Lac La Ronge Indian Band Appellant (Applicant) v. The Attorney General of Canada, The, 2017 SKCA 64

Court of Appeal for Saskatchewan Docket: CACV2470 Citation: Lac La Ronge (Indian Band) v Canada (Attorney General) , 2017 SKCA 64 Date: 2017-08-22 Between: Lac La Ronge Indian Band Appellant (Applicant) And The Attorney General of Canada, The Presbyterian Church in Canada, The General Synod of the Anglican Church of Canada, The United Church of Canada, The Board of Home Missions of the United Church of Canada, The Women’s Missionary Society of the Presbyterian Church, The Baptist Church in Canada, Board of Home Missions And Social Services of the Presbyterian Church in Bay, The Canada Impact North Ministries of the Company for The Propagation of the Gospel in New England (also known as The New England Company), The Diocese of Saskatchewan, The Diocese of the Synod of Cariboo, The foreign Mission of the Presbyterian Church in Canada, The incorporated Synod of the Diocese of Huron, The Methodist Church of Canada, The Missionary Society of the Anglican Church of Canada, The Missionary Society of the Methodist Church of Canada (also known as The Methodist Missionary Society of Canada), The Incorporated Synod of the Diocese of Algoma, The Synod of the Anglican Church of the Diocese of Quebec, The Synod of the Diocese of Athabasca, The Synod of the Diocese of Brandon, The Anglican Synod of the Diocese of British Columbia, The Synod of the Diocese of Calgary, The Synod of the Diocese of Keewatin, The Synod of the Diocese of Qu’appelle, The Synod of the Diocese of New Westminister, The Synod of the Diocese of Yukon, The Trustee Board of the Presbyterian Church in Canada, The Board of Home Missions And Social Service of the Presbyterian Church of Canada, The Women’s Missionary Society of the United Church of Canada, Sisters of Charity, A Body Corporate also known as Sisters of Charity of St.

Vincent de Paul, Halifax, also known as Sisters of Charity Halifax, Roman Catholic Episcopal Corporation of Halifax, Les Soeurs de Notre Dame-Auxiliatrice, Les Soeurs de St.

Francois d’assise, institut des Soeurs du Bon Conseil, Les Soeurs de Saint-Joseph de Saint-Hyancithe, Les Soeurs de Jesus- Marie, Les Soeurs de L’assomption de la Sainte Vierge, Les Soeurs de L’assomption de la Saint Vierge de L’alberta, Les Soeurs de la Charite de St.-Hyacinthe, Les Oeuvres Oblates de L’ontario, Les Residences Oblates du Quebec, La Corporation Episcopale Catholique Romaine de la Baie James (The Roman Catholic Episcopal Corporation of James Bay), The Catholic Diocese of Moosonee, Soeurs Grises de Montreal/Grey Nuns of Montreal, Sisters of Charity (Grey Nuns) of Alberta, Les Soeurs de la Charité des T.N.O., Hotel-Dieu de Nicolet, The Grey Nuns of Manitoba Inc.-Les Soeurs Grises du Manitoba Inc., La Corporation Episcopale Catholique Romaine de la Baie D’hudson – The Roman Catholic Episcopal Corporation of Hudson’s Bay, Missionary Oblates – Grandin Province, Les Oblats de Marie Immaculee du Manitoba, The Archiepiscopal Corporation of Regina, The Sisters of the Presentation, The Sisters of St.

Joseph of Sault St. Marie, Sisters of Charity of Ottawa, Oblates of Mary Immaculate-St. Peter’s Province, The Sisters of Saint Ann, Sisters of instruction of the Child Jesus, The Benedictine Sisters of Mt.

Angel Oregon, Les Peres Montfortains, The Roman Catholic Bishop of Kamloops Corporation Sole, The Bishop of Victoria, Corporation Sole, The Roman Catholic Bishop of Nelson, Corporation Sole, Order of the Oblates of Mary Immaculate in The Province of British Columbia, The Sisters of Charity of Providence of Western Canada, La Corporation Episcopale Catholique Romaine de Grouard, Roman Catholic Episcopal Corporation of Keewatin, La Corporation Archiépiscopale Catholique Romaine de St. Boniface, Les Missionnaires Oblates Sisters de St. Boniface-The Missionary Oblates Sisters of St.

Boniface, Roman Catholic Archiepiscopal Corporation of Winnipeg, La Corporation Episcopale Catholique Romaine de Prince Albert, The Roman Catholic Bishop of Thunder Bay, Immaculate Heart Community of Los Angeles Ca, Archdiocese of Vancouver – The Roman Catholic Archbishop of Vancouver, Roman Catholic Diocese of Whitehorse, The Catholic Episcopale Corporation of Mackenzie-fort Smith, The Roman Catholic Episcopal Corporation of Prince Rupert, Episcopal Corporation of Saskatoon, Omi Lacombe Canada Inc. And Mt. Angel Abbey Inc.

Respondent (Defendants) Larry Philip Fontaine in his personal capacity and in his capacity as the Executor of the estate of Agnes Mary Fontaine, deceased, Michelline Ammaq, Percy Archie, Charles Baxter Sr., Elijah Baxter, Evelyn Baxter, Donald Belcourt, Nora Bernard, John Bosum, Janet Brewster, Rhonda Buffalo, Ernestine Caibaiosai-Gidmark, Michael Carpan, Brenda Cyr, Deanna Cyr, Malcolm Dawson, Ann Dene, Benny Doctor, Lucy Doctor, James Fontaine in his personal capacity and in his capacity as the Executor of the Estate of Agnes Mary Fontaine, deceased, Vincent Bradley Fontaine, Dana Eva Marie Francey, Peggy Good, Fred Kelly, Rosemarie Kuptana, Elizabeth Kusiak, Theresa Larocque, Jane Mccullum, Cornelius Mccomber, Veronica Marten, Stanley Thomas Nepetaypo, Flora Northwest, Norman Pauchey, Camble Quatell, Alvin Barney Saulteaux, Christine Semple, Dennis Smokeyday, Kenneth Sparvier, Edward Tapiatic, Helen Winderman and Adrian Yellowknee Non-Parties (Respondent Plaintiffs) Before: Lane, Jackson and Whitmore JJ.A.

Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice Jackson In concurrence: The Honourable Mr. Justice Lane The Honourable Mr. Justice Whitmore On Appeal From: 2013 SKQB 323 , Regina Appeal Heard: September 27, 2016 Counsel: Michael Swinwood and Liza Swale for the Appellant Catherine Coughlan and Brent Thompson for the Respondent Jackson J.A. I. Introduction [ 1 ] The Lac La Ronge Indian Band appeals the refusal of Saskatchewan’s supervising judge to include the Timber Bay Children’s Home as an Indian Residential School under the Indian Residential Schools Settlement Agreement.

Classification as an “Indian Residential School” determines whether an individual applicant will receive compensation according to the terms of the Agreement. The Agreement represents a settlement in favour of class action claimants who sought redress for the significant social, emotional and physical harm caused by the residential school system. Nine governments, including the Government of Canada, and various churches are the other signatories to the Agreement. [ 2 ] The Band applied to add the Timber Bay Children’s Home to the list of Indian Residential Schools contained in

Schedule “F” of the Agreement. [1] The Timber Bay Children’s Home was known variously as the Montreal Lake Children’s Home, Mission School, Montreal Lake Home for Neglected Children, Timber Bay School/Group Home, Home for Children, Timber Bay Bible School, Christian Home for Children, and Timber Bay Boarding. Throughout these reasons, I will refer to the institution as the “Home” to encompass all of these names. [ 3 ] The criteria to add an institution to

Schedule “F” are as follows (s. 12.01(2)(a–

b) of the Agreement):

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. [ 4 ] The Home did not itself provide schooling, but it was used exclusively as a home for children who attended school elsewhere. The Government of Canada provided funding and some other services for Indian children who resided at the Home. [ 5 ] The supervising judge held the Home did not meet either criteria to be added as an Indian Residential School.

He also considered and dismissed two additional arguments, notably whether exclusion from the Agreement could be challenged as a breach of the Crown’s non-delegable fiduciary duty under Treaty No. 6, and could thereby be considered a breach of s. 7 of the Charter , or could be considered a separate breach s. 15 of the Charter. His reasons for dismissing the application are reported as Fontaine v Canada (Attorney General) , 2013 SKQB 323 , [2014] 1 CNLR 85. [ 6 ] In this Court, the Band sought to adduce fresh evidence.

