Fight over secret St. Anne's residential school documents back in court

TORONTO - Survivors of the notorious St. Anne's residential school square off against the federal government this week in another round of a convoluted legal battle over document secrecy.

Among other things, the plaintiffs want Ontario's top court to order a review of all St. Anne's compensation claims adjudicated before the government disclosed thousands of documents from a 1990s criminal investigation by provincial police.

They also want the court to set aside a decision allowing Canada to keep secret civil-litigation materials — despite an initial ruling to turn them over. The documents were generated during 62 lawsuits related to horrific physical and sexual abuse 154 Indigenous people had suffered at St. Anne's in Fort Albany, Ont.

Those lawsuits were all resolved without a trial but before the government settled a broader class action brought by Indian residential school survivors in 2007. As part of the class-action settlement, the government set up a compensation scheme for survivors known as the independent assessment process.

The two St. Anne's plaintiffs in this week's appeal — known as H-15019 and K-10106 — were both initially denied compensation but succeeded after a legal fight and reviews. They maintain the difficulties they had in advancing their claims can be attributed to the government's failure to disclose all relevant documents it had in its possession.

They also argue other claimants may have run into the same issue.

"Canada failed the St. Anne's survivors and misled the adjudicators," the plaintiffs say in written Appeal Court submissions. "Canada continues to fail in the duties it owes to the St. Anne's survivors, the adjudicators, and the administration of justice by refusing to produce transcripts from examinations from discovery that are part of the factual narrative of St. Anne's IRS."

The federal government, the plaintiffs argue, has no legal basis to claim "settlement privilege" to keep the civil documents secret. They say such privilege applies only to negotiations toward settlement of a lawsuit, not to sworn testimony and factual evidence contained in transcripts that are a normal part of such litigation.

St. Anne's, which the plaintiffs describe as "veritable house of horrors where, for generations, indigenous children suffered unspeakable physical and sexual abuses," has long been the subject of criminal and civil proceedings. Courts in Ontario and British Columbia have issued close to 20 separate decisions and endorsements related to the compensation process involving the now-defunct school.

In January 2014, Ontario Superior Court Justice Paul Perell ordered Canada to disclose all transcripts of criminal or civil proceedings related to St. Anne's. Six months later, court documents show, the government simply wrote Perell to say it would not be handing over civil transcripts on the grounds they were confidential under the doctrine of "settlement privilege."

Last April in a new decision, Perell concluded Canada was not obliged to produce the civil transcripts — the ruling now under appeal.

For its part, the Canadian government maintains the Appeal Court should not interfere. It asserts the issues are moot because H-15019's claim has now been settled, and Perell was right to find that K-10106 had no standing to raise the matter.

"In addition to legal arguments, the appellants make numerous unsupportable allegations that do not withstand any scrutiny of the evidence," Ottawa asserts in its factum. "The appellants are wrong to allege that previous disclosure issues involving St. Anne's...amounted to 'material suppression of evidence.'"

Intervening in H-15019's appeal, lawyers acting as independent counsel under the Indian residential schools settlement argue Canada's assertion of settlement privilege has never been recognized in law. They also argue "other claims from St. Anne's that are yet to be heard could still be affected by the failure to disclose the civil transcripts."

The case is expected to be heard on Tuesday and Wednesday.


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