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 2

Last week’s article looked at the 2006 Indian Residential School Settlement Agreement (IRSSA) and the Independent Assessment Process (IAP) claims resolution process.

This was a system to provide for compensation as a result of experiences at residential schools. This system was established by negotiation between churches, the federal government, the Assembly of First Nations and other Indigenous organizations and former students.

That process required the Canadian government to prepare a narrative history on each 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.

The narratives were important because they could be used by IAP adjudicators 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, states that between 1992 and 1996, the Ontario Provincial Police (OPP) conducted an extensive investigation into abuse allegations at St. Anne’s Residential School. The allegations included serious physical, sexual and psychological abuse of students over a 30 year period.

The OPP took over 992 statements from 700 individuals. It obtained over 7000 documents from religious organizations connected to the school. In 1997, seven employees of St. Anne’s were charged with various abuse-related crimes. Six were convicted.

But, the OPP information, including investigative documentation and trial transcripts, were not referenced in the IRSSA narratives that the government originally prepared.

Significant documentation was not disclosed.

This included expert medical evidence transcripts of Crown witnesses in the criminal trials respecting the type of abuse suffered at the St. Anne’s Residential School. That medical evidence had been used by the crown prosecutors to articulate the abuse at St. Anne’s in securing convictions in the criminal prosecutions.

By the year 2000, many civil lawsuits had been commenced against the federal government for wrongs committed at St. Anne’s Residential School. Ultimately, these claimants had to proceed under the IRSSA instead.

But, before those cases were moved to the IRSSA, the federal government obtained an order for production of the OPP records. It did so to defend itself in the civil lawsuits.

Even though it was in possession of this extensive documentation, and despite its obligation to provide the narrative under the IRSSA, the federal government did not mention those records in the IRSSA and IAP proceedings.

Instead, it took the position that it was “barred” from producing the documents because they obtained the documents from the OPP subject to an undertaking that it would not disclose the documents to any third party.

It also claimed that requiring it to seek documents from third parties would be a “burden” the government of Canada.

This non-disclosure meant that some information was not available to IAP adjudicators.

It reduced claimants’ abilities to establish abuse allegations and the compensation to which they were entitled. Some claimants were initially unable to establish the facts or timelines necessary to prove their claims of abuse under the IAP.

Not producing information also undermined the objectives of the IRSSA and reconciliation more generally.

Professor Leitch’s paper details failures or refusals to disclose critical documentation, over several years, in the context of St. Anne’s Residential School.

A Fifth Estate episode discussed certain of these documents.

Was St. Anne’s a unique case?

To what extent should public interest considerations temper public bodies’ involvement in civil litigation?

Is it desirable for public bodies to not make full disclosure in civil cases, or to leave the impression that they are attempting to derail individuals’ claims?

Is it desirable for public bodies to defend themselves zealously, if to do so could mean justice is denied?

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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