DG v Attorney General (Canada), 2020 BCCA 197

Appeal dismissed. This decision deals with the outer boundaries of the Indian Residential Schools Settlement Agreement, which does not extend to a consensual relationship between a staff member and a non-student daughter of another employee. 

Indigenous Law Centre – CaseWatch Blog

This appeal asks whether a supervising judge under the Indian Residential Schools Settlement Agreement [“IRSSA”] erred in declining to intervene in a decision denying the appellant compensation for alleged sexual assault. The Court is of the view that the judge correctly held that she did not have jurisdiction to grant the relief sought. The appellant did not establish that the impugned decision failed to apply the terms of the IRSSA, which is the basis on which she sought judicial recourse.

The IRSSA is a contract negotiated between various stakeholders that established a process for the resolution of claims arising from the long and tragic history of abuse suffered by thousands of Indigenous children who attended Residential Schools across Canada (Fontaine v Canada (Attorney General), 2019 BCCA 246).

The IRSSA [“IAP Model”] recognizes three forms of “compensable abuse”: 1) sexual and physical assaults arising from or connected to the operation of an Indian Residential School that were committed by adult employees of the government or church entity operating the school, or other adults lawfully on the premises; 2) sexual and physical assaults committed by one student against another; and 3) any other wrongful act(s) committed by adult employees or other adults lawfully on school premises and proven to have caused serious psychological consequences for the claimant.

Collectively, these categories of abuse constitute continuing claims under the IAP Model. According to the terms of the Model, it is the responsibility of an IAP adjudicator to assess the credibility of each allegation made by the person who seeks IRSSA compensation and, where the allegation has been proven on a balance of probabilities, to then determine whether what has been proven constitutes a continuing claim.

The appellant brought a claim for compensation under the IAP, alleging sexual assaults by an adult employee of an IRS. At the material time, the appellant lived on the premises of an IRS with her family. Her father worked at the school. The appellant was not registered as a student as she attended school elsewhere. However, she interacted with IRS residents and attended some of the school’s sporting activities as a spectator.

The appellant had an intimate relationship with a man who worked at the IRS as a coach and cottage supervisor [“Employee”]. The appellant was 16–17 years old at the time. The Employee was nine years older. He was married and had two children. The appellant and Employee had sexual intercourse on numerous occasions. The sexual contact occurred on IRS property. The appellant became pregnant. When her family learned of that fact, she left the family’s home at the IRS and lived with a sibling. About a year after giving birth, the appellant resumed her relationship with the Employee. They eventually moved in together, married and had additional children. They have since divorced.

The appellant brought a claim under the IAP based on the start of her relationship with the Employee and the sexual contact that occurred while she was living on school premises. She argued that the relationship was exploitive, based on the Employee’s age, his position of power and the manipulative way in which he pursued sexual contact with her. An IAP adjudicator decided in the appellant’s favour, awarding her $149,667 in compensation for sexual abuse. The adjudicator found that the appellant was not a student or resident of the IRS at the time of the impugned relationship.

The Attorney General for Canada sought a review of the adjudicator’s decision. The reviewer did not agree that the appellant proved she was sexually assaulted and, as such, held that the adjudicator misapplied the IAP Model by awarding compensation for consensual sexual activity. A second reviewer concluded that the initial adjudicator’s determination of compensable abuse was erroneously grounded in findings about the Employee’s “character and motivation” in seeking out contact with the appellant, rather than whether consent to sexual intercourse had been vitiated in the circumstances. The supervising judge declined to grant the relief sought in the Request For Direction made by the appellant.

There is only one issue on appeal, namely, whether the supervising judge correctly held there was no jurisdiction for her to interfere with the decision of the second IAP reviewer. Where an appeal raises a question about a supervising judge’s interpretation of the IRSSA, the standard of review is that of palpable and overriding error (Canada (Attorney General) v Fontaine, 2017 SCC 47). The Court is not persuaded that the judge committed palpable and overriding error. To sustain a conviction for sexual assault in the criminal law context, there must be proof of non-consent, actual or vitiated (R v Barton, 2019 SCC 33; R v JA, 2011 SCC 28; s 265(1)–(3), 273.1, Criminal Code). Appreciating the “very limited” scope of judicial recourse in IAP cases, there is no principled basis on which to interfere with the supervising judge’s conclusion.