Fontaine v Canada (Attorney General), 2018 NUCA 4

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: Fontaine v Canada (Attorney General), 2018 NUCA 4 Date: 20180720 Docket: 08-17-006-CAC Registry: Iqaluit Between: Larry Philip Fontaine Respondent (Plaintiff) - and - The Attorney General of Canada Appellant (Respondent) _______________________________________________________ The Court: The Honourable Madam Justice Patricia Rowbotham The Honourable Madam Justice Sheila Greckol The Honourable Madam Justice Jo'Anne Strekaf _______________________________________________________

Memorandum of Judgment Appeal from the Order by The Honourable Madam Justice B. Tulloch Dated the 22nd day of February, 2017 Filed the 5th day of March, 2017 ( Docket: 08-05-401-CVC; 2016 NUCJ 31 ) _______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: I. INTRODUCTION [ 1 ] The Attorney General of Canada appeals from a decision granting an application to have Kivalliq Hall, a high school student residence in Rankin Inlet (then in the Northwest Territories, now Nunavut), added as an institution pursuant to

Article 12 of the Indian Residential School Settlement Agreement: Fontaine v Canada (Attorney General) , 2016 NUCJ 31 [Reasons] . The application was brought by Nunavut Tunngavik Inc and a former student on behalf of all former students. [ 2 ] We are not persuaded that the application judge’s approach to assessing

Article 12 or her inferences of fact warrant our intervention, and we dismiss the appeal. II. BACKGROUND [ 3 ] The removal of First Nations, Inuit and Métis children from their families from the 1860s to the 1990s to attend Indian Residential Schools, where there was physical, emotional and sexual abuse, is a dark

chapter in Canadian history. Survivors of residential schools brought individual and class actions and in 2006, class actions in nine provinces and the territories were consolidated. They were resolved through a comprehensive settlement process that resulted in the Indian Residential School Settlement Agreement (Settlement Agreement). [ 4 ] The Settlement Agreement provides a mechanism for students to apply for compensation if they attended an Indian Residential School listed in

Schedule E or F of the Settlement Agreement or if the institution “is determined to meet the criteria set out in

Section 12.01(2) and (3) of this Agreement”: Settlement Agreement, s 1.01. [ 5 ]

Article 12 outlines the criteria for adding an institution to

Schedule F.

Section 12.01(2) sets out the criteria as:

a) The child was placed in a residence away from the family home by or under the authority of Canada for the purposes of education; and,

b) Canada was jointly or solely responsible for the operation of the residence and care of the children resident there. [ 6 ] Subsection (b)—operation and care—is informed by

section 12.02(3), which states (with emphasis added):

(3) Indicators that Canada was jointly or solely responsible for the operation of the residence and care of children there include, but are not limited to , whether:

a) The institution was federally owned;

b) Canada stood as the parent to the child;

c) Canada was at least partially responsible for the administration of the institution;

d) Canada inspected or had a right to inspect the institution; or ,

e) Canada did or did not stipulate the institution as an IRS. [ 7 ] For convenience we will refer to this enumerated list as the “Indicators”. [ 8 ] In short, an applicant asking to have an institution added as an Indian Residential School must establish that Canada had a role in the child’s placement and care , and in the institution’s operation : Assembly of Manitoba Chiefs v Canada (Attorney General) , 2017 MBCA 2 at para 30 , [2017] MJ No 2 (QL) [ Teulon Residences CA ] . [ 9 ] Kivalliq Hall was a 40-bed residence that operated from 1985 until 1995.