After having considered the fresh evidence, the evidence before the supervising judge and all of the arguments, I have nonetheless concluded there is no basis for appellate intervention. The appeal is dismissed. II. Relevant Terms of the Agreement [ 7 ] On December 15, 2006, the nine provincial and territorial governments approved the Agreement with the express purpose of providing compensation to former residents of Indian Residential Schools – a specifically defined term. The superior provincial courts administer the Agreement.

These are the relevant terms to keep in mind when reviewing these reasons: May 8, 2006 Indian Residential Schools Settlement Agreement WHEREAS: A. Canada and certain religious organizations operated Indian Residential Schools for the education of Aboriginal children and certain harms and abuses were committed against those children; 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 ... . …

1.04 No Contra Proferendem The Parties acknowledge that they have reviewed and participated in settling the terms of this Agreement and they agree that any rule of construction to the effect that any ambiguity is to be resolved against the drafting parties is not applicable in interpreting this Agreement. … 18.06 Entire Agreement This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and cancels and supersedes any prior or other understandings and agreements between the Parties with respect thereto.

There are no representations, warranties, terms, conditions, undertakings, covenants or collateral agreements, express, implied or statutory between the Parties with respect to the subject matter hereof other than as expressly set forth or referred to in this Agreement. [ 8 ] What constitutes an Indian Residential School is defined in the Agreement as follows: 1.01

Definitions In this Agreement, the following terms will have the following meanings: … “Indian Residential Schools” means the following:

(1) Institutions listed on List “A” to the [Office of Indian Residential School Resolution Canada’s (OIRSRC)] Dispute Resolution Process attached as

Schedule “E”;

(2) Institutions listed in

Schedule “F” (“Additional Residential Schools”) which may be expanded from time to time in accordance with

Article 12.01 of this Agreement; and

(3) Any institution which is determined to meet the criteria set out in

Article 12.01(2) and (3) of this Agreement. [ 9 ] The mechanism and basis for adding an institution is set out in the Agreement: 12.01 Request to Add Institution

(1) Any person or organization (the “Requestor”) may request that an institution be added to

Schedule “F”, in accordance with the criteria set out in

section 12.01(2) of this Agreement, by submitting the name of the institution and any relevant information in the Requestor’s possession to Canada;

(2) The criteria for adding an institution to

Schedule “F” are:

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.

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

a) The institution was federally owned;

b) Canada stood as 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 [Indian Residential School].

(4) Within 60 days of receiving a request to add an institution to

Schedule “F”, Canada will research the proposed institution and determine whether it is an Indian Residential School as defined in this Agreement and will provide both the Requestor and the [National Administration Committee (NAC)] with:

a) Canada’s decision on whether the institution is an Indian Residential School;

b) Written reasons for that decision; and

c) A list of materials upon which that decision was made; provided that Canada may ask the Requestor for an extension of time to complete the research.

(5) Should either the Requestor or the NAC dispute Canada’s decision to refuse to add a proposed institution, the Requestor may apply to the Appropriate Court, or the NAC may apply to the court of the province or territory where the Requestor resides for a determination.

[ 10 ] “Appropriate Court” is defined as follows: “the court of the province or territory where the Class Member resided on the Approval Date ...” (Article 1.01). III. Basic Facts [ 11 ] The Home was located on Montreal Lake and in close proximity to several reserve communities, but it was not situated on reserve lands. It was opened in 1952 by the Northern Canada Evangelical Mission and was “dedicated to the salvation and care of neglected children” (Harvey R. Sider, “Timber Bay Children’s Home: A Ministry to Native Children” (April 2007) 30.1 Brethren in Christ History and Life 3–33 at 4).

The Mission was, at that time, an interdenominational Christian missionary organization active in many remote areas of northern Canada. [ 12 ] The Home had no integrated educational component. It was used as a home for children, primarily for those whose parents lived or worked in remote areas. However, the children residing at the Home attended school at either (

a) the public school in Timber Bay (operated by a provincially funded school board), which was approximately twenty-four kilometres away, or (

b) the school at the nearby Montreal Lake First Nation reserve, approximately one kilometre away. [ 13 ] In 1969, the Northern Canada Evangelical Mission transferred its ownership of the facility to the Brethren in Christ Church, an independent denomination somewhat affiliated with the Mennonite Central Committee Canada (also referred to in the documentation as MCC-Canada). [ 14 ] Residents of the Home included Indian, Métis and non-Indian children.

Canada provided funding to the operators of the Home for most of the Indian children in residence, while the Government of Saskatchewan, with a few exceptions, provided the balance of funding for Indian children who had been apprehended and non-Indian residents. [ 15 ] The number of children residing at the Home varied from year to year. For example, in 1968, 50 school-aged children lived at the Home: 10 were identified as Indian and 40 were Métis.

In 1978, 68 children lived at the Home: of whom, 54 were funded by the Department of Indian Affairs and Northern Development, 5 by the local school board, and 4 by the Saskatchewan Department of Social Services. Five other residents at that time received no external financial support. [ 16 ] Information from the Timber Bay Children’s Home: A Study in Effectiveness, and Funding for Native Children [Hadden Report], which was prepared in 1992 by Dr.

Laurie Hadden at the request of the Brethren’s board of directors, provides the following statistics, which can be found in the appeal book [AB] at page 367: Appendix II Children at Timber Bay Children’s Home (Related to Funding) Year Social Service Funding Indian Bands Through the Dept. of Indian Affairs Northern Lights School Division Total Average 1986–87 30 19 31 80 59 1987–88 17 21 29 67 58 1988–89 18 9 37 64 56 1989–90 24 9 25 58 50 1990–91 35 11 26 72 36.3 … … … 1991–92 23 6 19 50* 36.6 … … … *Private Placement include 2 children (Average .2) [ 17 ] The Home closed in 1994. IV.

Schedule “F” Application [ 18 ] In accordance with the terms of the Agreement, the Band applied to Canada, pursuant to s. 12.01(1), to have the Home added as an institution to

Schedule “F”.

Canada denied that application. [ 19 ] The Band then commenced the underlying proceeding pursuant to s. 12.01(5), requesting directions from the Court of Queen’s Bench’s judge, who had been designated as the supervising judge for the purpose of hearing such applications. [ 20 ] The application before the supervising judge required an in-depth review of the Home’s history and operations, as revealed in the records of the two church organizations that had owned it and in the records of the various government departments involved, beginning with the Indian Affairs Branch of the Department of Immigration and Citizenship and ending with the Department of Aboriginal Affairs and Northern Development. [ 21 ] In support of the request for directions, the following evidence was submitted on behalf of the Band: (

a) an affidavit of Sally Charles, a former guidance councillor and Band Education Coordinator; (

b) an affidavit of Peter Ross, who was a child resident at the Home;

(

c) an affidavit of Martha Cook, who was a child resident at the Home; (

d) an affidavit of Menno Wiebe, the Director of Native Concerns for the Mennonite Central Committee Canada from 1974 to 1998; (

e) an affidavit of Otto Driedger, Director of Child Welfare (SK, 1965–1968), Director of Corrections (SK, 1968–1971), and Chairman of the Conference of Mennonites (SK, 1970–1974); and (

f) an affidavit of Alisa Lombard, a residential schools researcher. [ 22 ] There followed a series of applications: first to determine the Band’s standing (see Sparvier v Lac La Ronge Indian Band , 2012 SKCA 94 , [2013] 1 CNLR 336) and then to fix the record, including several applications for disclosure. [ 23 ] Canada applied to cross-examine Sally Charles, Menno Wiebe, and Otto Driedger. The cross-examination of Ms.

Charles did not take place due to her ill health. [ 24 ] Canada’s evidence consisted of the affidavit of David Russell, Director of National Research and Analysis for the Indian Residential Schools Resolutions Department (September 1, 2011). The Band cross-examined David Russell. A number of undertakings were requested during Mr. Russell’s cross-examination resulting in over 1750 additional documents being produced. V. Settling the Issues to Be Decided on This Appeal A.

