkler’s analysis in Baxter v. Canada (Attorney General) that the IRSSA must be “implemented and administered in a court supervised process and not subject to the direction of the defendant [i.e., Canada] either directly or indirectly.” Justice Winkler stated:[^31]

Those implementing the settlement must: ultimately report to and take direction, where necessary, from the courts and not from the government … it cannot be the case that the “administrator”, once directed by the courts to undertake a certain task, must seek the ultimate approval from Canada. The administration of the settlement will be under the direction of the courts and they will be the final authority. Otherwise, the neutrality and independence of the administrator will be suspect and the supervisory authority of the courts compromised.

[93] Canada through AANDC provided the human resources and the organization infrastructure for the Secretariat.

[94] This phenomenon of an entity designed to be independent being resourced and organized by its parent organization has been a source of tension that explains in part the problems of the immediate RFD, where the Chief Adjudicator through the Secretariat has designed a proposal for the disposition of records over which Canada asserts its exclusive sovereignty and authority.

[95] The Secretariat began in 2007 as a branch of the Office of Indian Residential Schools Resolution Canada, a government department that in 2008 was integrated with the Department of Indian Affairs and Northern Development to become AANDC.[^32] Although for most of the IAP’s administration, the Secretariat was a branch of AANDC (now CIRNAC), it is autonomous with respect to its day to day administration of the IAP. (For the purposes of these Reasons for decision, I shall continue to refer to AANDC rather than its new name, CIRNAC.)

[96] The Secretariat is an office within a department, and as such is also a “department” for the purposes of Schedule I of the Financial Administration Act[^33] and for the purposes of the Auditor General Act.[^34] And it falls within the ambit of the “public service” under the Public Service Employment Act[^35] and the Federal Public Sector Labour Relations Act.[^36] It is a “government institution” for the purposes of Schedule I of the Access to Information Act[^37] and of the Schedule to the Privacy Act,[^38] and thus it is a government institution for the purposes of the Library and Archives Canada Act.[^39] Furthermore, it is part of the “Crown” for the purposes of the Crown Liability and Proceedings Act.[^40]

[97] Save for specific financial, funding, auditing and human resource matters, the Secretariat is under the direction of the Chief Adjudicator and independent from the AANDC (now CIRNAC). The Secretariat’s employees work in separate office space with separately keyed entrances. The Secretariat does utilize AANDC’s electronic records system, but it maintains separate paper files from AANDC.

[98] Secretariat records are separate from AANDC’s records, except where operational requirements require sharing. The paper and electronic records held by the Secretariat are governed by a formal “IRSAS File Plan.” The records are divided into three categories: (a) Claim Records; (b) Non-Claim Records, and (c) Government Administrative Records.

[99] The Secretariat operated under the Department Policy on Information Management. The Policy requires each employee to handle departmental information in a manner that facilitates access while ensuring privacy and security requirements are met.

[100] Since 2003, the Secretariat has created records in support of its role in the administration of first the ADR and latterly the IAP. The Secretariat uses SADRE[^41] database to case-manage IAP claims.

[101] SADRE was developed by AANDC (now CIRNAC) for the ADR and later for Common Experience Payments (“CEP”) the IAP under the IRSSA and to assist Canada in its adversarial role in IAP hearings.

[102] SADRE is designed, however, to ensure the adjudicative independence of the Chief Adjudicator and the autonomy of the Secretariat. The requisite separation is achieved through the design of the SADRE database software. As a result, some information is shared, but some information is accessible only by the Secretariat and some information is accessible only by Canada through AANDC.

[103] In its administrative role in relation to the IAP, the Secretariat has used the SADRE database and software to plan, monitor, manage, and report on the progress of the resolution of IAP claims. The Secretariat has used SADRE to prepare Statistical Reports which have been disseminated to the IAP Oversight Committee and to the Supervising Courts. Some Statistical Reports have been disseminated to the public by postings on the Secretariat’s web site and in the Chief Adjudicator’s Annual and Quarterly Reports.

[104] Canada also publishes statistical information about IAP claims on its website using the SADRE database.

[105] The Statistical Reports provide an aggregation of data that does not identify individual Claimants or contain IAP Personal Information. The Statistical Reports do not identify or provide information that could lead to the identification of a Claimant, alleged perpetrator, or any other affected individual in respect of an ADR or an IAP claim.

[106] As required by the Implementation Orders, the Chief Adjudicator has submitted quarterly Court Reports beginning with the report for the fourth quarter of 2007. The Secretariat assists in the preparation of the reports and in doing so accesses the SADRE database.

[107] The Chief Adjudicator has not made these reports public nor shared their content with the IAP Oversight Committee nor any party to the IRSSA except as specifically directed by the Supervising Courts. Some of the reports (particularly some that predate the Joint Direction referenced in footnote 15) identify claimant counsel in connection with complaints and investigations in relation to IAP claims.

7. Canada

[108] Canada, which is defined in the IRSSA to mean the Government of Canada,[^42] was a party defendant to the class actions and individual actions that were settled by the IRSSA and a signatory to it. CEP Applications are administered and adjudicated at first instance by Canada. Canada defends IAP applications, which are a sui generis inquisitorial proceeding.

[109] With respect to the infrastructure of the IRSSA, it should be noted that Canada has a role in administering the billions of dollars of settlement funds that it was contributing, and it also has an adversarial role in that it can challenge IAP claims.

[110] To manage this obvious conflict of interest, as noted above, it was a critical component of the IRSSA that the IAP constitute a genuinely autonomous adjudicative body similar to a court and subject to court supervision.

[111] As a department of Canada, AANDC (now CIRNAC) is subject to the Library and Archives of Canada Act.[^43] Under this statute the Library and Archives of Canada (“LAC”) is a branch of the federal public administration presided over by a Minister and under the direction of the Librarian and Archivist. Under the Act, “government records” may only be destroyed with the written consent of the Librarian and Archivist. Government records with historical or archival value as determined by the Librarian and Archivist must be transferred to LAC. LAC has unique and extensive expertise in preserving government records subject to access and privacy considerations.

[112] As may be gathered from the descriptions above, Canada’s, LAC’s, and AANDC’s relationships to the Chief Adjudicator and the Secretariat are complicated.

8. The Supervising Courts

[113] As has been noted above, the Courts approved the IRSSA on dates in December 2006 and January 2007, on substantially identical terms. On March 8, 2007, the Courts issued the Implementation Orders, again on substantially identical terms.

[114] Both the judgments of the courts and the Approval Orders provide that “this Court shall supervise the implementation of the Agreement and this Judgment and may issue such orders as are necessary to implement and enforce the provisions of the IRSSA.”

[115] The Supervising Courts have maintained an active and ongoing role in supervising, implementing, and administering the IRSSA. They do so pursuant to the terms of the IRSSA, the Courts’ Approval Orders, their Implementation Orders, and the Court Administration Protocol, which was appended to the Implementation Orders.

[116] The Court Administration Protocol required each of the courts to designate one of its members to act as a “Supervising Judge”. In addition, the courts were obliged to designate two Administrative Judges from among the nine “Supervising Judges”; one “Eastern Administrative Judge” and one “Western Administrative Judge”.

[117] Since September 2013, I have been the Eastern Administrative Judge and the Ontario Supervising Judge. My colleague, Justice Brenda Brown of the British Columbia Supreme Court, has served as the Western Administrative Judge and the British Columbia Supervising Judge since 2009.

[118] The Implementation Orders also appointed a lawyer to act as legal counsel to and for the courts to assist the Courts in their supervision over the Settlement Agreement’s implementation and administration. Since 2013, Brian Gover has been Court Counsel under the IRSSA.