It was 278 kilometres from Baker Lake where the applicant, Simeon Mikkungwak, lived. Because no high school curriculum was offered in Baker Lake, Mr Mikkungwak was told to live at Kivalliq Hall while attending the Keewatin Region Education Centre from 1985 until 1989, when he obtained his high school diploma. [ 10 ] Mr Mikkungwak requested that Canada designate Kivalliq Hall as an Indian Residential School but was refused because Canada took the position that the requirements of

Article 12 were not satisfied. Once Canada refuses to add a proposed institution, an application to the court may be made: s 12.01(5). [ 11 ] Mr Mikkungwak and Nunavut Tunnagavik Inc (NTI) applied to the Nunavut Court of Justice for a declaration that Kivalliq Hall be added as an institution listed in the Settlement Agreement. NTI is an organization that represented former Inuit residential school students in the class action leading to the ratification of the Settlement Agreement and now represents them with respect to its implementation. III. DECISION UNDER APPEAL [ 12 ] The application judge concluded that Kivalliq Hall should be added as an institution to

Schedule F because the applicants had demonstrated that Kivalliq Hall met the test set out in

Article 12. She found that “Mr Mikkungwak was placed in a residence away from his family by or under the authority of Canada for the purpose of education; and Canada was jointly responsible for the operation of Kivalliq Hall and the care of the children”: para 137 (emphasis in original). [ 13 ] She referred to other court decisions considering similar applications and noted that whether an institution should be added “turns on the facts of the specific situation under consideration”: para 63, citing Canada (Attorney General) v Alexis, 2015 ABCA 132 at para 24 [ Moosehorn Lodge CA ] . She had regard to the

preamble to the Settlement Agreement which states that all parties desire “a fair, comprehensive and lasting resolution of the legacy of Indian Residential Schools” and “the promotion of healing, education, truth and reconciliation and commemoration”. The Settlement Agreement was “intended to offer a measure of closure for former residents of IRS’s and their families”: para 64, citing Fontaine v Canada (Attorney General) , 2011 ONSC 4938 at para 68 , [2011] OJ No 3756 (QL) [ Stirland Lake ] .

She acknowledged that, while each case turns on its own facts, consistency among the decided cases is important: para 65. [ 14 ] The application judge generally preferred the evidence of Mr Mikkungwak and Sandra Omik (NTI’s affiant) over that of Canada’s Director of Settlement Agreement Operations West (Director), as his “knowledge of the historical relationship between Canada and the NWT is not deep, particularly with respect to the role of the Commissioner or the Executive Council at or around the time that Kivalliq Hall was established”: para 69.

Further, the Director’s “lack of expertise … is compounded by the paucity of evidence concerning the NWT generally and Kivalliq Hall specifically, that Canada through its sole affiant, [the Director], has placed before this court”: para 69. 1. Student Placement at Kivalliq Hall [ 15 ] With respect to

section 12.01(2)(a), it was agreed that Mr Mikkungwak resided at Kivalliq Hall from 1985 to 1989 for the purpose of education, but the parties disagreed about whether he was placed there “by or under the authority of Canada”. Mr Mikkungwak’s evidence was that he had expected to live at what later was classified as an Indian Residential School because that was the standard practice for Baker Lake students. However, “immediately before I departed, I was told that I … would live at Kivalliq Hall … [and] informed that the reasons for the change was that student enrollment at [Keewatin Region Education Centre] was low” Affidavit at para 2. [ 16 ] The application judge concluded that

section 12.01(2)(

a) had been satisfied as “it is clear that had Mr. Mikkungwak not been redirected to Kivalliq Hall, he would have resided at … a recognized Indian Residential School. In my view, diverting students from a recognized [Indian Residential School] to Kivalliq Hall … invites the inference that this placement was by or under the authority of Canada for the purposes of education”: para 77. 2. Care and Operation [ 17 ] The application judge noted that

section 12.01(3) set out a list of indicators to consider in determining whether Canada was jointly

or solely responsible for the operation of Kivalliq Hall and care of the children resident there, but that the considerations were not limited to those indicators: para 78. While it was not disputed that Canada had historically exercised much greater control and influence over the governance of the territories than over the provinces, a central dispute concerned the extent to which Canada exercised control or influence over education in the Northwest Territories during the period when Kivalliq Hall was approved and funded, and later operating. She held: [80] … two significant and interrelated indicators not enumerated in

Section 12.01(3), but arising from the relationship between the NWT and Canada, that support the conclusion that Canada was jointly responsible for the operation of Kivalliq Hall and for the care of the children resident there. The first is the general extent to which Canada remained involved in the education-related affairs of the Northwest Territories at the time Kivalliq Hall operated. This consideration is unique among