The Issues Considered by the Supervising Judge [ 25 ] The supervising judge found that the Band’s application raised three issues, which he considered in the following order: (

a) whether Canada’s refusal to add the Home to the Agreement constituted a breach of a non-delegable fiduciary duty arising from Canada’s obligations under Treaty No. 6, resulting in deprivations of liberty and security of the person contrary to s. 7 of the Charter ; (

b) whether Canada’s refusal to add the Home to the Agreement constituted unlawful discrimination contrary to s. 15(1) of the Charter by withholding a benefit from former residents that is made available to other individuals under the Agreement; and (

c) whether the Home had met the criteria under the Agreement to be included as an Indian Residential School. B. The Issues as Described by the Band [ 26 ] In its factum, the Band describes the issues as follows: 29. The following represents the points in issue on this appeal: a. the learned Chambers judge misinterpreted the Breach of Treaty No. 6 argument advanced and linked to

Section 7 of the Charter of Rights and Freedoms , thereby making an error in law; b. the learned Chambers judge misinterpreted the section 15(1) Charter of Rights and Freedoms argument in four ways; i. by misapplying the principles set out in Adrian v Canada (Minister of Health) , 2003 ABQB 142 , [2003] 5 WWR 683, affirmed 2004 ABCA 149 , [2004] 8 WWR 707; ii. by denying the legal principle “once governments enter into benefit programs for people who come under Charter protection, there is no need for those individuals to show that they are being discriminated against on one of the enumerated or analogous grounds”; iii. the learned Chambers judge erred when he said at paragraph 29 of the fiat, “the existence of a distinction on an enumerated or analogous ground has not been made out.

The proposed analogous ground, ‘place of residence while attending school off-reserve’, does not share the characteristics of other grounds determined by the courts to be analogous to those listed in s. 15(1)”; and iv. the learned Chambers judge erred when he said at paragraph 34 “The exclusion of the former residents of non-Indian Residential Schools from the benefits extended by the [Agreement] is, in my opinion, consistent with the purpose of the [Agreement] and does not constitute discrimination contrary to s. 15(1)”; c. the learned Chambers judge erred in not properly considering the documents tendered in Alisa Lombard’s affidavit, particularly as they related to the issue of placement of children by Canada and the use of mission schools by Canada; d. the learned Chambers judge erred in not fully considering relevant material in the Affidavit of Sally Charles, particularly as follows: i. ignoring evidence pointing directly to the placement of children by Canada; ii. ignoring evidence pointing to Dale McShane of the Department of Indian Affairs as to placement of children by Canada; iii. ignoring evidence speaking to inspections by Sally Charles on behalf of Canada;

iv. ignoring evidence pointing to the development of protocol, budgets and inspections by the Department of Indian Affairs office in Prince Albert, as it applied to Timber Bay Children’s Home, all set out in her affidavit; v. ignoring evidence that Sally Charles stated that Timber Bay Children’s Home was treated as a residential school in the education portfolio; vi. ignoring evidence that stated that Timber Bay Children’s Home was indistinguishable from Prince Albert as an institution; e. the learned Chambers judge erred in not fully considering evidence from the affidavits and cross-examinations of Menno Wiebe and Otto Driedger, as follows: i. the learned Chambers judge erred at paragraph 58 when he observed that Mr.

Wiebe “made few references to any role played by Canada in its operation or administration”, as there was evidence to the contrary of that statement; ii. not fully assessing the evidence as it related to Canada’s control over the operation or administration of the institution; iii. in not giving any weight to the evidence of Otto Driedger, at paragraph 65 that, “[i]n his capacity as the Director of Institutions for the Welfare Department of the Province of Saskatchewan, Mr.

Driedger recalls that the Province of Saskatchewan refused to license [the Home] for use by provincial social services because ‘it was classified as an institution or residence for educational purposes and therefore a federal government responsibility through the Department of Indian Affairs’”; f. the learned Chambers judge erred in not properly evaluating all of the evidence produced by way of undertakings from the cross- examination of Canada’s affiant David Russell, in that only reference was made to three documents from 3 volumes of Undertakings.

The evidence not evaluated was pertinent to the indicators outlined in

Article 12 of the [Agreement]; g. the learned Chambers judge erred in not finding that Canada: i. stood as a parent to the child sent to [the Home] by virtue of the Indian Act ; ii. had responsibility and did place the child; iii. had a statutory and non-delegable fiduciary duty regarding placement of the child and subsequent supervisory duties; iv. could not delegate its duties to Chief and Band Council; v. fulfilled criteria under

Article 12, thereby being liable; vi. at paragraph 91, “There is [also] no evidence that Canada had a right to inspect [the Home] or ever did so”, as there was much evidence to the contrary; h. such further grounds as counsel may advise and this Honourable Court may allow. [ 27 ] The Band seeks the following remedies in relation to the issues as it has cast them: 98. The following relief is sought by this appeal: a. A declaration that the Charter of Rights and Freedoms is applicable in these circumstances; b. A declaration that a

Section 7 Charter breach occurred when the Aboriginal children who attended Timber Bay Children’s Home were taken from their homes and placed there for educational purposes; c. A declaration that a

Section 15 Charter breach occurred when Canada rejected Timber Bay Children’s Home, pursuant to

Article 12.01(4) of the [Agreement], as an eligible institution under the Settlement Agreement; d. A declaration that the Charter breaches can be considered as separate indicators in the

Article 12 process and that the Court has jurisdiction to make this consideration; e. An appropriate remedy pursuant to s. 24(1) is to add the Institution known as Timber Bay Children’s Home to

Schedule “F” of the [Agreement] pursuant to

Article 12.01(5) having consideration for the total evidentiary basis put forward with the Charter breaches being one piece of a larger whole; and f. Costs for this appeal; g. Such further and other relief as counsel may advise and this Honourable Court permit. C. The Issues as Canada Sees Them [ 28 ] Canada does not accept the Band’s statement of the issues, and submits these are the issues that should be considered – and in this order: (

a) Did the supervising judge commit any reviewable error in his consideration of the evidence, including in his application of the

Article 12 test under the Agreement? (

b) Did the supervising judge err in declining to grant relief on the basis of Treaty No. 6 or s. 7 of the Charter ?

(

c) Did the supervising judge err in declining to grant relief on the basis of s. 15(1) of the Charter? D. The Approach to the Issues on This Appeal [29] In my view, Canada’s approach to the issues is the correct one. The Band’s application under

Article 12 should be decidedbefore considering the Treaty and Charter issues. The latter arguments assume a finding that the Agreement does not provide the Bandwith a remedy. Further, the Treaty and Charter issues depend, for any possibility of success, on a complete understanding of theevidence. [30] I would, however, re-cast the issues to take into account an argument the Band asserts had been raised with the supervisingjudge, but appears to have been overlooked by him. These are the issues that I will consider: (

a) first issue – whether the supervising judge erred by not considering the principles of reconciliation and the Band’s Treatyarguments as interpretive aids when construing the Agreement; (

b) second issue – whether the supervising judge erred by not finding that the Band had met the criteria under

Article 12 of theAgreement; (

c) third issue – whether the supervising judge erred by failing to find that Canada’s refusal to add the Home to

Schedule “F”constituted a breach of a non-delegable fiduciary duty arising from Canada’s obligations under Treaty No. 6, resulting in deprivations ofliberty and security of the person contrary to s. 7 of the Charter; and (

d) fourth issue – whether the supervising judge erred by failing to find that Canada’s refusal to add the Home to

Schedule “F”constituted unlawful discrimination contrary to s. 15(1) of the Charter by withholding a benefit from former residents that is madeavailable to other residents. VI. The Standard of Review [31] The identified issues involve questions of law, mixed fact and law, and fact alone. The Charter arguments and thedetermination of the correct legal principles to apply in order to properly construe the Agreement are questions of law and are reviewableon a correctness basis: Housen v Nikolaisen, 2002 SCC 33 at paras 33 to 35, [2002] 2 SCR 235.