E. Relevant RFD Jurisprudential History about IAP Records

[119] In 2013, in Fontaine v Canada (Attorney General) [TRC Documents],[^44] Justice Goudge acting as an administrative judge under the IRSSA considered Canada’s obligations to furnish the TRC with records under Schedule “N” of the IRSSA. He determined that copies of some documents should be provided to the TRC. However, Justice Goudge determined that Canada was not required to deliver material to the TRC regarding: (a) Canada’s response to Indian Residential Schools litigation; (b) the Prime Minister’s apology; and (c) the IAP compensation scheme. At paragraph 99 of his decision, he stated:

99. In short, in my view, the legacy mandate of the TRC does not extend to Canada's responses to the IRS experience or an evaluation of their adequacy. Thus, Canada's obligation to provide documents to the TRC relevant to its legacy mandate does not extend this far either.

[120] I pause here to note that Justice Goudge’s decision dealt with document production to the TRC and the decision does not address how Claim Records and Non-Claim Records being administered by the Secretariat should be treated under the IRSSA. The case law about those types of documents began the next year.

[121] In 2014, the Chief Adjudicator brought an RFD seeking direction with respect to the disposition of Claim Records once they were no longer needed for the administration of the IAP.[^45] There was also a companion RFD brought by the TRC. These RFDs led to the Fontaine v. Canada (Attorney General) [Claim Records] decisions.[^46]

[122] The overall tenor of the Fontaine v. Canada (Attorney General) [Claim Records] decisions was that after a retention period of fifteen years, Claim Records would be destroyed, but Claimants would have the overriding right to have their personal records archived at the NCTR instead of being destroyed. A notice program was to be developed to let survivors know about their rights to archive their stories with the NCTR. At another RFD hearing, I approved the notice program. See Fontaine v. Canada (Attorney General), [Enhanced Notice Program].[^47]

[123] The 2014 RFD was concerned with a subset of IAP documents and records. For the purpose of the Canada (Attorney General), v. Fontaine [Claim Records] decisions, “IAP Claim,” “Personal Information” and “IAP Personal Information,” were defined as follows:

“IAP Claim” means a claim under the IAP, including the Negotiated Settlement Process.

“Personal Information” means information that identifies an individual or that, alone or in combination with other available information, could permit or lead to the identification of an individual.

“IAP Personal Information” means any Personal Information about a Claimant, alleged perpetrator or other affected individual in respect of an IAP Claim that is obtained through the administration of an IAP Claim, and includes the fact that an identifiable individual is a Claimant, alleged perpetrator or other affected individual in respect of an IAP Claim.

[124] In the formal Orders for the Canada (Attorney General), v. Fontaine [Claim Records] decisions, the definition of “IAP Documents” is what I have been describing in the immediate case as “Claim Records.” In these Reasons for Decision, the full definition of “IAP Documents” is set out above, in Section C (The Shuttering of the IAP and the Chief Adjudicator’s Proposal for the Disposition of Non-Claim Records) and I will not repeat it here.

[125] At first instance in the 2014 Canada (Attorney General), v. Fontaine [Claim Records] RFD, I approved the Chief Adjudicator’s proposal that Claim Records be destroyed unless the Claimant requested that the records be archived with the NTRC. With some variation, my decision was upheld by the Court of Appeal[^48] and the Supreme Court of Canada.[^49] For present purposes, paragraphs 1 and 4 of the 2014 Order are particularly pertinent; they stated:

IAP Documents and IAP Personal Information

1. THIS COURT ORDERS AND DECLARES that IAP Documents and IAP Personal Information are private and confidential and may not be used or disclosed by anyone for any purpose other than resolving IAP Claims and paying compensation, for the limited purposes of prosecuting criminal or child protection or lawyer regulation proceedings, or as permitted by this Order and any other Orders made by the Supervising Courts in the course of implementation of the Settlement Agreement. IAP Documents shall not be retained for archiving or made available for research or statistical purposes, except as permitted by Paragraphs 2(c) or 4 of this Order.

2. AND THIS COURT ORDERS that the Chief Adjudicator shall retain IAP Retained Documents held by the Chief Adjudicator and the Secretariat for a 15-year Retention Period under the following conditions:

(a) Before the end of the Retention Period. a Claimant may consent to any of the IAP Redacted Documents in respect of his or her claim being archived at the NCTR;

(b) A Claimant's consent to archiving under Paragraph 4 (a) must be express, informed, voluntary and written:

(c) On receiving a Claimant's consent under Paragraph 4 (a), the Chief Adjudicator shall identify the relevant IAP Retained Documents, determine if Personal Information about all alleged perpetrators or other affected individuals in respect of an IAP Claim can be reasonably redacted from them and, if so, redact the IAP Retained Documents and transfer the resulting IAP Redacted Documents to the NCTR;

[126] In my Reasons for Decision in Fontaine v. Canada (Attorney General) [Claim Records] decision, I recognized the historical value of Non-Claim Records, and I took care that my decision about the destruction of Claim Records not be overbroad and capture these other historically important records. I stated at paragraphs 376 and 377 of my decision:

376. The court’s Destruction Order should not be overbroad, and the Destruction Order should not apply to NAC, OC, Chief Adjudicator, AANDC, SAO and Department of Justice documents simply because they are related to the IAP.

377. The IAP is itself now a part of the history of Canada, and the court’s Destruction Order needs to focus on the personal information of the Claimants and not be overbroad.

F. The Nature of the Non-Claim Records

1. The Historical and Archival Value of the Claim and Non-Claim Records

[127] At the risk of stating the obvious, the IAP and the actors and institutions associated with it are now part of the history and the legacy of Indian Residential Schools.

[128] The leadership and organization of the IAP and how decisions were made regarding claims, internal operations and systems designed to support the IAP are largely unknown to Canadians. These events should not be lost to history. As the philosopher George Santayana famously wrote, “Those who cannot remember the past are condemned to repeat it.”[^50] Recording the history of the IAP is necessary for reconciliation and to safeguard against the occurrence of similar travesties.

[129] The contributions and conduct of the Chief Adjudicator, the IAP Oversight Committee and the Secretariat had an impact which must be understood by future generations. Furthermore, the Non-Claim Records are important for designing future compensation schemes or processes.

[130] In 2010-2011, LAC undertook an appraisal of the Secretariat’s records and determined that records relating to strategy, policy, and adjudication and the overall management of the IAP and the ADR processes had enduring value and should be archived.

[131] Recently, Mr. Tompkins, the archivist retained by the Secretariat, conducted a review of the Secretariat’s records. Although the record on the RFD did not include a report prepared by him, an archival assessment to which he apparently contributed was attached to Mr. Tetrault’s affidavit. That assessment stated:

The Secretariat has dealt with one of the most complex and difficult subjects in Canada’s recent past: the legacy of the residential schools system. The intersection of Canada, non-Indigenous Canadian society, and Canada’s Indigenous peoples, whether they be First Nations, Inuit or Métis, of a historical or contemporary nature, is of interest to a wide range of academic researchers, to Indigenous peoples themselves, and to the general public. Archival Non-Claim Records document the process whereby Survivors sought and received redress via the IAP. They will be of the highest possible interest as they represent a unique and complete body of records on this subject and there will be extensive academic and public interest in archival Non-Claim Records transferred to the NCTR.

2. Statistical Reports

[132] The IAP Secretariat prepared numerous Statistical Reports that report on the implementation and administration of the IAP. These reports are not Claim Records and do not contain IAP Personal Information. The Statistical Reports were used to plan, monitor and manage the IAP and to report to the Supervising Courts on its administration.

[133] Statistical Reports contain aggregated data that has been scrubbed of identification information. In other words, the Statistical Reports do not contain identifying and quasi-identifying attributes (data suppression), or if there are personal information indicators, such age or home province, the information is reported in the aggregate (data generalization).

[134] Put differently still, the Statistical Reports do not contain “information that identifies an individual or that, alone or in combination with other available information, could permit or lead to the identification of an individual; i.e., they are not documents subject to the Fontaine v. Canada (Attorney General) [Claim Records] Orders.

[135] Many of the Secretariat’s Statistical Reports have already been made available to the public. The Chief Adjudicator’s Annual Reports to the IAP Oversight Committee and the IAP Completion Strategy, both of which contain Statistical Reports, are posted on the IAP Secretariat’s website.

