Indian Residential Schools Settlement Agreement did not require active search for and identification of witnesses who could support claims

CROWN RELATIONSHIP

Indian Residential Schools Settlement Agreement did not require active search for and identification of witnesses who could support claims

Representatives of victims who suffered abuse at Indian Residential Schools (IRS’s) commenced various legal proceedings against federal government and others responsible for operation of IRS’s. Parties entered into IRS’s Settlement Agreement (IRSSA) to resolve these legal proceedings. Part of IRSSA dealt with government document disclosure. Federal government was supposed to compile and release information about IRS’s to facilitate claims made by victims under IRSSA. Information released by federal government about particular IRS failed to mention known incident. Certain victims brought request for directions under IRSSA regarding federal government’s compliance with its disclosure obligations. Request granted in part. Federal government was required to conduct additional searches with police for documents relevant to particular incident, but other requested relief was denied. Court’s responsibility was to hold parties to their negotiated bargain, no more, no less. Federal government was entitled to resist being asked to do more that it bargained for, though it did less than it bargained for in this instance. Federal government was subject to two discrete document collection and disclosure obligations under IRSSA. First, federal government was to “search for, collect and provide a report setting out the dates a Claimant attended a residential school”. Second, federal government was to “search for, collect and provide a report about the persons named in the Application Form as having abused the Claimant”. When approximate time and place of particular incident of abuse was known with sufficient particularity to allow document searches to be made, federal government was obliged to respond to request for documents that might provide information about that incident. In present case, federal government admitted it had not directly collected documents from police. IRSSA did not require active search for and identification of witnesses who could support claims. Such proposed witness-matching program fell outside terms of IRSSA.
Fontaine v. Canada (Attorney General) (Jun. 4, 2015, Ont. S.C.J., Perell J., File No. 00-CV-192059) 255 A.C.W.S. (3d) 251.