Three recent court rulings have overturned adjudicators' decisions to deny compensation to people who were abused at Indian residential schools, raising questions about how many other former students have been unfairly refused redress.
As the process created by the Indian Residential Schools Settlement Agreement to provide compensation for the abuse nears the end of its work, the court rulings – two in Ontario and one in Manitoba – suggest that problems with decisions made by adjudicators are not always caught in the reviews and re-reviews to which applicants are entitled.
Bill Erasmus, the regional chief of the Northwest Territories for the Assembly of First Nations, who is responsible for the AFN's residential schools file, said many people who were abused at the schools are intimidated by the complexity of the Independent Assessment Process (IAP) and distraught at reliving the memories. For those reasons, he said, they often do not pursue claims that were unfairly denied.
"Many people didn't get the money that they ought to have," Mr. Erasmus said, "and they just give up."
In July, Justice Paul Perell of the Ontario Superior Court determined that an adjudicator made a "glaring and crucial error" when she relied on her own knowledge of how the Catholic church operates to deny compensation to a claimant who said a priest raped him at a residential school in Spanish, Ont. Her assumptions, which incorrectly led her to conclude the assault must have happened after the school was closed, should not have influenced her findings, the judge said, but neither the review nor the re-review corrected the error. He ordered that the man be compensated.
In another Ontario case, it was agreed that the federal government did not produce important information about the abuse of students at the notorious St. Anne's School in Fort Albany. Without that information, the adjudicator denied the claim of a man who said he was sexually abused by a priest at that institution, and a reviewer upheld the decision. When the government told Justice Perell it would produce the documents in question, the judge sent the case back for re-review.
In a third case, a Manitoba adjudicator called a claimant who said he was fondled by a nun a "credible witness," but denied him compensation, saying she was "not satisfied the act had a sexual purpose." Justice James Edmond of the Manitoba Court of Queen's Bench ruled in August that it is not necessary to prove intent to find a sexual assault has occurred, and ordered the case sent back to an adjudicator for reconsideration.
After the Manitoba ruling, Perry Bellegarde, the National Chief of the Assembly of First Nations, wrote to Dan Shapiro, the chief adjudicator of the IAP, to ask that all cases in which the same error could have occurred be re-examined.
"Where IAP claimants were wrongly denied compensation, we have requested that the individual be informed of the discrepancy and provided with an option to have their claim reviewed," Mr. Bellegarde wrote. "It is quite possible, that a number of IAP claimants across Canada have been adversely impacted and denied compensation as a result of the misinterpretation of the Settlement Agreement."
But Mr. Shapiro said in response to questions from The Globe and Mail that such a review is not possible.
"As the neutral administrator of the IAP, neither I nor the Indian Residential Schools Adjudication Secretariat (which provides administrative support for the IAP) is in a position to conduct a review of claims in this manner," Mr. Shapiro said in an e-mail. "Doing so could potentially compromise the essential neutrality of the decision-making process, particularly where claims may be returned to their original decision maker for re-determination."
The federal Liberal government is appealing the decision in the Spanish case, saying the judge erred by interfering in the findings of the adjudicator, the reviewer and the re-reviewer, and that he had no jurisdiction to order compensation awarded.
Meanwhile, numbers the Indigenous Affairs Department released recently in response to questions from NDP MP Charlie Angus suggest it is not easy to get an adjudicator's decision overturned on review. Of the 1,249 claimants who requested a review of their IAP decision as of May 12 of this year, 230 were given a new decision and 50 were granted a new hearing. And, of the 316 that went to re-review, just 19 got a new decision and three were given a new hearing.
"What I read into these numbers is that the IAP is very favourable to the government," Mr. Angus said, "very favourable to cases being thrown out, and we still haven't seen any real mechanisms within the IAP to address the injustices that have happened."