The question of whether the supervisingjudge ignored or overlooked relevant evidence also attracts a standard of review of correctness: P.S.S. Professional Salon Services Inc. vSaskatchewan (Human Rights Commission), 2007 SKCA 149 at para 68, [2008] 5 WWR 440. [32] The supervising judge’s

interpretation of the Agreement is entitled to deference and reviewed on a standard of reasonableness:Canada (Attorney General) v Alexis, 2015 ABCA 132 at para 18, [2015] 3 CNLR 25 [Alexis CA]; and Assembly of Manitoba Chiefs vCanada (Attorney General), 2017 MBCA 2 at para 15, leave to appeal to SCC refused, 37466 (17 August 2017) [Teulon Bay]. Findingsof fact and inferences drawn from facts are reviewed on a standard of palpable and overriding error: Alexis CA at para 18, and TeulonBay at paras 18 to 20. A supervising judge’s determination of whether an institution meets the criteria in either s. 12.01(2)(

a) and (

c) isreviewable on the palpable and overriding error standard: Alexis CA at para 44 and Teulon Bay at para 39. [33] With respect to determining what constitutes a palpable and overriding error, it is worth noting that in Benhaim v St-Germain,2016 SCC 48 at paras 38–39, [2016] 2 SCR 352 [Benhaim], the Supreme Court endorsed the following descriptions of that standard: [38] It is equally useful to recall what is meant by “palpable and overriding error”.

Stratas J.A. described the deferential standard asfollows in South Yukon Forest Corp. v R., 2012 FCA 165, 4 B.L.R. (5th) 31, at para. 46: [46] Palpable and overriding error is a highly deferential standard of review ... . “Palpable” means an error that is obvious. “Overriding”means an error that goes to the very core of the outcome of the case. When arguing palpable and overriding error, it is not enough to pullat leaves and branches and leave the tree standing.

The entire tree must fall. [39] Or, as Morissette J.A., put it in J.G. v Nadeau, 2016 QCCA 167, at para. 77, [TRANSLATION] “a palpable and overriding error isin the nature not of a needle in a haystack, but of a beam in the eye. And it is impossible to confuse these last two notions”. VII. Fresh Evidence [34] Following the filing of its factum, the Band applied for an order from this Court for the production of additional documentsand subsequently applied to adduce some of the new documentation as fresh evidence.

Canada submits this evidence does not meet thetest in Palmer v The Queen, (SCC), [1980] 1 SCR 759 [Palmer], but, nonetheless, would not oppose the production of theevidence for further consideration as part of the evidentiary record on appeal in “the interests of justice and transparency” (memorandumof the Attorney General of Canada, February 29, 2016). [35] The criteria to receive fresh evidence were articulated in the criminal context in Palmer at page 775:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial … .

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affectedthe result.

This criteria is largely applicable in the civil context, with the applicant assuming a greater burden with respect to due diligence inparticular. [36] In R v Stolar, (SCC), [1988] 1 SCR 480 [Stolar], the Supreme Court of Canada set out the proper procedureto follow when an application is made to an appellate court to admit fresh evidence: The procedure which should be followed when an application is made to the Court of Appeal for the admission of fresh evidence is thatthe motion should be heard and, if not dismissed, judgment should be reserved and the appeal heard.

In this way, the Court of Appeal hasthe opportunity to consider the question of fresh evidence against the whole background of the case and all the other evidence in thecase. It is then in a position where it can decide realistically whether the proffered evidence could reasonably have been expected toaffect the result of the case. It is then in a position where it can decide realistically whether the proffered evidence could reasonably havebeen expected to affect the result of the case.

If, then, having heard the appeal, the court should be of the opinion that the evidence couldnot reasonably have affected the result, it would dismiss the application for the introduction of fresh evidence and proceed to adisposition of the appeal.

On the other hand, if it should be of the view that the fresh evidence is of such nature and effect that, takenwith the other evidence, it would be conclusive of the issues in the case, the Court of Appeal could dispose of the matter then and there.Where, however, the fresh evidence does not possess that decisive character which would allow an immediate disposition of the appealbut, nevertheless, has sufficient weight or probative force that if accepted by the trier of fact, when considered with the other evidence inthe case, it might have altered the result at trial, the Court of Appeal should admit the proffered evidence and direct a new trial where theevidence could be heard and the issues determined by the trier of fact. (Emphasis added, at 491–492) [37] In this appeal, the Court has concluded that it does not need to consider the questions of due diligence, relevance or credibility.The principal question is to decide whether, if believed, the fresh evidence could reasonably, when taken with the other evidenceadduced at trial, be expected to have affected the result. [38] The fresh evidence took the form of an affidavit of Liza Swale, co-counsel for the Band, sworn September 9, 2016, which inturn attaches a number of exhibits, including (as the first exhibit) an earlier affidavit by her, sworn January 31, 2016, which describes thechronology leading to the request to put forward fresh evidence, and puts forward three documents relied upon by the Band as freshevidence.

I will summarize those three documents from Exhibit “1”: (

a) document #1 – minutes of a meeting of the Board of Directors of the Prince Albert Student Residence, dated May 22, 1973,containing the following recommendations: It was recommended that the Federation of Saskatchewan Indians together with Indian Affairs undertake an in-depth study of theBoarding Home program and the drop-out problem, and a thorough scrutiny of the Special Education program in the Prince AlbertDistrict. The results of the study should be made available to the Prince Albert District Chiefs by the end of the school term.

There was some discussion as to whether it might be possible to set up a couple of dormitories to accommodate High School studentswho do not wish to go into the Boarding Home program. It was agreed that the idea rated favourable consideration as the facilities of theresidence are ideal for recreation, acceptance and educational motivation. … It was recommended that Indian Affairs hire more Indian personnel for Guidance Counsellor positions since they are moreunderstanding of the problems of Indian children. This was rated as an urgent concern.

Chief Harold Kingfisher affirmed that the Educational Liaison Workers are responsible to and will work directly under the Coordinator. (Emphasis added, motion record, p. 36); (

b) document #2 – a letter from the District Superintendent of Education for the Prince Albert District, dated March 4, 1974, tothe Assistant Registration Director of Education for the Saskatchewan region responding to a Band Council resolution (B.C.R.) inrelation to the Sturgeon Lake Band: Attached is Sturgeon Lake B.C.R. #216 requesting the services of an Educational Consultant to assist in the design and programming ofa new school. Since this is a new position and District budget does not contain salary dollars it may have to be negotiated withHeadquarters.

Education Counsellor, Len Neufeld is presently working with the Sturgeon Lake Band and basically performing this roleat the moment. (Emphasis added, motion record, p. 40); and (

c) document #3 – a memorandum from the Education Counsellor for the Prince Albert District (an employee of Canada), datedOctober 18, 1974, asking for “a nominal roll of students in your school falling under the following categories” (motion record, p. 41).The categories included the students in the “student” residence (i.e., the Home).[2] [39] The balance of the exhibits appended to Liza Swale’s September 2016 affidavit are as follows: (

a) Exhibit 4 – a document entitled “Breakdown of Students”, dated January 13, 1975, showing 334 children in residence at thePrince Albert Student Residence of which 134 came from Lac La Ronge;

(

b) Exhibit 5 – a document entitled “Summary of Education Counsellor’s Caseloads”, showing Mr. McShane as having “responsibility” for as many as 89 Indian children in any given month; (

c) Exhibit 6 – a memorandum to, inter alia , Mr. McShane, dated May 14, 1971, showing the following: D. Mr. McShane, (

a) to assign authority numbers to all Educational Assistance applications (

b) to keep an up-to-date Shannon file of original copies of all Prince Albert district Educational Assistance applications arranged alphabetically (

c) to keep an up-to-date alphabetical list of all Educational Assistance students (

i) from Prince Albert District (ii) from other Districts who attend school in Prince Albert (

d) to keep financial commitment records … F. Mr. French, Mr. McShane, and Mrs. Pitzel , (

a) to do boarding home assessments and preparation of student placements … . (Underline emphasis added, motion record, p. 61); (

d) Exhibit 7 – a document entitled “Position Analysis Schedule”, dated April 26, 1972, describing the duties of the “Education Counsellor” and indicating, by way of a “Summary”, that the Education Counsellor acts “[u]nder the direction of the District School Superintendent or the District Superintendent of Education” in the implementation of the student counselling program, and provides “guidance and counselling services to students in the In-School and Post-Secondary School programs” (p. 63); (

e) Exhibit 8 – a memorandum entitled “Student Residence Transfers”, dated June 20, 1972, from the Regional Superintendent of Education, Saskatchewan Region, providing a protocol to follow (essentially preventing students from withdrawing from a student residence without written approval from a number of individuals); (

