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Canada Judges should stay out of residential school claims, Ontario Appeal Court rules

The man’s claim goes back to the late 1950s, when he says he was raped and forced to perform oral sex on a priest at the Spanish Boys Indian Residential School.

Shingwauk Residential Schools Centre Algoma Unviersity

Judges have no general right to interfere with compensation decisions involving claims by victims of Canada's notorious Indian residential schools, Ontario's Court of Appeal said Monday.

In written reasons for an oral decision rendered in December, the Court of Appeal said a Superior Court justice overstepped his powers by awarding money to a rape victim whose claims were rejected under the independent assessment process known as the IAP.

"The IAP represents a comprehensive, tailor-made scheme for the resolution of claims by trained and experienced adjudicators, selected according to specified criteria and working under the direction of the chief adjudicator," the Appeal Court said.

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"Allowing appeals or judicial review would seriously compromise the finality of the IAP and fail to pay appropriate heed to the distinctive nature of the IAP and the expertise of IAP adjudicators."

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The case arose when the claimant, known as M.F., turned to the courts after being refused compensation. The adjudicator found the residential school in Spanish, Ont., that employed the priest had already closed when the abuse occurred, rendering his claim ineligible. She based her decision in part on when M.F. could have served as an altar boy given her knowledge of Roman Catholic traditions around confirmation.

A review and re-review failed to change her decision, even though the federal government had evidence that appeared to cement his claim.

In July last year, Ontario Superior Court Justice Paul Perell decided M.F., now 66, had been poorly treated. The finding that the school had closed before he was abused was "inconsistent, discordant, and...perverse," Perell said. Instead of sending his claim back to adjudicators to decide anew, Perell decided to award M.F. compensation.

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The federal government — which agreed M.F.'s claim deserved a new assessment hearing — argued Perell had no jurisdiction to make the award.

In siding with the government, the Appeal Court said the settlement that ended a class action arising out of the residential school system provides for recourse to the courts only in "very exceptional circumstances," such as in cases where the agreement itself is breached.

By contrast, the higher court said, Perell undertook a "full-blown appeal" of the compensation decisions, including doing a detailed review of the adjudicator's factual findings — something he was not entitled to do. In addition, Perell simply didn't have the expertise or information on which to base a compensation award for M.F.

"The administrative judge was motivated by a genuine and sincere desire to see that justice was done in this particular case, and to ensure that M.F. received compensation without further delay," Justice Robert Sharpe wrote for the appeal panel. "Doing justice, however, involves more than going straight to what the judge thinks is the right result."

Given the importance of the legal fight, the Court of Appeal did order the government to pay $50,000 for M.F.'s legal costs — even though he lost — in the "interests of justice."

M.F.'s lawyer, David Schulze, called the court's concern about the finality of claim decisions worrisome.

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"Too much attention to finality could leave meritorious claims like M.F.'s uncompensated," Schulze said from Montreal.

In addition, Schulze said the ruling didn't deal with problems related to Canada's obligation to disclose documents. He also called it improper for Canada's lawyer to have disclosed during the appeal hearing that M.F. and the government had reached a compensation agreement — something he said could have influenced the outcome.

The Appeal Court decision will likely impact a separate but related case: Two other residential school survivors want Perell to order an inquiry into why records of a criminal investigation and prosecutions arising out of abuse at the St. Anne's residential school in Fort Albany, Ont., were only disclosed under court orders in 2014. As a result of the non-disclosure, Edmund Metatawabin and a woman known as K-10106 say some former students were unfairly denied compensation.

The case, due to return to court on March 24, is to focus on whether Superior Court has jurisdiction to grant Metatawabin and K-10106 the orders they want.

Last month, Perell put the hearing on hold pending release of the Appeal Court's written reasons for its M.F. decision.

"Those reasons will be very significant," Perell said then.

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