Rehearing ordered in dispute over aggregated data on Residential School compensation claims

Ruling ‘important for the preservation of Canada’s national memory:’ lawyer

Rehearing ordered in dispute over aggregated data on Residential School compensation claims
Joanna Birenbaum, Ursel Phillips Fellows Hopkinson LLP

A recent decision by the Ontario Court of Appeal, which will preserve aggregated data on more than 38,000 compensation claims from former Residential School students, is “important for the preservation of Canada’s national memory,” says Joanna Birenbaum, who acted for the National Centre for Truth and Reconciliation (NCTR).

The NCTR appealed an order on the disposition of documents related to the Indian Residential Schools Settlement Agreement and the Independent Assessment Process (IAP). The records included “intensely personal and confidential accounts” of abuse, administrative records and other material arising out of the settlement and adjudication process, said the decision.

“I am relieved that this critically important historical record will be preserved,” says Birenbaum. “There is some irony that Canada has fought so hard in this litigation to destroy aggregate data about claims compensation when in 2017 before the SCC, Canada fought equally hard to preserve all of the intimate records of the details of abuse recounted in the IAP process.”

The IAP process has concluded as of March 31. For the final report on the claims process, the Chief Adjudicator – who directed the Indian Residential Schools Adjudication Secretariat, which administered the process – wanted to include aggregate statistical data on the claims and their outcomes. The data would show, province by province, how many claims were made, the amounts awarded against each religious affiliation and how much compensation was awarded for each type of abuse, proven harm-level or proven loss of opportunity, says Birenbaum. The data could produce those numbers on a school-by-school basis as well, she says. The data would be archived at the National Centre for Truth and Reconciliation (NCTR)

The Supervising Judge, Justice Paul Perell of the Superior Court, determined that the data should not be generated, included in the Final Report nor archived at the NCTR. Perell found the data could reveal the identity of IAP claimants, in contravention of a prior court order, and that there was a risk the information could be “spun” to draw “unreliable and contentious conclusions.” He also found that generating this information would not advance the goals of truth and reconciliation.

In the appeal, the NCTR, the Assembly of First Nations and the National Administration Committee argued there was no evidence to support the conclusion that the stats could be manipulated and would not advance truth and reconciliation.

“The information in the Static Reports provides a critically important source of data on the magnitude of the abuse that took place in the IRS, particularly since approximately half of all living former students made claims in the IAP,” said the NCTR’s factum. “… Without memorializing this information, we risk social denial.”

The Court of Appeal found Perell’s concerns about “confidentiality, reliability and archival utility” were valid but that there was no evidence before him to “substantiate those concerns.” The Court said Perell should have required further evidence be adduced.

The Court allowed the appeal, in part, and remitted the issue of the aggregate statistical data to the Supervising Judge for rehearing in accordance with their reasons. The Court granted the NCTR’s request to stay the order that would have destroyed the database from which the data came, until the Supervising Judge’s final disposition.

A major stumbling block of the matter was that the statistical reports at issue had not been generated yet and only “proposed static reports” were before Perell, said the Court. So the Court ordered the Chief Adjudicator produce the reports “in final form,” place them under seal and deliver them to the Supervising Judge for the rehearing.  

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