[136] The Chief Adjudicator is of the view that these Statistical Reports should be archived at the NCTR, but because some concern was expressed about whether this should occur, he seeks the court’s direction on the issue.

[137] Particularly contentious is the matter of the Static Reports, which, as noted above, are a set of Final Outcome Statistical Reports to be extracted from the SADRE database used by the Secretariat for inclusion in the Chief Adjudicator’s IAP Final Report.

3. Performance Reviews

[138] The Chief Adjudicator’s proposal would exclude adjudicator performance reviews. It was part of the administration of the IAP that the Chief Adjudicator and the IAP Oversight Committee supervised the work of the adjudicators.[^51] The individual adjudicators were evaluated for such matters as: (a) knowledge of and sensitivity to aboriginal culture and history; (b) knowledge of and sensitivity to sexual and physical abuse issues; (c) knowledge of personal injury law; (d) knowledge of damages assessment; (e) ability to interview or examine witnesses and (f) ability to elicit useful evidence in a concise manner.

4. IAP Oversight Committee Records

[139] As noted above, the Chief Adjudicator reports to the IAP Oversight Committee. The Chief Adjudicator, the IAP Executive Director, and the IAP Senior Policy and Strategic Advisor attend IAP Oversight Committee Meetings. The IAP Secretariat has a set of records on the activities of the IAP Oversight Committee and its ADR predecessor, the Chief Adjudicator’s Reference Group.

[140] According to the archival assessment appended to Mr. Tetreault’s affidavit, Mr. Tompkins, the Secretariat’s contracted archivist, assessed the IAP Oversight Committee records as having archival value.

[141] Some of the records, namely the Minutes of IAP Oversight Committee meetings are already available to the public as they have been published on the Secretariat’s web site.

[142] However, some of the IAP Oversight Committee Records, particularly those relating to the Committee’s in camera sessions, arose in a confidence that they would not be disclosed. These records have not been available to the public.

[143] The IAP Oversight Committee Records also include other material not normally made public, such as agendas, document packages, and emails. These records include sensitive personal information about adjudicators’ performance, complaints against claimant counsel and others, and information that is subject to solicitor-client privilege, litigation privilege, and/or common interest privilege.

[144] The IAP Oversight Committee Records contain Statistical Reports that were provided to the Committee to support its work. Some of these reports are similar or identical to reports made available to the public, while others are not.

[145] The Chief Adjudicator requests direction from the court on the disposition of his and the Secretariat’s copies of the IAP Oversight Committee Records.

5. Reports to the Court

[146] The Implementation Order made in March 2007 requires the Chief Adjudicator to report directly to the courts through the Monitor not less than quarterly on all aspects of the implementation and operation of the IAP. These Court Reports have been produced for every quarter since the quarter ending December 31, 2007. The Court Reports contain Statistical Reports and (particularly in the period pre-dating the November 2014 Joint Direction[^52]) information about complaint records and investigations of claimant’s counsel.

[147] According to the archival assessment appended to Mr. Tetreault’s affidavit, the Secretariat’s contracted archivist, Mr. Tompkins, was of the view that the Court Reports were of archival value.

6. Complaint Records

[148] The IAP Secretariat has in its possession “Complaint Records”. These Non-Claim Records include information about complaints and investigations into persons acting for claimants in connection with the IAP. These Complaint Records contain personal information and allegations against individuals. Some of the information has not been verified or corroborated or tested in court or administrative proceedings. In some instances, the allegations have been found to be unfounded following investigation or court or tribunal hearings.

[149] The Complaint Records contain sensitive personal information. As noted above, archiving pursuant to Schedule N requires the consent of “the individuals affected.” In addition, the approval of the Court Monitor would be required for any archiving of the Complaint Records.

[150] In this last regard, on November 25, 2014, the Supreme Court of British Columbia and the Ontario Superior Court of Justice made a Joint Direction which adopted an “Administrative Protocol for Addressing and Managing Complaints related to the Integrity of the Independent Assessment Process,” which was attached as Appendix “A” to the Joint Direction.[^53][^54] The Supervising Judges appointed an Independent Special Advisor to handle complaint matters. Orders implementing the Administrative Protocol were taken out in both British Columbia and Ontario.

[151] The Administrative Protocol contained the following provisions regarding confidentiality:

27. Unless the Court Monitor’s prior written approval is obtained, the Secretariat, and the Chief Adjudicator shall not

a. publish or cause to be published in any manner whatsoever, or,

b. report to any person, entity, committee, or body other than the Court Monitor or the ISA,

information of any kind pertaining to a Complaint, or to any action of the ISA or the Court Monitor in relation to a Complaint, while such matter remains the subject of a Complaint, investigation, or legal proceeding.

28. The Court Monitor shall review all publications made by the Secretariat or the Chief Adjudicator, including electronic publications, which contain references to Complaints and actions taken in relation thereto, in order to determine the suitability thereof having regard to this Protocol and to advise the publisher of any publications that must be removed, retracted, or revised.

29. Following such advisement by the Court Monitor, as referred to in clause 28, the implicated publisher shall forthwith remove, retract, or revise such publications as directed by the Court Monitor.

G. Responses to the Chief Adjudicator’s proposal for the Non-Claim Records

1. Canada’s Position

[152] Canada submits that the court’s supervisory jurisdiction is engaged only by the Chief Adjudicator’s excess of authority in relation to his proposed disposition of the Non-Claim Records and that the court should not make any order other than a declaration that the Chief Adjudicator’s disposition plan is null and void. Canada says that the disposition of these documents is governed by Access to Information Act,[^55] Library and Archives of Canada Act,[^56] and the Privacy Act.[^57] It appears that Canada would archive some of the Non-Claim Records at LAC.

[153] However, under that legislation, Canada would have an exclusive, comprehensive and unsupervised discretion over the disposition of the Non-Claim Records. Canada is under no obligation to archive government documents. The documents may be kept and used by Canada. The documents could be retained in a government department indefinitely. The documents may be selectively archived with the LAC or donated to the NCTR or to another archive.

[154] As already noted above, Canada did produce a proposed plan prepared by LAC in 2012. The proposed plan is entitled: Terms and Conditions for the Transfer of Information Resources of the Indian Residential Schools Adjudication Secretariat. It addresses what would be a subset of what the Chief Adjudicator designates as Non-Claim Records. As noted above, the Chief Adjudicator submits that this subset of documents is insufficient to do justice to the needs of the historical record.

[155] Putting aside Claim Records, which was the subject matter of the Fontaine v. Canada (Attorney General)[Claim Records] decisions, LAC proposed to archive: (a) one copy of each guide/flyer created by the Secretariat to provide information to claimants;” (b) information resources that relate to strategy, policy, and decision-making regarding the adjudication of the IAP and ADR process; and (c) information resources that relate to the strategy, policy, and decision-making regarding the overall management of the IAP and the ADR process. The rest of the IAP documents would be left of to be disposed of as Canada might decide. Canada has not described or explained what it would do with the balance of the documents.

[156] Canada submits that adjudicator personnel and performance records should not be included in the categories of Non-Claim Records. It says that it may wish to audit the work of adjudicators and asserts that it will require these records to defend itself in possible future litigation

2. The AFN’s Position

[157] The AFN submits that the court has the authority to determine how the Non-Claim Records are to be treated, and it submits that Non-Claim Records should be archived at NCTR.

[158] The AFN submits that the Centre has the appropriate mandate and adequate information and privacy protections for this additional collection of documents. It submits that the Non-Claim Records are an important part of the historical record. It submits that future generations need to have full understanding of how IAP compensation was addressed.

[159] The AFN submits that Statistical Reports, including those prepared in the future as the IAP is wound-up, i.e. the Static Reports, should be archived at the Centre.

[160] The AFN further submits that Oversight Committee Records, Complaint Records, and Reports to the Court should be archived at the Centre without redaction save for redactions to protect IAP Claimants identities.