f) Exhibit 9 – a letter directed to the Assistant to the Chief of the Federation of Saskatchewan Indians, dated September 15, 1972, providing a list of assigned areas for counsellors and counsellor aids and showing that Mr. McShane is the counsellor for the Lac La Ronge Band; (

g) Exhibit 10 – a letter from the District Superintendent for the Prince Albert District to the Regional Superintendent of Education with the Department of Indian Affairs in Regina, dated June 4, 1973, attaching a list of actions and responsibilities arising out of the minutes of a Northern School Board meeting, showing in particular that Mr. McShane would be responsible to “[h]andle space, teacher requirement and enrolment forecasts for Otter Lake School for 1973–74 school year ... .” (p. 76); (

h) Exhibit 11 – minutes of a “Meeting at the Prince Albert Indian Student Residence”, dated September 14, 1973, showing that Chief Kingfisher, as chairman of the Prince Albert District Chiefs, stated that “the Counsellor Technicians are now limited in their effectiveness by lack of money” and requested that the “[Indian Affairs Branch (IAB)] find more money for travel and increased salaries” (p. 80); (

i) Exhibit 12 – a document entitled “Indian Education Counsellors Training Program”, dated February 7, 1974, showing a budget for a training program in the amount of $57,800 per year; (

j) Exhibit 13 – a Band Council resolution, dated August 2, 1974, resolving “that the D.I.A.N.D. [Department of Indian and Northern Affairs] be prepared to assign an Education Counsellor to work specifically with the Lac La Ronge Band to assist in developing the vast educational program development planned in the La Ronge area” (p. 93); (

k) Exhibit 14 – minutes of the Prince Albert Chiefs’ Conference, dated February 15, 1974, containing the following (pp. 95– 96): The Chiefs again stated that this was [redacted] responsibility to follow up on these resolutions, even if she must go to the Federal level herself to find out how far they have gone. Resolution – School Children and the Boarding Home Program Resolution – Student Residences Resolution – Counselling of School Children Education Counsellors should provide reports to the District Chiefs. The Chiefs request communication between them and the Education Branch of the Indian Affairs. (

l) Exhibit 15 – a letter from the District Superintendent of Education for the Prince Albert District to the Chief of the Band, dated March 4, 1974, showing the following (p. 98):

1. … Education Counsellor, D. McShane has been assigned specifically to the Lac La Ronge Band effective March 11, 1974 as per your request at the meeting. I may require him to assist the new Counsellor assigned to the remainder of his area for a time or two but he should be able to devote his efforts to assisting the Band in their educational goals full-time from March 11 for the most part. I’m certain that he will justify the confidence you have deservedly expressed in his services. [3] (

m) Exhibit 16 – a letter from the District Superintendent of Education for the Prince Albert District to the Assistant Regional Director of Education for the Saskatchewan Region, dated March 4, 1974, responding to several Band Council Resolutions including the following (pp. 100–101): 2. … This is a request for federal construction on the Lac La Ronge Reserve. The Band will need to be aware of the stages involved in drawing up such a major proposal and of the time factor. Counsellor, D.

McShane is prepared to work closely with the Band to begin gathering information necessary for a formal presentation. … 3. … The case load for Education Counsellor, D. McShane has been rearranged so that his specific area of service is solely to the La Ronge Band. No further action is necessary on this B.C.R. as I will respond from this office. … A workshop on the stages involved in a major capital proposal is being held in this office on March 7 following which each Education Counsellor should be familiar with the steps and information necessary in the development of the proposal; (

n) Exhibit 17– a letter from the Education Counsellor for the Prince Albert District to the Guidance Counsellor of St. Mary’s High School in Prince Albert, dated March 8, 1974, indicating that there was going to be a school committee conference in Saskatoon with a panel on the Boarding Home Program of the Prince Albert District. The panel would include an education counsellor, school counsellor, a boarding home parent, student, a counsellor technician and a natural parent. Ms. Sally Charles was listed as the counsellor technician; (

o) Exhibit 18 – a letter from the District Superintendent of Education for the Prince Albert District, dated May 5, 1975, directed to all education counsellors, indicating that “[a]ll Special Training requirements will be channeled through Mr. D McShane as indicated” (p. 106); [4] (

p) Exhibit 19 – minutes of an “Education Counsellors’ Meeting”, dated April 21, 1975, showing the following (pp. 108–109): 7. On the basis of the developments made in this regard in the workshop of Counsellors held at La Ronge some time ago and further discussions in one of the Counsellor’s regular meetings, discussion converged on the obsolescence of the job description of Counsellors drawn years ago. The services now rendered by the Counsellors are far different and a new pattern of special services clearly stands out in bold relief against the background of general services.

Pat gave the meeting the favourable reaction which the specialist services have evoked from the Chiefs and from the Regional Office. … A list of services that are now being rendered by Counsellors was drawn up and tentatively assigned to the following after considerable discussion. … 4. Dale Supplies – Instructional – Capital Purchasing – Playground Equipment – Janitorial Pilot Training, OFY, Summer School, Driver Education, Summer Student Employment; (

q) Exhibit 20 – a memorandum from the Assistant Director, Education Operations, Indian and Eskimo Affairs, Ottawa, regarding “Counsellor Technicians – Salaries”, dated December 4, 1975, providing the background of Indian counselling services as follows (p. 112): In the early 60’s a few Indian Attendance Officers were employed on a part-time basis either by the Department or Unit Boards to decrease attendance problems in the schools.

In the latter part of the 60’s some Indian Counselor Aids were employed either through the Department or Unit Boards, to provide counselling services in conjunction with the federally-employed Education Counsellors. The Counsellor Aids were paid at the T.E.A. salary grid. From approximately 1969, due to repeated requests from Band Councils, more Counsellor Aids, now called Counsellor Technicians, were employed under Band Councils and paid on the T.E.A. salary grid. They became band employees.

In March, 1972, the Counsellor Technicians met to form an association in order to get better salaries and set up a training program for professional development. In 1973, the Counsellor Technicians’ Association requested discussions to receive salary at the W.P. salary grid [Welfare Programme of the federal government] and to have a job description drawn up.

The Department recommended using a similar job description and salary grid as the Social Counsellors in the Manitoba Region. This was rejected and the Counsellor Technicians’ Association requested and was granted to set up their own job description and salary grid. The salary grid, the Association used, was based on the W.P. salary grid.

Attached to Exhibit “20” is a Report on Wages, Expenses, and Salaries of the Saskatchewan Indian Guidance Counsellors Association , dated November, 1975, identifying a problem as follows (pp. 114–115): The primary problem should be to define the roles of the I.G.C. [Indian Guidance Counsellor] and I.A.B. Education Counsellor from the perspective of providing the best possible services for Indian children through a cooperative team approach. With a division of labour on the basis of skills and expertise. A further segment discusses the “Relationship to I.A.B.

Education Counsellors”: This problem was discussed in all districts and all D.S.E. (except Saskatoon) agreed that it was a matter of concern and a matter for continuing investigation. The idea of a Task Force consisting of I.G.C.’s and I.A.B. Education Counsellors, one from each district, ought to be proceeded with. Possible terms of reference could be to investigate and make recommendations requiring: 1./ The plans of the Department for the position of Education Counsellor & Indian Guidance Counsellors .

The decreasing number of education counsellors due to attrition and the persistence of the “rumour” that Education Counsellors are to be phased out and replaced by Indian Guidance Counsellors, should be closely investigated. (Emphasis in original, p. 116); (

r) Exhibit 21 – an undated document entitled “Counsellor Technicians Training Program”, which reads as follows (p. 118): Five years ago a need became apparent for the involvement of more Indian people in the counselling program, mainly to serve as a link between the reserve and the school, the reserve in the boarding home or student residence. Initially these Indian counsellors were employed in the teacher aid subgroup with the title of Counsellor Technicians.

Initially, Counsellor Technicians and Education Counsellors were to work as a team to provide satisfactory counselling services for Indian students in provincial and federal schools. There are approximately 44 Counsellor Technicians presently employed in the Region. Four are Departmental employees. Three are employed through unit boards, and the remainder are band employees. Approximately three years ago, the Counsellor Technicians formed an association to look at developing a training program and to reclassify the Counsellor Technicians from the teacher aid salary level to the WP salary level.