Article 12 applications, given the relationship between the territory and the federal government. The second indicator is the extent of the federal government’s involvement in approving and granting funding for the construction and operation of Kivalliq Hall. As has been previously established, whether Canada provided monies for the construction and operation of an institution is a relevant consideration in an

Article 12 application. [ 18 ] The application judge also assessed the Indicators. First, while Kivalliq Hall was built on Crown land, she concluded that was insufficient to infer that it was federally owned as such “an inference would de facto lead to the conclusion that the majority of buildings located in present day Nunavut are federally-owned for precisely the same reason, which, in my view, is illogical”: para 126. Second, Canada did not stand as a parent to children residing at Kivalliq Hall: para 128.

Third, Canada was “at least partially responsible for the administration of Kivalliq Hall, primarily through its continued involvement in the delivery of education to the residents of the Northwest Territories and its financial contribution to the construction and operation, of the institution – notably by way of funding the salaries of many of the staff of Kivalliq Hall”: para 131. Fourth, it was not alleged that Canada had a right to inspect Kivalliq Hall which favoured a finding that it was not jointly responsible for its operation: para 132.

Fifth and finally, Canada did not stipulate Kivalliq Hall as an Indian Residential School; however, she attached little weight to that because it would make an

Article 12 application unnecessary: para 133. [ 19 ] While concluding that many of the Indicators favoured finding that Canada was not jointly responsible for Kivalliq Hall, the application judge’s examination of the totality of the relationship between Canada and Kivalliq Hall led her to the opposite conclusion.

At the relevant time, Canada remained involved in education-related matters in the Northwest Territories by virtue of the continuing role of the Commissioner in the governance of the Northwest Territories (paras 87–99) and the Northwest Territories’ continuing financial dependence on Canada: paras 100–109. The process for approval and allocation of funds from Canada for the construction and operation of Kivalliq Hall indicated that Canada was jointly responsible for its operation and care of the children resident there: para 122.

The application judge distinguished Fontaine v Canada (Attorney General) , 2014 ABQB 7 [ Moosehorn Lodge QB ] (where Canada provided 35% not 100% of the capital cost as here) because of Canada’s relatively greater contribution to the capital and operating costs of Kivalliq Hall and the extent to which Canada was involved in the decision making concerning the allocation of those funds.

As well, Kivalliq Hall was built for the sole purpose of educating Inuit children. [ 20 ] The application judge attached significant weight to these non-enumerated considerations and concluded that Canada was jointly responsible for the operation of Kivalliq Hall and care of the children resident there. IV. GROUNDS OF APPEAL AND STANDARD OF REVIEW [ 21 ] At the oral hearing Canada abandoned its contention that the Indicators were paramount which leaves the more general arguments about the application judge’s analysis of

Article 12; and the submission that she made findings and drew inferences which had no basis in fact, ignored evidence and misapplied what evidence there was in the

Article 12 analysis. [ 22 ] Two new issues emerged at the oral hearing: first, is an

Article 12 determination of student placement and care based on an assessment of a ‘composite’ student, that is, a composite of all students who attended the institution for the entire period of its existence; and second, what effect should be given to the devolution of responsibility for education (and related matters) from Canada to the Northwest Territories after Mr Mikkungwak graduated, in 1989. [ 23 ] We have considered these issues but are not “satisfied that there is a ‘sufficient basis in the record on which to resolve the issue’”: Kahkewistahaw First Nation v.

Taypotat , 2015 SCC 30 at para 26 , [2015] 2 SCR 548 . It was clear from the application judge’s decision that she saw the relevant time period to be 1985 – 1989 when Mr Mikkungwak was in attendance at Kivalliq Hall: see for example paras 1, 16, 69, 81, 86, 93, 97, 107 and 108 of The Reasons. Nonetheless, these issues were not raised by Canada in its Notice of Appeal or factum. These are issues that can best be resolved when there is a complete record and full submissions, both at first instance and, if necessary, on appeal. [ 24 ] The standard of review of a chambers judge’s

interpretation of the Settlement Agreement is deferential: Canada (Attorney General) v Fontaine , 2017 SCC 47 , [2017] 2 SCR 205 : [ 35] The

interpretation of the [Settlement Agreement] is a question of mixed fact and law reviewable for palpable and overriding error. … the palpable and overriding error standard governs appellate review of the supervising judge’s

interpretation of the [Settlement Agreement]. … And, as shall become apparent below, the factual matrix looms large in ascertaining the meaning of this particular contract. [ 25 ] Palpable and overriding error is the standard of review for findings or inferences of fact and questions of mixed fact and law: Moosehorn Lodge CA at paras 16–19 .

