St. Anne's residential school survivors lose what could be final battle with Ottawa over documents

An Ontario appeals court ended Monday what could be the final battle between St. Anne's Indian Residential School survivors and Ottawa in their years-long legal war over documents key to compensation claims.

The Ontario Court of Appeal dismissed an attempt by St. Anne's survivors to overturn a lower court decision that kept transcripts from a civil case that ended in 2003 from being turned over for use in residential school abuse compensation cases.

In a unanimous ruling, the appeal judges upheld the decision by Ontario Superior Court Justice Paul Perell that the discovery transcripts from the civil action launched in Cochrane, Ont., were covered by settlement privilege and did not have to be turned over.

"There is no basis to interfere with the administrative judge's conclusions that Canada did not breach its disclosure obligations in refusing to produce the Cochrane transcripts," said the appeals court in Monday's ruling.

• Ottawa initially fought St. Anne's residential school electric chair compensation claims

• St. Anne's residential school survivors want mediation, say Ottawa keeps fighting claims

St. Anne's operated in Fort Albany First Nation, along Ontario's James Bay Coast, from 1902 to 1976, and became notorious for its use of a homemade electric chair for punishment and sport.

'Unfinished business'

The appeal was launched by three St. Anne's residential school survivors who were seeking to have Ottawa turn over the transcripts to bolster compensation cases under the Independent Assessment Process (IAP).

The IAP was created by the Indian Residential Schools Settlement Agreement to determine the validity and set compensation levels for abuse suffered by survivors at the institutions.

The appeals court decision appears to end years of litigation that at one point forced Ottawa to turn over thousands of police documents kept from the record used for compensation claims within the IAP.

"We were very hopeful. We thought we were doing the right thing, we were speaking the truth," said Edmund Metatawabin, a St. Anne's survivor.

"This was unfinished business."

Metatawabin, who is a co-ordinator with Peetabeck Keway Keykaywin, the St. Anne's residential school survivors society, said his organization did not plan to continue the legal fight.

Metatawabin said they would now focus on talks with Crown-Indigenous Relations Minister Carolyn Bennett, who recently met with St. Anne's survivors on Parliament Hill. During the meeting, Bennett agreed to discuss a possible mediation process to settle outstanding legal issues and consider a proposal for language and culture program funding in the region.

"At least we have something still in place for us work on," said Metatawabin.

Bennett's office said in a statement that the appeals court ruling would not have an impact on those ongoing discussions.

"We are reviewing their proposals and remain committed to bringing closure for all those involved," said Bennett's office, in an emailed statement.

Montreal lawyer David Schulze, who was involved in the case on behalf of independent counsel, said the ruling provided little clarity on Ottawa's obligations regarding disclosure under the settlement agreement.

"The agreement clearly says the government of Canada has to go through discovery transcripts, they have to go through those documents in order to come up with reports about abuse," said Schulze.

"Now they are saying you can't have those transcripts."

Ruling follows years-long battle 

The ruling is the latest in a years-long battle between St. Anne's survivors and Ottawa over document disclosure for IAP hearings.

Ottawa provides the documents to support compensation claims it can also oppose during IAP hearings which are heard by adjudicators.

In the case of St. Anne's, Ottawa failed to disclose key documentation that initially cost survivors their cases or affected payouts because abuse claims were not believed.

Two key pieces of evidence in IAP hearings are the school narrative — a history of the school including evidence of abuse — and person of interest reports, which itemize abuse allegations against individual school officials.

For about the first six years of the IAP process, Ottawa's school narrative for St. Anne's said there were only four documented cases of physical abuse and no cases of sexual or student-on-student abuse at the school.

The school narrative never mentioned that Justice Canada held thousands of documents from an Ontario Provincial Police investigation into abuse at St. Anne's that led to five convictions. Those documents were turned over in 2014 following a court decision by Perell.

The decision also called on Ottawa to turn over "transcripts of criminal or civil proceedings in its possession about the sexual and/or physical abuse at St. Anne's."

After that decision Ottawa said it would only produce civil transcripts for IAP hearings specific to the claimant seeking compensation. Ottawa argued that transcripts not involving IAP claimants were covered by settlement privilege.

Transcripts would have supported claims

The St. Anne's survivors said the civil transcripts bolster their claims of abuse because they revealed certain priests and school officials abused other students and also provided supporting evidence of student-on-student abuse which is key to those types of compensation claims.

The details of Ottawa's persons of interest reports related to St. Anne's also changed substantially over the years. In one instance, a report on former Moosonee Bishop Jules Leguerrier went from one page to 3,191 pages itemizing allegations of abuse.

The Cochrane case saw 154 former students bring 62 civil actions against Ottawa and the Oblates of Mary Immaculate and the Grey Sisters of the Cross Catholic orders. There were more than 100 alleged perpetrators named in the action.

The OPP identified 74 potential suspects during their investigation.

The IAP process is close to completion. About 98 per cent of all IAP claims have been resolved and 90 per cent of all IAP claimants have received compensation. St. Anne's cases had a 95 per cent success rate, according to figures from the Indian Residential Schools Adjudication Secretariat.