[161] The AFN asks that adjudicator personnel and performance records be added to the categories of Non-Claim Records. It submits that this information will illuminate cases that may have been wrongly decided and this will ensure accountability.

3. The Position of the NAC

[162] NAC submits that the court has the authority to determine how the Non-Claim Records are to be treated and it submits that Non-Claim Records should be archived at NCTR.

[163] The NAC makes the following submissions concerning documents pertaining to the IAP Oversight Committee: (a) publicly available minutes, including their agendas, document packages, and other related records may be donated without condition; (b) minutes of in camera meetings and associated documents may be donated subject to: (i) an embargo period; and (ii) if the topic was a complaint review, then, prior to donation to the NCTR, personal information concerning legal counsel, adjudicators or others should be redacted, unless the information has become public information.

[164] The NAC submits that the Chief Adjudicator’s Court Reports are of high archival value. However, due to their nature and contents, they warrant special handling. The NAC proposes that the donation of Court Reports be approved provided: (a) the Reports are redacted prior to donation as directed by the court; and (b) the Reports be subject to an embargo against access for such period as the court may determine.

[165] The NAC submits that redacted Complaint Records should be archived at the NCTR after the complaint, investigation, or legal proceeding has been completed. The NAC submits such records are a significant aspect of the IAP process and reflect the efforts of the Chief Adjudicator and the Secretariat, as well as the parties, to maintain the integrity of the IAP and to address a significant problem that arose in connection with the IAP. The NAC submits, however, that Complaint Records be redacted of: (a) any information that might identify the complainant; (b) any information that might identify the subject matter of the complaint unless the complaint was the subject of court or other public proceedings in which that person was identified.

4. The Position of the NCTR

[166] The NCTR submits that the court has the authority to determine how the Non-Claim Records are to be treated.

[167] As may be noted, the Chief Adjudicator proposes that some documents be destroyed or not transferred to the NCTR. The NCTR argues that everything with archival value, which is most everything in the Non-Claim Records, should be archived with the Centre, including all of the IAP Oversight Committee records. And, it submits that the active SADRE database be transferred to the Centre. It argues that this material is of enormous importance and transferring the data would not breach the Fontaine v. Canada (Attorney General) [Claim Records] decisions. It asks the court to direct that additional Static Reports be generated for the Chief Adjudicator’s final report.

[168] Without any supporting case law authority, the NCTR argues that the Chief Adjudicator is under a common law obligation to archive all the Non-Claim Records with the NCTR, including privileged records or records received or originating in confidence. It submits that the transfer of any privileged records can be protected by the records custodian by access restrictions in accordance with standard archival practice.

[169] The NCTR asks that adjudicator personnel and performance review records be added to the categories of Non-Claim Records. It submits that these records will provide a systemic glimpse into aspects of adjudicator decision-making and that the NCTR can respond to privacy concerns. The NCTR acknowledges that the names and personal identifying information of the individual adjudicators is sensitive information but says that it will robustly protect individual privacy under the National Centre for Truth and Reconciliation Act and the Freedom of Information and Protection of Privacy Act (“FIPPA”) and that no further restrictions are necessary, required, or appropriate.

[170] The NCTR submits that Complaint Records can and should be archived with it without redaction save for redactions to protect the identities of IAP Claimants. It submits that archiving these documents would not contravene the Fontaine v. Canada (Attorney General) [Claim Records] decisions or the November 2014 Joint Direction.

H. Does the Court Have Jurisdiction to Direct the Disposition of the Non-Claim Records?

[171] With the above background, it is now possible to address the issues raised by the Chief Adjudicator’s RFD. The first issue is the contentious issue of whether the court has the jurisdiction to direct the disposition of the Non-Claim Records.

[172] The Chief Adjudicator, the AFN, the NAC, and the NCTR agree that the court has the jurisdiction to approve and to give directions with respect to scheme proposed by the Chief Adjudicator. Canada disagrees.

[173] In Canada (Attorney General), v. Fontaine [Claim Records], the Supreme Court of Canada described the jurisdiction of those tasked with overseeing the IRSSA’s implementation and administration - including the courts’ directions regarding disposition of Claim Records in the following way:

31. […] Supervising judges, significantly, have administrative and supervisory jurisdiction over the implementation and administration of the IRSSA and can, among other things, hear requests for directions [RFDs]. If, therefore, the proper administration and implementation of the IRSSA necessitates direction on the handling of the IAP Documents, supervising judges are empowered to give that direction.

32. These broad powers are conferred upon supervising judges by the orders which approved and implemented the IRSSA […] They are also supported by class action legislation, which provides that courts must have generous discretion to make orders and impose terms as necessary to ensure a fair and expeditious resolution of class actions (see, e.g., Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 12; Endean v. British Columbia, 2016 SCC 42, [2016] 2 S.C.R. 162, at para. 38). It follows, particularly given the nature of the IAP and the IAP Documents, that the supervisory role in implementing the terms of the IRSSA included making directions regarding disposition of the IAP Documents at the conclusion of the IAP.

33. […] Further, in any instance where the scope of superior courts’ powers granted by class action legislation does not expressly contemplate certain supervisory functions, superior courts retain residual supervisory powers under their inherent jurisdiction. Removing the inherent jurisdiction of superior courts requires “clear and precise statutory language” […]

[174] Although the disposition of the Non-Claim Records to the NCTR is not a topic specifically considered in the IRSSA, the transfer of documents and records to the NCTR is permitted under Schedule N of the IRSSA.

[175] Canada, however, submits that the court does not have jurisdiction and that the Non-Claim Records are in the possession of a government institution, in this case the Secretariat, and therefore the Non-Claim Records may only be dealt with pursuant to the statutory regime that governs government documents. The fulcrum submission in Canada’s argument is that the Non-Claim Records are documents under the control of a government institution.

[176] I cannot accept that Canada alone should determine how the Claims Records and the Non-Claim Records of the IAP should be dealt with. To do so would be inconsistent with the nature of the IRSSA as a negotiated agreement that binds Canada and that was approved by the courts across the country, implemented by a Committee of the parties (the NAC) and subject to ongoing court jurisdiction. To hold that the court lacks jurisdiction would be an abdication of a responsibility that the Supervising Courts took on when they approved the IRSSA.

[177] Fundamentally, and as was the case in the Supreme Court of Canada’s decision Canada (Attorney General), v. Fontaine [Claim Records],[^58] it is not necessary to decide whether the Non-Claim Records are under the control of a government institution because the court’s supervisory role in implementing the IRSSA overrides Canada’s control over the documents and empowers the court to make orders regarding the disposition of the IAP documents regardless of whether or not they are government records. In Canada (Attorney General), v. Fontaine [Claim Records],[^59] the Supreme Court of Canada stated at paragraph 34 of its decision:

34. In light of this conclusion, it is unnecessary to determine whether the IAP Documents are under the control of a government institution, as Canada argues. The courts’ supervisory role in implementing the IRSSA allows them to make orders regarding the disposition of the IAP documents regardless of whether or not they are government records.

[178] The court has supervisory jurisdiction and an ongoing obligation to administer the IRSSA to ensure that Claimants are gaining the full benefits of the settlement agreement.[^60] The disposition of IAP records, be they Claim Records or be they Non-Claim Records, is a matter of administering the IRSSA.

[179] Moreover, the IRSSA itself contemplates the voluntary archiving of records from the IAP and the preservation of as comprehensive a historical record as possible, subject to privacy concerns. In other words, both in letter and in spirit, the IRSSA envision the Non-Claim Records be archived at a national centre that is independent of Canada’s exclusive control. The fact that the Secretariat may in some respects be a government department does not mean the records it created or possesses are outside the supervisory jurisdiction of the court.

[180] Canada submits that the IRSSA would require amendment to authorize the Chief Adjudication to have control over Secretariat held records. I cannot accept this submission for two reasons. First, as was the case when the courts made the orders in the Fontaine v. Canada (Attorney General) [Claim Records] decisions, they were not amending the IRSSA, they were implementing and administering it. Second, the Chief Adjudicator is not exercising control over the fate of the Secretariat held Non-Claim Records; it is the court that is exercising control.