[ 26 ] Simply stated, this appeal turns on the application judge’s inferences of fact about Canada’s role in the Northwest Territories from the time when the need for what became Kivalliq Hall was identified (1984), until the applicant student’s residence in Kivalliq Hall ended (1989). Canada contends that the inferences about Canada’s role were palpably wrong (“pure speculation and conjecture”) and warrant appellate intervention.

The respondents rely on the deferential standard of review and in particular the following passage from Housen v Nikolaisen, 2002 SCC 33 , [2002] 2 SCR 235 : [23] We reiterate that it is not the role of appellate courts to second-guess the weight to be assigned to the various items of evidence. If there is no palpable and overriding error with respect to the underlying facts that the trial judge relies on to draw the inference, then it is only where the inference-drawing process itself is palpably in error that an appellate court can interfere with the factual conclusion.

The appellate court is not free to interfere with a factual conclusion that it disagrees with where such disagreement stems from a difference of opinion over the weight to be assigned to the underlying facts. V. ANALYSIS 1. Student Placement by Canada -

Section 12.01(2)(a) [ 27 ] Canada submits on appeal that there was no evidence at all before the chambers judge that Mr Mikkungwak had been placed in Kivalliq Hall by Canada, referring to paragraphs 75–77 of the Reasons. What evidence there was concerned other students—the earliest of which attended Kivalliq Hall in the fall of 1989—and that evidence was that those students were placed in Kivalliq Hall by parents (either directly or via social services) or the government of the Northwest Territories.

Accordingly, Canada contends it was a palpable and overriding error to infer that Canada was responsible for placing the applicant or, indeed, any student. [ 28 ] It is true that Mr Mikkungwak merely states in his affidavit that he “was told” and “was informed” that he would be attending Kivalliq Hall, and said nothing about who said so. The application judge acknowledged this shortcoming but placed significant weight on the fact that he would have been attending a

Schedule E Indian Residential School had the last minute change not occurred, and this “invites the inference that this placement was by or under the authority of Canada for the purposes of education”: para 77.

He states in his affidavit that “the environment at Kivalliq Hall was foreign [and] [t]he experience resulted in a partial loss of my ability to speak Inuktitut and [an] extended period of separation from my family”. [ 29 ] We agree with Canada’s submission that the evidence falls far short of that adduced in Stirland Lake (when there was evidence of an express agreement with Canada about student placement). Canada also contends that mere diversion from an Indian Residential School to another school is not a basis for concluding that the school to which the student is diverted meets

Article 12’s requirements, relying on Teulon Residences CA at paras 40–44 and Lac La Ronge (Indian Band) v Canada (Attorney General) , 2017 SKCA 64 at paras 58 , 60, [2017] SJ No 367 (QL) [ Lac La Ronge CA ] . [ 30 ] In our view Teulon Residences CA is factually distinguishable. The Court held that: “not only did [the student] not live at an IRS, but he did not live in a residence affiliated with an IRS. He attended a public school with local, non-Aboriginal students that was run by a local school board unconnected with either Canada or an IRS”: para 43. Lac La Ronge CA offers more assistance.

The Lac La Ronge applicants submitted that students “were required to go to school and the only way they could do so was if they resided at a home near where the schools were located”, away from their parental home. The Saskatchewan Court of Appeal held: [60] To give effect to this argument, however, the Agreement would have to be amended. It would not be necessary to specify in

Article 12 that certain criteria had to be met. It would only be necessary to say “all Indian students who attended a school outside of their communities and were required to reside elsewhere in order to do so are entitled to compensation”. The parties to the Agreement must have intended something more than attendance at a school necessitating residence away from home in order to satisfy the first criterion.

