Documents relied on to process Indian residential schools claims to remain confidential

In response to number of individual and class actions brought by survivors of residential schools, Government of Canada established voluntary alternative dispute resolution (“ADR”) process to compensate survivors. Indian Residential Schools Settlement Agreement (“IRSSA”) was reached and, under Independent Assessment Process (“IAP”), former students who were survivors of abuse resulting in serious psychological consequences could bring claims forward. Each claimant provided narrative in first person and outlined his or her request for compensation in accordance with IRSSA. Requests for directions was sought on disposition of IAP Documents and on development of notice program to inform claimants of possibility of voluntarily archiving some of their IAP Documents at National Research Centre for Truth and Reconciliation (“NCTR”). Supervising judge concluded that court should exercise its jurisdiction to order destruction of IAP Documents. Church defendants appealed; Attorney General of Canada cross-appealed. Appeal and cross-appeal dismissed but supervising judge’s order was varied. Attorney General of Canada appealed. Appeal dismissed. There was evidence that IAP would not have achieved its purpose but for promise of absolute confidentiality. Amount of compensation depended on number of “Compensation Points” applicable to proven acts of abuse and resulting harm that they established. Reluctance on part of claimants to undergo questioning by adjudicator on these topics without assurances of absolute confidentiality was fully understandable. IRSSA did not expressly provide disposition for IAP decisions, beyond stating that claimants will receive redacted copy. Necessary implication was that other copies of decisions would not be preserved or eventually archived. Application of Privacy Act to IAP Documents clearly ran counter to principles of confidentiality and voluntariness upon which IAP was founded. Retention in National Archives was inconsistent with absolute level of confidentiality that parties intended for these documents. IAP claimants still had possibility to archive their records with NCTR if they wished to do so. Supervising judge’s order was not precluded by operation of Library and Archives of Canada Act or any other legislation.

Canada (Attorney General) v. Fontaine (2017), 2017 CarswellOnt 15406, 2017 CarswellOnt 15407, 2017 SCC 47, 2017 CSC 47, McLachlin C.J.C., Karakatsanis J., Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); affirmed (2016), 2016 CarswellOnt 4938, 2016 ONCA 241, G.R. Strathy C.J.O., Robert J. Sharpe J.A., and J. MacFarland J.A. (Ont. C.A.).