[181] At paragraphs 154-164 of my decision in Fontaine v. Canada (Attorney General) [Claim Records], I explained that there several sources of the court’s jurisdiction over Claim Records and that explanation applies equally to the Non-Claims Records. First, there is the court’s jurisdiction over the administration of a class settlement. Second, there is the court’s plenary jurisdiction derived from s. 12 of the Class Proceedings Act, 1992. A court in a class action proceeding has authority to make orders as to the disposition of the IAP records. Third, there is the court’s jurisdiction derived from the IRSSA, which includes its jurisdiction to interpret and enforce contracts and its own orders, including its approval and implementation orders of the IRSSA.

[182] Further, the Supreme Court of Canada held the Library and Archives of Canada Act does not prevent the courts from making orders regarding the disposition of government records.[^61]

[183] Canada says that the IRSSA is a complete code that says nothing about the fate of Non-Claim Documents. However, even complete codes have to be interpreted and applied, and in the immediate RFD in administering the complete code of the IRSSA, all the court is doing for the Non-Claim Records is what it did with respect to the Claim Records RFD, which decision was scrutinized by the Ontario Court of Appeal and the Supreme Court of Canada.

[184] All levels of court in the Fontaine v. Canada (Attorney General) [Claim Records] decisions recognized the importance of archiving IAP Claim Records because of their historical significance. The Non-Claim Records are of the same historical significance. The difference between the Claim Records and the Non-Claim Records is that the former, but not the latter, require a decision from the IAP Claimant as to whether his or her personal story should be a part of the grime historical tapestry of the Indian Residential Schools. The administration of the IAP and the roles of the Chief Adjudicator and of the Secretariat are another part of the history, but the Non-Claim Records do not involve the telling of individual claimants’ stories.

[185] The above all said, Canada should have a say in what should happen to these records. Moreover, regardless of whether or not the Secretariat is in law a government department, its resemblance to a government department should not be ignored and rather it should be respected. While I have expressed concern about the discretionary aspects of the federal legislative regime, Canada nonetheless has a proven record of archiving materials of historical importance through the institution of Library and Archives Canada, which appears to be sufficiently resourced to meet its mandate. Once the prerogatives of the IRSSA are addressed, the normal regime for the disposition of government documents should not be disturbed.

I. How Should the Court Exercise its Jurisdiction with respect to Non-Claim Records?

[186] It follows from the above discussion that the court has the jurisdiction to approve the Chief Adjudicator’s proposal for the disposition of the Non-Claim Records. However, as I shall now explain, while I am of the view that there should be an order made to govern what is to happen to the Non-Claim Records, the proposal for such an Order should, in the first instance, come from Canada and not from the Chief Adjudicator.

[187] In my opinion, once the prerogatives of the IRSSA are addressed, the normal regime for the disposition of government documents should not be disturbed. This approach was more or less acknowledged by the Chief Adjudicator with his proposed treatment of “Government Administrative Records.” Canada has the infrastructure and the expertise and experience with dealing with matters of document retention, archiving, and destruction and it should be given an opportunity to come up with a proposal.

[188] How then should the Non-Claim Records be dealt with? The Claims Records are closer to the claimants because the Claims Records are personal documents of their personal histories, and these documents must be disposed of in accordance with the Fontaine v. Canada (Attorney General) [Claim Records] decisions. In terms of their proximity to the claimants, the same cannot be said for the Non-Claims Records, which, generally speaking, are institutional documents that would normally be governed by how government department documents are treated for destruction, retention and archiving purposes. Once again, this suggests that Canada should have the first opportunity to fashion a plan for the Non-Claim Records.

[189] While the Non-Claim Records and the Claim Records are both subsets of IAP Documents under the Secretariat’s control, for the purposes of the of the IRSSA’s administration and with the IAP nearing completion, it is not appropriate for the Chief Adjudicator to arrogate to himself the right to make archiving decisions through the Secretariat. And it is inappropriate for him also to make decisions about the retention and destruction of records that, but for the intervention of the IRSSA and the court’s overriding jurisdiction, would have been administered by Canada in the same manner as it administers the records and documents of government departments.

[190] I say only that it is inappropriate for the Chief Adjudicator to decide what should happen to the Non-Claim Records held by the Secretariat. Canada would go further, and it seeks a judicial declaration that the Chief Adjudicator’s disposition plan is null and void. In effect, Canada submits that the Chief Adjudicator should not have developed the proposal and that the court cannot be permitted to give effect to it.

[191] I disagree. In my opinion, it was appropriate and salutary for the Chief Adjudicator to develop a proposal, and he should be commended for doing so and for bringing the matter of the disposition of these records to the court’s attention by this RFD, as the Courts requested. This RFD affords the court with an opportunity to address the numerous questions and problems associated with the details of how the Non-Claim Records should be treated, and to obtain the perspectives of those who have been involved in the creation of those documents.

[192] It is not necessary for me to opine on the extent of the autonomy of the Chief Adjudicator and the Secretariat. All that is necessary is to repeat that all IAP documents are subject to the court’s jurisdiction for the reasons expressed above.

[193] 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.

[194] I will elaborate below, but I can immediate say that for the reasons that follow, I dismiss the Chief Adjudicator’s RFD and, for clarity pending a proposal from Canada, I direct that: (a) Static Reports shall not be included in the IAP Final Report; and (b) the Secretariat shall not destroy any documents, and the destruction of documents shall be governed by the Library and Archives Canada Act and by Canada’s document retention policies.

[195] To be more precise, I direct Canada, by no later than June 30, 2020, to bring an RFD for court approval of a proposal for the archiving of copies of Non-Claim Records with the NCTR.

[196] The principles it should adopt and apply in preparing the proposal are set out in the Introduction and Overview section of these Reasons for Decision and I will discuss them further below.

[197] The explanation for the principles derives from considering aspects of the Chief Adjudicator’s proposal and from considering the questions it raised concerning: (1) Statistical Reports; (2) IAP Oversight Committee Records; (3) Reports to the Court; and (4) Complaint Records.

[198] The principles also arise from considering the submissions of Canada, the AFN, NAC, and the NTRC about the Chief Adjudicator’s proposal. One obvious principle is that Claim Records are to continue to be dealt with in accordance with the Canada (Attorney General), v. Fontaine [Claim Records] decisions.[^62]

[199] I recommend that Canada consult with the AFN, NAC, the IAP Oversight Committee, the Court Monitor, the Independent Special Advisor, the Chief Adjudicator, and Court Counsel before submitting its proposal. I recommend that Canada give serious thought to the Chief Adjudicator’s criticism that the plan set out in the Terms and Conditions for the Transfer of Information Resources of the Indian Residential Schools Adjudication Secretariat prepared by LAC is inadequate to achieve the purposes of the IRSSA.

[200] I wish to be clear that Canada is under no obligation to prepare a proposal that would satisfy the Chief Adjudicator’s, AFN’s, NAC’s, or NCTR’s notions of what should be disclosed or not disclosed in the Non-Claims Documents Collection. Canada is, however, directed to prepare a proposal that accords with the letter and spirit of the IRSSA and that is approved by the court in the administration of the IRSSA.

[201] Once again to be clear, I disagree with the submissions of any of the parties that there is any risk to the integrity of the IAP or to the historical record if for legitimate reasons some records are not included in the Non-Claim Records Collection. These submissions do great disservice to the legacy of the work of the TRC, the continuing work of many institutions to implement the TRC’S recommendations, and the continuing work of the NCTR.

[202] I emphasize that the proposal is for copies, and not originals to be delivered to the NCTR. This was the approach used by Justice Goudge in the Fontaine v Canada (Attorney General) [TRC Documents] decision. Canada is free to decide what it wants to do with respect to the original copies of the Non-Claim Records.