The question remains one of fact: Were the children residing at the Home placed there by or under the authority of Canada for the purposes of education? [ 31 ] Despite Canada’s able argument, we are not persuaded that the inference made by the application judge is a reviewable error as defined by Housen .

We are reinforced in this conclusion by the fact that when Mr Mikkungwak was placed in Kivalliq Hall in 1985, Canada’s appointee, the Commissioner, had the statutory authority “respecting the conveyance of students” in the legislation governing education ( An Ordinance Respecting Education in the Northwest Territories ,

section 103(n)). We discuss the role of the Commissioner more fully in the next

section but for present purposes it is sufficient to set out the application judge’s findings that the office of the Commissioner was established by the Northwest Territories Act , RS, c N-22, s 1 (1970) and section 3(1) described the Commissioner as the “chief executive officer” of the Northwest Territories. Canada appointed the Commissioner.

The Act directed the Commissioner to “administer the government of the Territories under instructions from time to time given by the Governor in Council or the Minister [responsible for DIAND]”: Reasons at para 87. [ 32 ] For the reasons outlined above, we are not prepared to question the application judge’s failure to take into account that some other students were not placed in Kivalliq Hall by Canada after 1989. However, we do note that

section 12.01(2)(

a) uses the words “the child” (not “the children” as used in sub-section (b)) and two aspects of the

preamble to the Settlement Agreement are of assistance: B. The Parties desire a fair, comprehensive and lasting resolution of the legacy of Indian Residential Schools; C. The Parties further desire the promotion of healing, education, truth and reconciliation and commemoration; [ 33 ] We are mindful of the Supreme Court’s direction that we are not free to interfere or “second-guess the weight to be assigned to the various items of evidence” absent “palpable and overriding error with respect to the underlying facts” or “the inference-drawing process itself is palpably in error”: Housen at para 23 .

[ 34 ] Accordingly, we decline to interfere with the application judge’s inference of fact that Mr Mikkungwak was placed in Kivalliq Hall by Canada. 2. Operation of Kivalliq Hall and Care of the Children -

Section 12.01(2)(b) [ 35 ] Canada quite properly abandoned its position that the Indicators were paramount therefore we only discuss the remaining aspects of this ground of appeal; the application judge’s analysis of the factors that led her to conclude that

section 12.01(2)(

b) was satisfied, followed by her findings and inferences of fact. [ 36 ] Courts interpret

section 12.01(2)(

b) by examining the totality of the relationship between Canada and the institution to determine whether Canada was jointly or solely responsible for its operation and care of the children resident there. As stated by in Moosehorn Lodge QB (aff’d Moosehorn Lodge CA) : [12]

Section 12.01(2)(

b) calls for an examination of the totality of the relationship between Canada and the institution in question, and that the non-exhaustive indicators enumerated in

Section 12.01(3) are neither a checklist nor individually determinative. Rather, the enumerated indicators, together with appropriate other indicia, guide an evaluation of the broader nature of the relationship in issue.

The weight to be assigned to any particular indicator will necessarily be dictated by the circumstances of the institution in question. [ 37 ] This characterization has been widely adopted: Fontaine v Canada (Attorney General) , 2014 MBQB 209 , aff’d Assembly of Manitoba Chiefs v Canada (Attorney General) , 2017 MBCA 2 at para 15 [ Teulon Residences CA ] ; Fontaine v Canada (Attorney General) , 2018 ONSC 24 at para 51 [ Fort William Hospital (Sanatorium) School ] ; Fontaine v Canada (Attorney General) , 2014 BCSC 1939 at para 53 [ Belcher Island Hostels ] . [ 38 ] The

Article 12 analysis focuses on the broader relationship between Canada and the institution in order to “measure the degree to which Canada was responsible for the operation of an institution in which Indian children resided”: Fontaine v Canada (Attorney General) , 2013 SKQB 323 at para 34 ; 429 Sask R 100 [ Lac La Ronge QB ]. The question of whether an institution should be added to