The training program was designed to integrate academic learning with practical experience. The program is to assist the Counsellor Technicians in acquiring skills required to work productively with students, parents, band councils, school committees, teachers, school and other professional groups. Regular in-classroom instruction will take place in each of the districts where counsellors are in the field. Assistance with readings and assignments will be available. The general objective is to have students complete at least three classes per year and one more during the summer months. (

s) Exhibit 22 – an “Operating Expenditures Management Variance Report” from the Department of Indian Affairs and Northern Development, for the period ending April 3, 1973, providing statistics regarding the payment for 114 Boarding students plus the “Montreal Lake Children’s Home” (note that the Home was separate from the other expenditures); and (

t) Exhibit 23 – a document entitled “1978–79 Projected Tuition Costs”, showing expenditures for the Montreal Lake Children’s Home for the period covering April 1978 to March 1979, being a total of $65,611 (p. 122). [ 40 ] Liza Swale’s January 31, 2016, affidavit also puts forward, as fresh evidence, documents from an earlier appeal to this Court, Ross v Government of Saskatchewan and Canada , 2014 SKCA 96 , [2015] 1 CNLR 370 [ Ross ], [5] and from the Court of Queen’s Bench file in that same action. These documents include the following: (

a) an affidavit of Pam Sutherland [Sutherland Affidavit] (from volume 2 of the Ross appeal books appearing on Court of Appeal file CACV2484), dated February 13, 2013, and all materials attached, which include (

i) the complete Hadden Report, dated November 6, 1992; and (ii) a “Program Evaluation of Timber Bay Children’s Home” by Whole Life Counseling dated September 19, 1991, by Charles R. Collett [Collett Evaluation]; (

b) an affidavit of Brenda Lee Watier [Watier Affidavit], dated January 18, 2013 (in particular Exhibit “C”); and (

c) an affidavit of Raymond Frogner [Frogner Affidavit], dated January 18, 2013, and filed April 22, 2013 (in particular Volume 4 of 4: Exhibits “Q”, “U”, “CC” and “FF”). [ 41 ] The Government of Canada commissioned the Sutherland Affidavit. I am uncertain why the Band asked the Court to consider much of this affidavit as, apart from the Hadden Report and the Collett Evaluation, it is composed largely of minutes of board meetings of the Brethren in Christ Church. These meetings show that Canada was never a member of the Board and on only one occasion, towards

the end of the life of the organization, did representatives of Canada appear to explain funding changes ( Ross material, AB637): Since Timber Bay Children’s Home is doing an evaluation of the Home at this time, it was important to meet with the Heads of Social Services and Indian Affairs to determine what services are needed, are services needed, is there a change in the direction that we should go or perhaps, some other ideas we need to address.

The budgets do, however, show significant funding from Canada and, in that regard, repeat aspects of the evidence that the supervising judge considered. [ 42 ] As well, it must be noted that the Hadden Report and the Collett Evaluation are clearly not fresh evidence, as they are already part of the trial record.

For some reason, the Hadden Report is missing two pages in the appeal book, but the missing pages do not appear to be material. [ 43 ] With respect to the Ross evidence, and its importance as fresh evidence, the Band relies on statements made by Ottenbreit J.A. to this effect in Ross v Saskatchewan , 2014 SKCA 96 , [2015] 1 CNLR 370: [34] There is merit in the argument that the allegations in the statement of claim respecting the funding of construction of the Home and funding thereafter and the continued involvement of Canada appear to have some basis in fact given the contents of the affidavit of Mr.

Frogner which sets out some of the involvement of Canada. [35] Interestingly, the Indian Affairs Branch documents tendered as evidence refer to the enterprise as a “residential school”. Additionally, the affidavit of Ms. Watier suggests possible coercion involved in her attendance at the Home and School possibly providing some basis other than funding to ground liability. [ 44 ] In my view, the Band takes these comments out of context.

They go to the question of whether or not leave should be granted to appeal a decision refusing to certify a class action against the Governments of Canada and Saskatchewan for alleged abuse and mistreatment that took place at the Home. On the leave application in the Ross matter, Ottenbreit J.A. was considering whether there was some evidence in support of a claim by the former residents of the Home for the purposes of satisfying the Rothmans criteria ( Rothmans, Benson and Hedges Inc. v Saskatchewan , 2002 SKCA 119 at para 6 , 227 Sask R 121).

No one questions whether there is some evidence to support the Band’s claim. Rather, the question is the sufficiency of the evidence for the purposes of inclusion under the Agreement – a different and final matter, which can only be reviewed according to the standard of review outlined earlier in these reasons.

Nonetheless, with Canada’s concurrence, I have reviewed the Ross materials that the Band offered as fresh evidence, notably the Watier Affidavit and the Frogner Affidavit. [ 45 ] After considering the fresh evidence in the context of the whole of the evidence, I have concluded that it should not be admitted ( Stolar at pp. 491–492). It is principally relevant to the placement criterion (s. 12.01(2)(

a) of the Agreement) in that some aspects of the fresh evidence indicate the extent to which Canada funded some of the children who resided at the Home and show Canada’s involvement in the placement of the children there. But, as I will demonstrate in these reasons, the evidence is not such that it meets the fourth Palmer criterion. [ 46 ] The fresh evidence has even less effect on the responsibility criterion (s. 12.01(2)(

b) of the Agreement). That particular criterion requires the supervising judge to conclude that Canada “was jointly or solely responsible for the operation of the residence and care of the children resident there”. A non-exhaustive list of indicators of this criterion permit the supervising judge to consider whether “Canada was at least partially responsible for the administration of the institution”. The fresh evidence is not persuasive on this issue.

As Canada submitted, the fresh evidence would not have changed the outcome before the supervising judge. [ 47 ] I will make more specific references to the fresh evidence in relation to the particular issues in the remainder of these reasons. VIII. First Issue: Principles of Reconciliation and the Band’s Treaty Arguments as Interpretive Aids A. The Band’s Argument [ 48 ] One of the affidavits placed in the record by the Band (sworn by Alisa Lombard) attached documents that she states, “illustrate the political atmosphere and policy that was the basis for the creation” of the Home (AB399, at para 4).

Those documents were noted in the supervising judge’s decision: [44] … The public documents attached to Ms. Lombard’s affidavit include:

i) Sections of the 1844 Bagot Commission Report, which recommended the “establishment of boarding schools to counter parental values and promote Christianity”; ii) Nicholas Flood Davin’s Report on Industrial Schools for Indians and Half-Breeds , dated March 14, 1879, as well as the Order- in-Council which adopted its recommendations as the policy of the Government of Canada; iii) Numerous excerpts from annual reports of the Department of Indian Affairs from years between 1883 and 1955; iv) Correspondence between the Department of Indian Affairs and [Northern Canada Evangelical Mission] in relation to [Northern Canada Evangelical Mission’s] activities at Deschambault Lake, Saskatchewan; and

v) A copy of Prime Minister Stephen Harper’s apology for Canada’s residential school policy, dated June 11, 2008.

[49] In considering these documents, the supervising judge wrote the following: “None of the above-noted documents makesreference to [the Home] or Canada’s relationship with it. They are not, therefore, relevant to the test I am required to apply pursuant toArticle 12” (at para 45). [50] The Band argues that the supervising judge misinterpreted its argument on this point. Ms. Lombard’s affidavit was offered aspart of the Band’s submissions that the principles of reconciliation and the Charter values underlying the negotiations leading to theAgreement should be used when interpreting it. [51] Since the Band’s arguments are based on contract

interpretation, it submits the intention of the parties governs. In that regard,the Band asks this Court to consider, in particular, the apology embodied in the letter of Prime Minister Harper: “Statement of Apologyto Former Students of Indian Residential Schools”, online: Indigenous and Northern Affairs Canada – Canada.ca, 2008 (July 2017).According to this argument, the supervising judge was required to take a more expansive view of the Agreement and the evidence thanhe did and that if he had done so, he would have come to a different conclusion. B.

Analysis [52] On this point, I find myself in agreement in principle with the Band. The Lombard documents were offered to show thatCanada had made itself responsible for Indian children, as a point of law and principle derived from the policies that Canada adopted, theIndian Act, RSC 1985, c I-5, and the treaties.

