{"id":85418,"date":"2017-01-16T20:17:31","date_gmt":"2017-01-17T01:17:31","guid":{"rendered":"https:\/\/canadianinquirer.net\/v1\/?p=85418"},"modified":"2017-01-17T00:51:17","modified_gmt":"2017-01-17T05:51:17","slug":"judges-should-stay-out-of-indian-residential-school-claims-appeal-court-rules","status":"publish","type":"post","link":"https:\/\/canadianinquirer.net\/v1\/2017\/01\/16\/judges-should-stay-out-of-indian-residential-school-claims-appeal-court-rules\/","title":{"rendered":"Judges should stay out of Indian residential school claims, Appeal Court rules"},"content":{"rendered":"
\"Judges<\/a>
Judges have no general right to interfere with compensation decisions involving claims by victims of Canada’s notorious Indian residential schools, Ontario’s top court (Pictured) said Monday. (Photo: Richie Diesterheft\/ <\/a>flickr)<\/figcaption><\/figure>\n

TORONTO \u2013Judges have no general right to interfere with compensation decisions involving claims by victims of Canada’s notorious Indian residential schools, Ontario’s top court said Monday.<\/p>\n

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.<\/p>\n

\u201cThe 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,\u201d the Appeal Court said.<\/p>\n

\u201cAllowing 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.\u201d<\/p>\n

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.<\/p>\n

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

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 \u201cinconsistent, discordant, and…perverse,\u201d Perell said. Instead of sending his claim back to adjudicators to decide anew, Perell decided to award M.F. compensation.<\/p>\n

The federal government \u2013which agreed M.F.’s claim deserved a new assessment hearing \u2013argued Perell had no jurisdiction to make the award.<\/p>\n

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 \u201cvery exceptional circumstances,\u201d such as in cases where the agreement itself is breached.<\/p>\n

By contrast, the higher court said, Perell undertook a \u201cfull-blown appeal\u201d of the compensation decisions, including doing a detailed review of the adjudicator’s factual findings \u2013something 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.<\/p>\n

\u201cThe 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,\u201d Justice Robert Sharpe wrote for the appeal panel. \u201cDoing justice, however, involves more than going straight to what the judge thinks is the right result.\u201d<\/p>\n

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 \u2013even though he lost \u2013in the \u201cinterests of justice.\u201d<\/p>\n

M.F.’s lawyer, David Schulze, called the court’s concern about the finality of claim decisions worrisome.<\/p>\n

\u201cToo much attention to finality could leave meritorious claims like M.F.’s uncompensated,\u201d Schulze said from Montreal.<\/p>\n

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 told the appeal hearing that M.F. and the government had reached a compensation agreement \u2013something he said could have influenced the outcome.<\/p>\n

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.<\/p>\n

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.<\/p>\n

Last month, Perell put the hearing on hold pending release of the Appeal Court’s written reasons for its M.F. decision.<\/p>\n

\u201cThose reasons will be very significant,\u201d Perell said then.<\/p>\n","protected":false},"excerpt":{"rendered":"

TORONTO \u2013Judges have no general right to interfere with compensation decisions involving claims by victims of Canada’s notorious Indian residential …<\/p>\n","protected":false},"author":33,"featured_media":85419,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[18,1],"tags":[13694,13695],"class_list":["post-85418","post","type-post","status-publish","format-standard","has-post-thumbnail","category-news-ca","category-uncategorized","tag-court-of-appeal","tag-indian-residential-schools","mauthors-colin-perkel","mauthors-the-canadian-press"],"_links":{"self":[{"href":"https:\/\/canadianinquirer.net\/v1\/wp-json\/wp\/v2\/posts\/85418","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/canadianinquirer.net\/v1\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/canadianinquirer.net\/v1\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/canadianinquirer.net\/v1\/wp-json\/wp\/v2\/users\/33"}],"replies":[{"embeddable":true,"href":"https:\/\/canadianinquirer.net\/v1\/wp-json\/wp\/v2\/comments?post=85418"}],"version-history":[{"count":0,"href":"https:\/\/canadianinquirer.net\/v1\/wp-json\/wp\/v2\/posts\/85418\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/canadianinquirer.net\/v1\/wp-json\/wp\/v2\/media\/85419"}],"wp:attachment":[{"href":"https:\/\/canadianinquirer.net\/v1\/wp-json\/wp\/v2\/media?parent=85418"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/canadianinquirer.net\/v1\/wp-json\/wp\/v2\/categories?post=85418"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/canadianinquirer.net\/v1\/wp-json\/wp\/v2\/tags?post=85418"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}