Schedule “F” is contextual and depends on the specific facts under consideration: Fontaine v Canada (Attorney General) , 2011 ONSC 4938 at para 6 ; [2011] 4 CNLR 111 [ Stirland Lake ].

a) The Indicators Enumerated in s. 12.01(3) [ 39 ] A plain reading of

section 12.01(3) makes it clear that the Indicators are not a complete code, individually determinative or mandatory; the introductory clause states the Indicators “include, but are not limited to” and this is further supported by use of the disjunctive “or”. This is well supported by the case law which has held that the analysis is informed by the Indicators but no single one is determinative: Moosehorn Lodge QB at para 12 ; Teulon Residences CA at para 31 ; Belcher Island Hostels at para 53 .

If individual indicators support conflicting conclusions, the court must weigh all the evidence to determine if an institution is an Indian Residential School: Teulon Residences CA at para 31, 39 ; Fort William Hospital (Sanatorium) School at para 52. [ 40 ] The jurisprudence is also clear that courts may consider factors other than the Indicators when interpreting

section 12.01(2)(b): Moosehorn Lodge QB at paras 12, 49 ; Lac La Ronge CA at para 122; Fort William Hospital (Sanatorium) School at paras 67, 71. The Saskatchewan Court of Appeal has gone further and held that an institution need not satisfy any of the Indicators if the applicant can demonstrate that the criteria outlined in

section 12.01(2)(

b) is met: Lac La Ronge CA at para 108: In order to achieve that designation [as an Indian Residential School under

Schedule “F”], it was necessary to meet the criteria outlined in s. 12.01(2)(

b) or otherwise be able to persuade the supervising judge as to Canada's joint responsibility for the Home, using similar indicators as enunciated in s. 12.01(3). [ 41 ] This suggests that an

Article 12 application’s success is not dependent on satisfying the Indicators. The applicant must show either that Canada was prima facie jointly or solely responsible for the operation of the residence and care of the children resident there; or was jointly or solely responsible for the operation of the residence and care of the children resident there based on the Indicators or other factors relevant to the inquiry.

b) What other factors have been considered? [ 42 ] The following additional factors have been used to determine whether Canada was jointly or solely responsible for the operation of the residence and care of the children: t he role Canada had in its construction; the extent to which Canada conducted financial audits or played a role in its administration; how the institution was managed (i.e., was there an independent board of directors) and whether Canada played a role in relation to the board; and the extent to which Canada influenced staffing, curriculum development, instruction or management: Lac La Ronge CA at para 122.

A further review of the case law suggests that at least four other factors have been considered: Canada’s financial contribution to the institution; the relationship between Canada and the institution; Canada’s provision of clothing allowances for Indian students; and Canada’s provision of transportation for Indian students. Many of these factors could just as well be used to analyze the extent to which “Canada was at least partially responsible for the administration of the institution” pursuant to s. 12.01(3)(c).

c) Conclusion [ 43 ] The Indicators are non-exhaustive and no single factor is determinative. Instead, courts look at the totality of the relationship between Canada and the institution to determine if Canada was jointly or solely responsible for its operation of the institution and the students’ resident there. This determination is fact-specific and requires the court to weigh all of the evidence. [ 44 ] The application judge did not err in relying on factors other than the Indicators to reach her conclusion. This approach is consistent with the language of the

section and the jurisprudence.

[ 45 ] This takes us to the issue of whether the application judge’s inferences of fact warrant our intervention.

d) Operation of Kivalliq Hall and Care of the Children Resident There -

Section 12.01(2)(b) [ 46 ] Canada’s submits that the application judge’s conclusion—that the requirements of

section 12.01(2)(

b) had been satisfied—was palpably wrong because not only did she conclude that the Indicators were not satisfied (Reasons paras 126–134), she made palpably wrong inferences of fact that were not supported by the evidence in her assessment of the non-enumerated factors. [ 47 ] While it is not our role to re-weigh the evidence, we briefly discuss two of the Indicators then turn to other factors that weighed heavily in the application judge’s determination. [ 48 ] The first Indicator—section 12.01(3)(a)—is whether Kivalliq Hall was federally owned; the application judge was not prepared to conclude it was.

