Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice, and provides Kelowna Capital News with weekly stories from the world of local, national and international law. (Contributed)

Kootnekoff: Access to justice and residential schools in Canada

Susan Kootnekoff is the founder of Inspire Law, her diverse legal career spans over 20 years

Part 1

Recently, the remains of 215 children were discovered in unmarked mass graves on the site of Kamloops Residential School.

There is a sense that there may be more. That sites like this may exist elsewhere in Canada.

The school was operated by the Catholic Church between 1890 and 1969, when the federal government took it over.

The Truth and Reconciliation Commission of Canada has records of at least 51 children dying at the Kamloops Residential School between 1914 and 1963.

Many questions remain. We know little about the children’s remains, who they were or the circumstances of their deaths.

Amid this news, it is interesting to think of the positions taken by the federal government and its lawyers in at least some residential schools proceedings.

Initially, government lawyers fought claims for compensation arising from an electric chair and other wrongs at St. Anne’s Indian Residential School in Fort Albany, Ontario.

To understand the approach taken to the litigation, let’s first look at the residential schools claims resolution process.

The Residential Schools Settlement Agreement (IRSSA)

In May, 2006, the Indian Residential School Settlement Agreement (IRSSA) was finalized. The IRSSA was negotiated between churches, the federal government, the Assembly of First Nations and other Indigenous organizations and former students.

In Fontaine v Canada (AG), the B.C. Supreme Court described the IRSS as a “Canada-wide settlement encompassing residential school operations spanning more than a century and includes an estimated 79,000 class members in total.”

Article 6 of the IRSSA established the Independent Assessment Process (IAP) as the way for claimants to seek compensation.

Justice Brown in Fontaine v. Canada described the IAP as:

… a modified adjudicative proceeding for the resolution of claims of serious physical or sexual abuse suffered while at a residential school. The hearings are to be inquisitorial in nature and the process is designed to minimize further harm to claimants. The adjudicator presiding over the hearing is charged with asking questions to elicit the testimony of claimants. Counsel for the parties may suggest questions or areas to explore to the adjudicator but they do not question claimants directly.

The IAP was a form of litigation, although it a modified form that was supposed to reflect the sensitive nature of the claimants and claims.

A claimant commenced the IAP process with an application not unlike a civil claim. It detailed the harm or abuse, with dates, times and those who did wrong, and requested compensation.

At a hearing before an adjudicator, the adjudicator assessed the credibility of the claimant’s claim and the harm to the claimant and determined the appropriate compensation.

Hearings were private and confidential. There was no right of cross-examination by any alleged perpetrator. Parties could call witnesses, but the adjudicator asked the questions.

IRSSA Disclosure Obligations

The IRSSA required the government of Canada to provide information about the IAP claimants, the residential school in question and information about alleged perpetrators (persons of interest (POI) reports) and/or allegations of abuse at a particular school.70

The Canadian government was also required to prepare a narrative on each of the residential schools — essentially a history of a particular residential school. It was intended to include reference to any abuse that took place at that school.

The obligation to disclose information and prepare the narrative was ongoing. As new information became available, the government was required to include it and update the narrative accordingly.

An Ontario judge noted in Fontaine v Canada (Attorney General), that “Canada is not doing a favour in providing school narratives or POI reports; it is performing a hard-bargained for contractual promise.”

The narratives were important to the IAPs, because they could be used by adjudicators as a basis upon which to make findings of fact and assess credibility of a particular claimant’s claim of abuse. The IRSSA contemplated IAP adjudicators taking previous criminal or civil trial into account.

In “A Less Private Practice: Government Lawyers and Legal Ethics”, a 2020 paper published in the Dalhousie Law Journal, Jennifer Leitch, an adjunct professor of law at Osgood Hall Law School and an instructor at Trinity College, University of Toronto, describes problems that arose in the IAPs for St. Anne’s Residential School.

The government and its lawyers viewed their role as one that prioritized taking a traditional adversarial position. Little priority was given to serving the public interest in the sense of fostering truth seeking.

Next week, we will look at some issues encountered in the St. Anne’s Residential School IAPs.

About Susan Kootnekoff:

Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. Photo: Contributed

Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. Photo: Contributed

Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children.

Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law.

She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, Alta.

Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013,

Susan moved to the Okanagan with her family, where she currently resides.

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