If Indian children were sent off-reserve for education, they were entitled to a safe andsecure environment in which to undertake education that would be protected by the non-delegable fiduciary duty held by Canada. [53] In Fontaine v Canada (Auditor General), 2014 MBCA 93, [2014] 12 WWR 211 [Kelly CA], the Court reviewed the terms ofthe Agreement, holding that the principle of reconciliation that animated the Agreement should be considered in interpreting it: The

Preamble to the Agreement [46] I start my analysis with the

preamble to the Agreement. It commences with an acknowledgement that Canada and certain religiousorganizations operated the residential schools and that certain harms and abuses were committed against the children who attended them(see para. A). It expresses the parties’ desire for a fair, comprehensive and lasting resolution of the legacy of residential schools (seepara. B). Next, it expresses the parties’ desire for the promotion of healing, education, truth and reconciliation, and commemoration (seepara. C). Also of import to this case is para.

G, which provides: [G.] The Parties, subject to the Approval Orders, agree to settle all pending individual actions relating to Indian Residential Schools uponthe terms contained in this Agreement, save and except those actions brought by individuals who opt out of the Class Actions in themanner set out in this Agreement, or who will be deemed to have opted out pursuant to

Article 1008 of The Code of Civil Procedure ofQuebec. [47] The

preamble ends by stating that the Agreement is not to be construed as an admission of liability by any of the defendants (seepara. H). [48] In oral argument, Canada maintained that the supervising judge erred in considering the principles of reconciliation and resolutionin reaching his decision. Specifically, it argued that, while those principles were key in reaching the Agreement and were relevant to theapproval decisions, they have no application in the

interpretation of the provision because it constitutes a complete exit from the[Independent Assessment Process]. I disagree. In my view, the

preamble constitutes part of the Agreement and is relevant to theinterpretation of it. … The Factual Matrix … [72] In this case, the Agreement is the result of months of negotiations by experienced and knowledgeable counsel for all parties. Havingsaid that, in my view, it is different than a typical commercial contract. Although I would not go so far as to find that it is a politicalagreement as was found by Perell J. in Fontaine v. Canada (Attorney General), 2014 ONSC 283, [2014] 2 C.N.L.R. 86, it must beacknowledged that it is something more than the settlement of a tort-based class action.

It is directly aimed at remedying the significantsocial, emotional, and physical injustice created by the defendants that has left a multi-generational legacy of harm. [73] The Agreement came about in response to the thousands of actions and many class actions that had been filed against thedefendants. There is no dispute that these actions would have taken many years to resolve in the civil court process despite an alternativedispute resolution process that had been implemented by Canada.

As was noted in Semple ([2006 MBQB 285] at para. 7): [7] … One case took 16 years to wend its way to trial, appeal and the Supreme Court. The trial lasted 60 days. Another claim by 26plaintiffs lasted six years from start to finish.

The trial was conducted in three segments a total of 108 days. [74] Furthermore, the Agreement was negotiated against the backdrop of evidence that the potential class members were elderly anddying at a rate of approximately 1,000 per year (see Baxter (ON SC), [2006, 83 OR (3d) 481 (Sup Ct J)] at para 46). [75] Having said that, the resolution of outstanding litigation was not the only goal. Other broad goals of the Agreement include theestablishment of the Truth and Reconciliation Commission and funding for healing and commemoration.

In the big picture, theAgreement is a step toward reconciliation. (Emphasis added) [54] I agree with this approach to interpreting the Agreement. Having said that, I cannot say the supervising judge was motivated

by anything but a desire to construe the Agreement consistently with the principles that gave rise to it. The Band has not pointed to anything in the reasons of the supervising judge to support a different conclusion or

interpretation, and, in my opinion, there is nothing to indicate that he made such an error. Simply because the supervising judge did not grant the application under the Agreement does not mean he was not motivated by the principles that gave rise to the Agreement in the first place. [ 55 ] In any event, the real issue before the supervising judge was not primarily the

interpretation of the Agreement, but rather its application to the facts as found by him. In finding the facts, the significant decision he had to make was weighing the sufficiency of the evidence to determine whether the Home fell within the criteria set out in

Article 12. IX. Second Issue: Whether the Supervising Judge Erred by Not Adding the Home to the Agreement? A. Introduction [ 56 ] The supervising judge correctly held the Band bore the onus to demonstrate, on a balance of probabilities, that the Home satisfied both of the criteria imposed by s. 12.01(2) of the Agreement: (

a) first criterion – “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) second criterion – “Canada was jointly or solely responsible for the operation of the residence and care of the children resident there”. B. The First Criterion: Placement by Canada [ 57 ] With respect to the first criterion, the supervising judge wrote the following: [85] What is absent in the record, is any evidence that Canada played an active role in determining which children would reside at [the Home] and which would not. The evidence advanced by [the Band] alleging “subtle” control by Canada over the placement of children at [the Home] is not sufficient to satisfy the first branch of the

Article 12 test. It is not sufficient to suggest that Canada was perceived to have the authority to control placement of children at [the Home], nor is it sufficient to argue that the Chief and Band Council exercised no independent authority in this area. As noted above, the Chief of [the Band] considered himself to be the final authority on placement of students at [the Home], and both Ms. Charles and Canada, in contemporaneous documents, acknowledged that [the Band] performed the primary gatekeeper role . I do not accept the argument that Ms.

Charles acted on Canada’s behalf in her role as education coordinator for [the Band], nor do I accept the argument that the Chief and Band Council acted on Canada’s behalf in placing students at [the Home]. On the balance of the evidence before me, I cannot conclude that Canada participated in the placement of children at [the Home]. [86] [The Band] has not, therefore, satisfied the first criterion for the addition of [the Home] to

Schedule “F”. (Emphasis added) [ 58 ] The Band argues Indian children 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: i.e., at either the Prince Albert Student Residence [6] or the Home. The crux of this argument is that Canada controlled the schooling of every Indian child and, therefore, their placement. [ 59 ] In support of its position in that regard, the Band relied upon ss. 116(1) , 118 and 119(1) of the Indian Act , which were in force during the life of the Home: Attendance 116 (1) subject to

section 117, every Indian child who has attained the age of seven years shall attend school . … School to be attended 118 . Every Indian child who is required to attend school shall attend such school as the Minister may designate , but no child whose parent is a Protestant shall be assigned to a school conducted under Roman Catholic auspices and no child whose parent is a Roman Catholic shall be assigned to a school conducted under Protestant auspices, except by written direction of the parent.

Truant officers 119(1) The Minister may appoint persons, to be called truant officers, to enforce the attendance of Indian children at school, and for that purpose a truant officer has the powers of a peace officer. (Emphasis added) [ 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?

[ 61 ] The supervising judge gave two reasons for finding the children were not so placed in the Home by Canada. The first reason was that Canada did not select the children who would reside at the Home. The second reason was that the Chief of the Band had the final authority with respect to placement and performed the role of the gatekeeper. [ 62 ] The Band asserts it is irrelevant that Canada did not select the actual residents. The fact Canada chose “all” the children who ultimately resided at the Home is the important factor.

For the Band, the evidence is overwhelming that children were “placed in a residence away from the family home by or under the authority of Canada for the purposes of education”. The Band submits the supervising judge ignored the evidence pointing to the involvement of Dale McShane of the Department of Indian Affairs, regarding Canada’s role in the placement of children, and other evidence to similar effect, including the evidence of Ms. Charles. The “fresh evidence” already reviewed is said to be particularly important on this point.

Further, the Band asserts the supervising judge should have concluded, by virtue of s. 3 and ss. 81 to 86 of the Indian Act that only the Minister, and not the Band, could place children for the purposes of education. [ 63 ] In relation to the first criterion, the supervising judge reviewed the affidavit evidence of Ms. Charles, the affidavit and cross- examination of Mr. Wiebe, the affidavit and cross-examination of Mr. Driedger and the affidavit and cross-examination of Mr. Russell.

The judge mentioned several exhibits appended to these affidavits and documents provided by the Government of Canada as a result of undertakings given by Mr. Russell. The affidavit of Ms. Charles, which he reviewed more extensively than the other affidavits, strongly supports in its entirety the position of the Band on both the first and second criterion – but also acknowledges the role of the Band, the parents, and the Home. [ 64 ] The Band hired Ms. Charles in 1972 to assist with education services. In 1973, the Band offered her a position as a “guidance counsellor”.