But related to that Indicator is Canada’s financial contribution to the capital cost of an institution, which has been consistently recognized in the case law as relevant, see e.g., Moosehorn Lodge QB at para 52 , aff’d Moosehorn Lodge CA at para 25–26, 31, 39 , where 35% of the funding for construction was deemed insufficient; and Lac La Ronge CA at para 123, which held that private funding militated against finding that Canada was responsible for the institution.

Courts are also more likely to find that Canada was responsible for an institution if Canada made general financial contributions to the institution, rather than contributions proportionate to the number of Indian students in attendance. [ 49 ] The application judge found that Canada funded the entire cost of the construction of Kivalliq Hall and paid at least some of its operating costs. (Canada conceded this at the appeal hearing.) These financial contributions are general financial contributions to the operation of the residence as a whole and weigh in favour of the conclusion that Canada was jointly or solely responsible for Kivalliq Hall and the children resident there. [ 50 ] Canada submits that the application judge’s finding that “I cannot go so far as to say that Canada stood as a parent to the children residing at Kivalliq Hall” (para 128) means that the second branch of the

section 12.01(2)(

b) test—“care of the children resident there”—was not satisfied. However, “care of” and “parent to” are different.

By analogy, see the presumption against tautology when interpreting legislation; the fact that different terms were used is indicative that they have different meanings. “Parent to” is merely one of the indicators to assess “care of” but the case law supports a broader evaluation of whether Canada was jointly responsible for the care of the children. “In that category [care of the children] I would include the provision of a counsellor and a nurse, making student travel arrangements to and from their home communities and requiring fire and safety inspections.”: Teulon Residences CA at para 35 .

The evidence considered by the application judge was that Canada provided nursing care for the students as well as funding for a gym teacher. [ 51 ] We now turn to the factors that weighed heavily in the application judge’s determination: Canada’s involvement in education- related matters in the Northwest Territories and its ongoing financial involvement in the operation of Kivalliq Hall. [ 52 ] On the basis of the evidence before her, the application judge was satisfied that “during the relevant period, the funding of the GNWT by Canada and the project of devolution between them was still evolving.

Canada remained involved in education-related matters in the Northwest Territories by virtue of at least two important considerations.” The first was the continuing role of the Commissioner in the governance of the Northwest Territories: paras 87–96. The second was the devolution of power; Canada’s position, which the application judge rejected, was that this was complete by 1984, when Canada approved and funded construction of Kivalliq Hall. The application judge relied on the NWT Commissioner John H.

Parker’s “Annual Reports of the Government of the Northwest Territories to the federal Minister responsible for [the Department of Indian and Northern Affairs]” to conclude that while devolution of power was underway, it was not complete by the time Kivalliq Hall began operation. The Commissioner was a Canada appointment, as were four representatives on the governance committee. And even in the course of Kivalliq Hall’s operation, Canada maintained a role; for example, nurses who cared for students were paid by Health Canada.

The legislation governing education, An Ordinance Respecting Education in the Northwest Territories , especially sections 3 (role of the Commissioner) and 103 “respecting the conveyance of students”, were also factors the application judge relied on to support her determination. [ 53 ] The application judge’s conclusion that “care and operation” were satisfied on the basis of the record was not a palpable and overriding error. Accordingly we dismiss the grounds of appeal associated with the second branch of the

Article 12 test. VI. CONCLUSION [ 54 ] On this record it was not a reviewable error for the application judge to designate Kivalliq Hall as a

Schedule F Indian Residential School. She considered and weighed the evidence, and considered the totality of the relationship between Canada and Kivalliq Hall in order to assess the degree to which Canada was responsible for the placement and care of its students and the operation of the institution. While it would have been possible to reach a different conclusion, that does not constitute reviewable error. [ 55 ] The appeal is dismissed. Appeal heard on February 13, 2018. Memorandum filed at Iqaluit, Nunavut this 20th day of July, 2018

Rowbotham J.A. Greckol J.A. Strekaf J.A. Appearances: C. Dickins, for the Appellant R. A. Murray, for the Respondent