[203] I also observe that 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. In other words, it may be the case that the NCTR can obtain documents in ways that do not violate the treatment of Claim Records under the Fontaine v. Canada (Attorney General) [Claim Records] decisions or under this decision or other decisions about Non-Claim Records.

[204] Ordering Canada to come up with a proposal of its own for copies of Non-Claim Records to be delivered to the NCTR should not be objectionable. Canada already has in place the expertise and the infrastructure to make a proposal and would have done so in any event. Canada is not or should not be against archiving copies of Non-Claim Documents with the NCTR, and in any event, for the above reasons, the Court has the jurisdiction to order Canada to further this important project of truth and reconciliation.

J. The Appropriateness of the NCTR as an Archive for the Non-Claim Records

[205] Before explaining the principles to govern Canada’s proposal, it is necessary to address the preliminary matter of the appropriateness of the NCTR as an archive for copies of the Non-Claim Records.

[206] Because its position was that LAC was the appropriate place for the Non-Claim Records, Canada made no submissions about the appropriateness of the NCTR as an archive for the Non-Claim Records. The other parties were strongly in favour of archiving these documents at the Centre.

[207] The Chief Adjudicator submitted that the NCTR is the most appropriate archive to receive the Non-Claim Records for four reasons: (1) it is the archive that the parties to the IRSSA contemplated would receive records; (2) it has an appropriate mandate; (3) its statutory framework can accommodate the records, and (4) it already holds related collections of IAP documents.

[208] The AFN and NAC supported the selection of the NCTR as the appropriate archive for the Non-Claim Records.

[209] The AFN submitted that the NCTR was the appropriate archive for Non-Claim Records for several reasons. The mandate of the NCTR more than accommodated these records. The AFN and other Indigenous groups were comfortable with the governance structure of the Centre and uncomfortable with the idea that Canada exclusively could control the collection of Non-Claim records. The Centre had adequate information and privacy protections, and already housed the TRC documents and IAP Claim Records. The storage of Non-Claim records at the NCTR would ensure accessibility to the documents by the public and researchers, while ensuring proper privacy safeguards. Researchers and the public would benefit from the centralization of IAP associated records with the NCTR.

[210] Based on the evidentiary record, I conclude that the NCTR is an appropriate archive for copies of the Non-Claim Records.

[211] In any event, since I am only ordering that copies of Non-Claim Records be archived at the NCTR, 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. I conclude, therefor, that copies of the Non-Claim Records should be archived at the NCTR.

K. Would the Chief Adjudicator’s Proposal Have Contravened the Orders made in Canada (Attorney General), v. Fontaine [Claim Records]?

[212] In order to respond to the RFD and to explain the principles that should govern Canada’s proposal, it is necessary to address the several arguments made by the parties that go to the details of how the Non-Claim Records should be disposed of.

[213] The first of these arguments is Canada’s submission that the Chief Adjudicator’s proposal about Existing Statistical Reports would violate confidentiality promises made to the Claimants and would contravene the Order made in Canada (Attorney General), v. Fontaine [Claim Records] because IAP Personal Claimant Information would be used to generate the Statistical Reports.

[214] Based on my understanding of the Existing Statistical Reports, having received them in various forms in the Chief Adjudicator’s Quarterly Reports to the Courts, I consider Canada’s submission to be factually incorrect. The nature of the Existing Statistical Records is that they are aggregate or collective information that does not identify individual claimants.

[215] The Existing Statistical Records were generated to show the progress of the IAP’s administration from the time of the Secretariat’s establishment to the present and beyond. 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. Thus, Canada should include Existing Statistical Reports in their proposal for a collection of Non-Claim Records.

[216] However, for the reasons explained in the next section, neither the Chief Adjudicator in his Final Report to the Court nor Canada in its proposal should include Static Reports.

L. How Should Static Reports be Treated?

[217] The parties have categorically opposed positions with respect to the Static Reports. On one side was the Chief Adjudicator and the AFC, which were proponents for Static Reports that would cross-tabulate specific variables in the SADRE database and give details about the impact of the IRSSA on Indigenous communities.

[218] Canada opposed the preparation of Static Reports for a variety of reasons and submitted that the generation of Static Reports would contravene the Orders made in the Fontaine v. Canada (Attorney General) [Claim Records] decisions.

[219] Canada’s submissions concerning the Static Reports are well-founded. In in some respects even the Chief Adjudicator agreed that the NCTR’s position with respect to Static Reports was too extreme. In an exchange of correspondence between the Chief Adjudicator and the NCTR, the Chief Adjudicator stated that the disclosure of the variable fields in the database in and of themselves could contravene the Fontaine v. Canada (Attorney General) [Claim Records] decisions.

[220] Further, having 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 Canada (Attorney General), v. Fontaine [Claim Records].

[221] I do not believe this sort of deductive reasoning or detective work is possible with the aggregated information of the Existing Statistical Reports, but depending 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.

[222] From the perspective of the claimants, the Existing Statistical Reports have variables that in the aggregate do not reveal information that would be offensive to individuals or to the collective. The Existing Statistical Reports 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, including the schools where the most abuse was reported and at what level of harm.

[223] 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

[224] 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 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.

[225] And just as the history of the Holocaust will not be different for not knowing which was worse, Auschwitz or Treblinka, 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. In balancing the interests at stake, I conclude that generating and archiving the Static Reports puts far too much at risk, for too little gain.

[226] These thoughts led me to the conclusions that: (a) Static Reports shall not be included in the IAP Final Report; and, (b) Static Reports shall not be archived at the NCTR.

M. How Should the IAP Oversight Committee Records be Treated?

[227] The next issue to address is how the IAP Oversight Committee records should be treated.

[228] Since they are of archival value and since there is no debate about their confidentiality, part of the answer is that copies of IAP Oversight Committee Records that are publicly published Minutes of the Oversight Committee should be archived at the NCTR.

[229] In my opinion, however, any records that have not been made available to the public - which is a decision to be made by the IAP Oversight Committee - should not be included in the Non-Claim Records Collection. To include these records in the collection would be a breach of confidence.

[230] Since the decisions of the IAP Oversight Committee and any documents that it disclosed are or will be part of the Non-Claim Records, the historical importance of the deliberations is somewhat attenuated. The positions of IAP Oversight Committee members on various issues are or will be known, and the absence of these deliberative records will not skewer the history of the decisions and the effect of those decisions.

[231] In this last regard, I note that in its factum, the AFN was able to make cogent arguments about such matters as the criminal law competence of adjudicators, and the justice or absence of justice in “Years of Operation” and “Facets of Operation” and “Administrative Split” cases. There is no reason to think that these matters will be lost from the historical record, if the confidential materials of the IAP Oversight Committee are excluded from the Non-Claim Records Collection.

[232] Further, the accountability of adjudicators is already addressed in the IRSSA by a multiple level review system with judicial oversight by RFD to ensure that the process and the decisions of the adjudicators are within the ambit of what the parties bargained for in the IRSSA.

[233] The IAP Oversight Committee had reasons for not disclosing sensitive personal information about adjudicator performance, complaints against claimant counsel and others, and information that is subject to solicitor-client privilege, litigation privilege, and/or common interest privilege. These reasons should not be second-guessed after the fact.

[234] I, therefore, conclude that only publicly available records of the IAP Oversight Committee should be included in the Non-Claim Records Collection.

N. How Should the Reports to the Courts be Treated?

[235] Another issue to be addressed is how should the Reports to the Courts be treated. The Chief Adjudicator has been providing these reports to the Courts on a quarterly basis since the IAP’s inception.

[236] For the reasons that follow, in my opinion, redacted copies of the Reports to the Courts should be included in the Non-Claim Records Collection. The redactions are to be approved by the Administrative Judges.

[237] While the Administrative Judges have received the Reports to the Courts, usually in electronic form, it has not been our practice to file hard copies in the court file. I confess that until this RFD, how the Reports to the Courts should be treated was not considered. I kept copies in my personal electronic file and they were available to me from Court Counsel.