The training for this position was conducted at the Prince Albert Student Residence under the auspices of the Department of Indian Affairs and Northern Development. From 1975 until 1984, she was the education coordinator for the Band. Her salary was paid by Canada. The fresh evidence confirms this. [ 65 ] For Ms. Charles, she saw no distinction between her work for the Prince Albert Student Residence, which was included as an Indian Residential School in the Agreement, and the Home. In Ms. Charles’s affidavit, she states the following (AB23): 11.

I am cognizant that Prince Albert residential school and Timber Bay institution had the same application form used to decide on the placement of students to residential school. I attach as Exhibit “B” and “C” a copy of an admission form for Timber Bay Children’s Home and Prince Albert residential school respectively. 12. Although these forms are from 1991, they are identical to the forms used by us in the education portfolio. During my tenure from 1972–1984 we were always in communication with both institutions regarding administrative forms as set out above. I did find one letter from Mr.

Ray Sider dated September 20, 1977 which refers to those applications and wherein he requests that I have the Chief sign the forms and also seeking parent’s signatures. I attach as Exhibit “D” a copy of this letter. [ 66 ] As will be noted, Ms. Charles states she found one letter that requests the Chief’s signature. However, other references pointing to the authority of the Chief and Band appear in the evidence. In a letter dated August 12, 1974, from Mr. J.P.

Woods, District Superintendent of Education for the Prince Albert District to the Reverend Bowman, Superintendent of the Home, the following appears: Dear Rev. Bowman Please find enclosed admission forms to your home which the Montreal Lake Band and this Department wishes to use. The purpose of the form is to ensure that parents or guardians of children who are placed in your home obtain approval from the Band Council. This practice of obtaining approval from the Band Council is being followed in student placement in the Prince Albert Indian Student Residence and Boarding Program.

This Department can only accept financial maintenance responsibility in your home for those children for whom Band approval has been obtained. It is expected that this year’s requirement for the services of your home will be much the same as last year. (Emphasis added, AB2514) [ 67 ] On October 27, 1975, the Assistant District Superintendent of Education of Indian and Northern Affairs wrote to Reverend Bowman as follows: Dear Rev. Bowman: Please find enclosed admission forms to your Residence which Indian Bands in this District and this Department wish to use for all students of Treaty Indian status.

The purpose of the form is to ensure that parents or guardians of children who are placed in your home obtain a recommendation from their Band Council prior to their actual placement . This practice of obtaining Band council recommendation is being followed in student placement in the Prince Albert Indian Student Residence and the Boarding Home Program. This Department can only accept financial responsibility for daily maintenance of children in your home, if the following are met: 1. Parents/Guardians must make an application on behalf of each child requesting admission . 2.

Band Council recommendation must be obtained, in writing, prior to admission . 3. The reasons for admission must be clearly stated and acceptable to the Department. For children already in place in your care, the following guidelines will apply:

1. An initial application will be obtained at the Montreal Lake Children’s Home. 2. This application will be returned to the parents and the Band Council for signature and Council recommendation. 3. Final approval will rest with the District Superintendent of Education. We thank you for your co-operation in the past, and for your anticipated cooperation in the future. (Emphasis added, AB2789–AB2790) There is no form attached to this letter in the appeal book, but elsewhere (e.g., AB2281) there is an exemplar of a departmental form signed by someone from the Band and from Canada, with Ms.

Charles as a witness. [ 68 ] Ms. Charles asserted she followed a “protocol” with respect to placing students at the Home, which she said had been developed by the Department of Indian Affairs and Northern Development. According to her, that department directed and controlled policy and protocol throughout her employment with the Band. She attested to the following: 19. During the early years in the education portfolio, as a guidance counselor, I acted like a truant officer, in that children were taken from trapline families and sent to residential school.

As I indicated beforehand, I was often accompanied on those trips by Dale McShane of the Department of Indian Affairs . The only two choices for residential school were Prince Albert and Timber Bay. Whether a student went to Prince Albert or Timber Bay was often determined on space availability. In a typical year, Prince Albert may have space for 50 to 60 and in Timber Bay space for 10 to 12. The students were sent to either school based on this formula. (Emphasis added, AB26) [ 69 ] Yet, as the supervising judge noted, appended to Ms.

Charles’s affidavit is a “Master Education Agreement” entered into by Canada and the Band dated July 8, 1976. This document lists the exclusive and shared responsibilities of the Band and Canada in relation to education and in relation to the selection of students to attend the Prince Albert Student Residence, but it does not mention the Home. In point of fact, there is no agreement covering the Home . [ 70 ] There are, however, other documents in relation to the school at Montreal Lake.

A memorandum of agreement, dated November 5, 1965, between “Her Majesty the Queen in right of Canada, represented herein by the Minister of Citizenship and Immigration” and “The Department of Education of the Province of Saskatchewan”, outlines the “cost of construction of a four classroom school for Indian and non-Indian children at Montreal Lake” (AB2345). The Federal Minister agrees to endeavor “to ensure the regular attendance of the Indian children at the school” and “to maintain a standard of health, cleanliness and clothing among the Indian children” (AB2346).

Nonetheless, the parties expressly agree that this particular agreement does not confer on the Federal Minister “any right of supervision over the curriculum, the administration and teaching personnel, the methods or materials and instruction or management generally of the school” and provides a “right to visit” only (AB2347). [ 71 ] A later agreement recognizes the Montreal Lake Joint School was operated by the Montreal Lake Band on the Montreal Lake reserve.

I note, in particular, a tuition agreement, dated December 22, 1976, between the Montreal Lake Band, Her Majesty the Queen as represented by the Minister of Indian Affairs and Northern Development, and the Northern School Board for the Province of Saskatchewan. Under this agreement, the Northern School Board is obliged to pay the Minister of Indian Affairs and Northern Development the cost of tuition for non-Indian children attending school. It specifies as follows: 7(

a) The Minister in consultation with the Band shall assume jurisdiction over the administration, control and operation of the Montreal Lake School in which Non-Indian children are enrolled under the terms of this agreement, including the supervision of teaching personnel and all matters related to curriculum, methods of instruction and material used for instruction. (

b) Education officials and any other person authorized by the Board and approved by the Band shall have the right to visit the school from time to time. (

c) The Band shall have the right to assume the administration, control and operation in total or any part thereof of the Montreal Lake School upon approval of a [Band Council resolution] submitted seven months prior to the effective date of Band control. (Emphasis added, AB2325) In his decision, the supervising judge also referred to these tuition agreements and noted they “do not, however, relate to the funding or operation” of the Home (at para 73). [ 72 ] Absent from the documentation is any agreement declaring Canada’s assertion of control with respect to the Home itself.

Other documents, some of which form part of the fresh evidence, show the extent to which the congregation leaders believed they were in charge of who resided at the Home. Among the documents received from the Canadian Conference of Brethren in Christ Church archives, there appears a “Report of a Visit to Montreal Lake Children’s Home by Arlene Miller” (AB1251), which is dated September 3, 1982. Ms. Miller recounts a visit to La Ronge and a visit with Ms. Charles. Ms. Miller describes Ms.

Charles’s responsibility as being “to make decisions about which children will be sent” to the Home in her capacity as education coordinator for the Band. It also states that Ms. Charles works very closely with Ray Sider, the administrator of the Home, who is “struggling with making the necessary decisions about which children can come to the home and which cannot”.

The author also observes there are a “substantial number of youngsters” at the Home who were there as a result of decisions made on behalf of “Social Services … to remove children from homes which are considered unsafe” (AB1252). [7] [ 73 ] Other evidence shows the competition for control between the Home and the Band itself. For example, on January 24, 1974, a meeting of concerned Chiefs and government officials took place. Extensive minutes of the meeting were taken. The chair called upon J. Roberts, Administrator of the Prince Albert Student Residence, to report. Mr.

Roberts stated that he took “direction from the Chiefs, not

from [an Indian Affairs branch] or from Regina” (AB2292). In response to a safety concern, Chief Venne stated, “Chiefs have [the] authority to approve Student applications, they should be contacted before a child is allowed to go home” (AB2294). As a further example of the control the Chiefs exert

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