[238] Having considered the matter and having discussed it with Justice Brown, it is our shared view that the Reports to the Courts should be filed under seal with the court files in Ontario and British Columbia. The reports contain highly sensitive material and in our opinion the test for sealing court records set out in Sierra Club of Canada v. Canada (Minister of Finance)[^63] has been satisfied. Whether the sealed material should be unsealed will be a matter to be decided on a case by case basis in the future.

[239] How then should the Reports to the Court be treated for the purposes of this RFD about the treatment of Non-Claim Records? In this regard, the Reports to the Courts qualify as Non-Claim Records of historical and archival value. However, they contain confidential and privileged information and also information that would be subject to the Orders made in the Fontaine v. Canada (Attorney General) [Claim Records] decisions.

[240] Combining the imperatives of the open court principle, the letter and spirit of the IRSSA, the Orders made in the Fontaine v. Canada (Attorney General) [Claim Records] decisions leads me to the conclusion that copies of redacted Reports to the Courts should be included in the Non-Claims Records. The redactions would black out the confidential and privileged material and any information that could identify Claimants.

[241] The redactions are to be proposed by Canada and approved by the Administrative Judges.

[242] It would be the plan of the Administrative Judges to file a copy of the redacted Reports to the Courts in the court files in Ontario and British Columbia.

O. How Should Complaint Records be Treated?

[243] The next issue is how Complaint Records should be treated.

[244] In my opinion, these records should be treated analogously to the treatment of the records of the IAP Oversight Committee. The general principle is that information that has been disclosed to the public or that has been revealed to the public, for instance, by court decisions or by the decisions of administrative tribunals should be included in the Non-Claim Records Collection, and everything else, should be excluded.

[245] I recommend that Canada consult with AFN, NAC, the IAP Oversight Committee, the Court Monitor, the Independent Special Advisor and Court Counsel about how this general principle should be implemented for the Complaint Records.

P. How Should Adjudicator Personal Records be Treated?

[246] While excluded from the Chief Adjudicator’s proposal, the AFN seeks access to adjudicator personnel and performance records to use them to “provide insight” into cases that it says were wrongly decided, and to ensure “the accountability of these parties”.

[247] The NCTR, which wants everything archived at the NCTR, submits that these personnel records “will contain a systemic glimpse into aspects of adjudicator decision-making”.

[248] Canada wants these records for auditing purposes and to defend itself in possible future litigation. For the reasons expressed above, Canada shall have these documents and therefore the question that remains is whether the NCTR should obtain copies.

[249] My answer to that issue is no. I agree with the submissions of the Chief Adjudicator at paragraphs 43 to 46 of its factum, where he submits:

43. The archiving of individual adjudicator personnel records is not in accordance with the Schedule N principle that records from the IAP containing sensitive personal information should only be archived where affected individuals have consented. While Justice Goudge held that Canada’s mandatory obligations to disclose under Schedule N did not include litigation response records, the principle that any transfer from the IAP must be based on voluntariness and consent of those affected applies to both Claim and Non-Claim Records.

44. Moreover, the compelled and immediate release of private records of decision-makers to the parties that appear before them is without precedent in Canada, and no party has identified a basis for this Honourable Court to make such an order. One of the principal rationales for deliberative secrecy is that courts and tribunals should speak through their decisions, which can be appealed or reviewed for error. It is for this reason that internal deliberative and collegial records are generally not disclosed to parties. Likewise, parties do not expect to have access — either now or for the foreseeable future — to the communications among and between the nine judges supervising the IRSSA.

45. Compelling disclosure of these records would undermine the finality of the IAP by providing a basis for collateral attacks on adjudicators’ decisions and re-litigation of matters settled in IAP proceedings. This would undermine the finality and repose that Canada has repeatedly sought in previous RFDs. Archiving the records of adjudicators’ personal employment information is particularly inappropriate given the confidential nature of the IAP whereby decisions are not available for review: adjudicators would be unable to respond to any speculation about their work based on their personal information and the public will be unable to make their own assessment.

46. This is not an abstract or hypothetical risk: some of the parties to this RFD have already set out the uses they expect to make of these records, which seem to include impugning specific decisions based on the personal information of individual adjudicators who made those decisions.

Q. How Should Privileged Material be Treated?

[250] Solicitor-client privilege is a common law principle protecting confidentiality that is as close to absolute as possible and does not involve a balancing of interests on a case-by-case basis but may be waived by the parties protected by the privilege.[^64]

[251] The Chief Adjudicator has obtained legal advice and participated in litigation respecting the IAP and has not waived his privilege. He also holds solicitor-client privilege over legal advice sought and received and litigation privilege over litigation work product. The in camera IAP Oversight Committee records contain information that is subject to solicitor-client privilege, litigation privilege, and common interest privilege.

[252] Canada and the NCTR seek to obtain the Chief Adjudicator’s and, as noted above, the privileged records of the IAP Oversight Committee are also sought.

[253] My view is that there is nothing in the IRSSA that would suggest that the parties intended to override the common law rules with respect to solicitor and client privileged documents. Moreover, that the parties to the IRSSA could deny non-parties to the Settlement Agreement their rights to claim privilege, is a highly doubtful proposition.

[254] Therefore, in my opinion, privileged material should be excluded from the Non-Claim Records Collection.

R. Conclusion

[255] Therefore, for the above reasons, I dismiss the Chief Adjudicator’s RFD. However, I direct Canada by no later than June 30, 2020 to bring an RFD for court approval of a proposal for the archiving of copies of Non-Claim Records with the NCTR.

[256] If the parties cannot agree about the matter of costs, the AFN and the NCTR may make submissions in writing within twenty days following the release of these Reasons for Decision, followed by Canada’s submissions within a further twenty days

Perell, J.

Released: January 20, 2020

COURT FILE NO.: 00-CV-192059CP

DATE: 2020/01/20

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LARRY PHILIP FONTAINE in his personal capacity and in his capacity as the Executor of the estate of Agnes Mary Fontaine, deceased, et al.

Plaintiffs

‑ and ‑

THE ATTORNEY GENERAL OF CANADA et al.

Defendants

REASONS FOR DECISION ________________________________________

Perell, J.

Released: January 20, 2020

[^1]: The RFD has its origins in an exchange of correspondence between the Chief Adjudicator and Court Counsel. In a letter to Court Counsel dated June 25, 2019, The Chief Adjudicator advised that the Indian Residential Schools Adjudication Secretariat (the “Secretariat”) was then in the process of “developing a disposition plan for the nonclaim-specific records not covered by the existing Records Disposition Court Order”. He sought the guidance on the issue of archiving the Chief Adjudicator’s Quarterly Reports to the Courts, as well as other documents relating to the establishment, governance and operations of the IAP, posing specific questions. Court Counsel advised the Chief Adjudicator that the Administrative Judges directed that an RFD must be brought to address these and related issues, and that in their view, these issues would be best determined with input from all parties to the IRSSA.

[^2]: The IAP Oversight Committee was created pursuant to the IRSSA, Schedule “D”, Item III r (p. 16). It is composed of an independent chair and 8 other members, two reflecting each of the following constituencies: former students; plaintiff’s counsel; church entities; and government counsel. The IAP Oversight Committee’s duties include recruiting and appointing the Chief Adjudicator and providing advice on any issues brought to its attention by the Chief Adjudicator.

[^3]: S.C. 2004, c. 11.

[^4]: Fontaine v. Canada (Attorney General) [Claim Records], 2014 ONSC 4585, aff’d 2016 ONCA 241, aff’d 2017 SCC 47.

[^5]: The nine courts are the British Columbia Supreme Court, the Alberta Court of Queen’s Bench, the Saskatchewan Court of Queen’s Bench, the Manitoba Court of Queen’s Bench, the Ontario Superior Court of Justice, the Quebec Superior Court, the Supreme Court of Yukon, the Northwest Territories Supreme Court and the Nunavut Court of Justice.

[^6]: 2017 SCC 47.

[^7]: I have refrained from referring to this document, styled as an “Archival Appraisal of Non-Claim Records”, as an expert report. It is on Secretariat letterhead and is not signed by Mr. Tomkins.

[^8]: Canada cites the decision of my colleague Brown J. in Fontaine v. Canada (Attorney General), 2018 BCSC 1097. A related concern is that section 4.11(10) of the IRSSA provides that Canada must be one of the five-member majority in any vote that would increase the costs of the Approval Orders “whether for compensation or procedural matters”. The scope of this provision was considered but not completely resolved by the British Columbia Court of Appeal in National Administration Committee v. Canada (Attorney General), 2019 BCCA 270 where the Court concluded that “[s]ection 4.11(10) of the IRSSA is not a provision allowing Canada to veto RFDs that five members of the Committee have voted to advance.” (at para. 34)

[^9]: Fontaine v Canada (Attorney General), 2019 ONSC 6581.

[^10]: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23; Moore v. Getahun, 2015 ONCA 55; R. v. Mohan, [1994] 2 S.C.R. 9; R. v. Graat, [1982] 2 S.C.R. 819; R. v. Abbey, [1982] 2 S.C.R. 24

[^11]: 1562569 Ontario Inc. (Receiver of) v. Integral Development LLC, 2019 ONSC 896 at paras. 26-28; Calgary (City) v. Alberta (Municipal Government Board), 2002 ABQB 843 at paras. 16-17.

[^12]: Formerly known as the Department of Indian Affairs and Northern Development, AANDC itself was renamed Indigenous and Northern Affairs Canada. On July 15, 2019, legislation came into effect, dissolving Indigenous and Northern Affairs Canada and formally establishing the mandates of two new departments, Indigenous Services Canada and Crown-Indigenous Relations and Northern Affairs Canada.

[^13]: Fontaine v. Canada (Attorney General) [Claim Records], 2014 ONSC 4585, aff’d 2016 ONCA 241, aff’d 2017 SCC 47.

[^14]: 2018 ONSC 4179.

[^15]: SADRE is an acronym for “Single Access to Dispute Resolution Enterprise”.

[^16]: Acting as the two Administrative Judges under the Court Administration Protocol appended to the Implementation Orders, my colleague Brown J. of the British Columbia Supreme Court and I issued a Joint Direction dated November 25, 2014, An appendix to the Joint Direction, the “Administrative Protocol for Addressing and Managing Complaints related to the Integrity of the Independent Assessment Process” called for appointment of an “Independent Special Advisor” to receive and act on complaints about counsel and others acting or IAP claimants. The Honourable Ian Pitfield, a retired judge of the British Columbia Supreme Court, has served in that role with distinction.

[^17]: As noted by the Canadian Association of Archivists in its online materials, archives ensure that the records of today are preserved for future generations. People can then use the records to study and understand the life, ideas and thoughts of their original creators, linking the past, present and future. See https://archivists.ca/content/what-me-archives.

[^18]: United Nations Human Rights Counsel, Updated set of Principles for the Protection and Promotion of Human Rights to Combat Impunity (the “Joinet-Orentlicher Principles”), E/CN.4/2005/102 Add.1:8 February 2005.

[^19]: Canada, Georges Erasmus, and René Dussault. 1996. Report of the Royal Commission on Aboriginal Peoples. Ottawa: The Commission.

[^20]: © Minister of Public Works and Government Services, March 2000.

[^21]: IRSSA, section 18.03.

[^22]: Seven of the nine courts issued their judgments on December 15, 2006. The Nunavut Court of Justice issued its judgment on December 19, 2006, followed by the Northwest Territories Supreme Court on January 15, 2007. By contrast, the Implementation Orders were all issued on March 8, 2007.

[^23]: (2006), 83 O.R. (3d) 481 (S.C.J.).

[^24]: Article 12 bears the heading “National Research Centre” and is set out below in its entirety:

A research centre shall be established, in a manner and to an extent that the [TRC]’s budget makes possible. It shall be accessible to former students, their families and communities, the general public, researchers and educators who wish to include this historic material in curricula. For the duration of the term of its mandate, the [TRC] shall ensure that all materials created or received pursuant to this mandate shall be preserved and archived with a purpose and tradition in keeping with the objectives and spirt of the [TRC’s] work. The [TRC] shall use such methods and engage in such partnerships with experts, such as Library and Archives Canada, as are necessary to preserve and maintain the materials and documents. To the extent feasible and taking into account the relevant law and any recommendations by the [TRC] concerning the continued confidentiality of records, all materials collected through this process should be made accessible to the public.

[^25]: CCSM c N20

[^26]: CCSM c F175

[^27]: Subsection 6(1) refers to “written agreements with other persons, governments and entities, including the Government of Canada and its departments and agencies, respecting the collection of records and information from them”.

[^28]: Supra, note 3.

[^29]: IRSSA, Schedule “D”, Item III t (p. 17).

[^30]: Fontaine v. Canada (Attorney General), 2016 ONCA 241 at para. 171, referring to Baxter v. Canada (Attorney General), (2006), 83 O.R. (3d) 481 at paras. 37-38 (S.C.J.).

[^31]: (2006), 83 OR (3d) 481 at paras. 37-39 (S.C.J.).

[^32]: The forerunner to the IAP was an ADR program that was administered by the Office of Indian Residential Schools Resolution Canada.

[^33]: R.S.C. 1985, c. F-11.

[^34]: R.S.C. 1985, c. A-17.

[^35]: S.C. 2003, c. 22.

[^36]: S.C. 2003, c. 22.

[^37]: R.S.C. 1985, c. A-1.

[^38]: R.S.C. 1985, c P-21.

[^39]: S.C. 2004, c. 11.

[^40]: R.S.C. 1985, c. C-50.

[^41]: An acronym explained supra, note 14.

[^42]: IRSSA, section 1.01.

[^43]: SC 2004, c 11.

[^44]: 2013 ONSC 684.

[^45]: Fontaine v. Canada (Attorney General) [Claim Records], 2014 ONSC 4585, aff’d 2016 ONCA 241, aff’d 2017 SCC 47.

[^46]: 2014 ONSC 4585, aff’d 2016 ONCA 241, aff’d 2017 SCC 47.

[^47]: 2018 ONSC 4179.

[^48]: 2016 ONCA 241.

[^49]: 2017 SCC 47.

[^50]: Reason in Common Sense, The Life of Reason, Vol.1.

[^51]: The duties of the Chief Adjudicator include ‘[r]eceiv[ing] complaints about the performance of adjudicators and as appropriate meet[ing] with adjudicators to discuss concerns and develop[ing] remedial actions to resolve same” and “[d]etermin[ing] … whether to terminate or renew the contract of an adjudicator”: IRSSA, Schedule “D”, Item III s (p. 17). The IAP Oversight Committee’s duties include renewing or terminating adjudicators’ contracts, on the advice of the Chief Adjudicator: IRSSA, Schedule “D”, Item III r iii (p. 16).

[^52]: Described in note 15, supra.

[^54]: S.C. 2004, c. 11.

[^55]: R.S.C. 1985, c. A-1, Schedule I

[^56]: S.C. 2004, c. 11.

[^57]: R.S.C. 1985, c. P-21, Schedule.

[^58]: 2017 SCC 47.

[^59]: 2017 SCC 47 at para. 34.

[^60]: Baxter v. Canada (Attorney General) (2006), 83 O.R. (3d) 481 at para. 12 (S.C.J.).

[^61]: Canada (Attorney General) v. Fontaine, 2017 SCC 47 [Claim Records] at para 33.

[^62]: Fontaine v. Canada (Attorney General) [Claim Records], 2014 ONSC 4585, aff’d 2016 ONCA 241, aff’d 2017 SCC 47.

[^63]: 2002 SCC 41, [2002] 2 S.C.R. 522.

[^64]: Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44; Iggillis Holdings Inc. v. Canada (National Revenue), 2018 FCA 51, leave to appeal to the SCC ref’d [2018] S.C.C.A. No. 207; Milicevic v. T. Smith Engineering, 2016 ONSC 2166.