Appeal filed over records itemizing abuse from Indian residential school notorious for electric chair use

Survivors from an Indian residential school notorious for its use of a home-made electric chair have launched an appeal of a court ruling that prevented the release of legal records itemizing abuse at the institution.

Lawyers representing the survivors from St. Anne’s Indian Residential School filed a notice of appeal last Wednesday seeking to overturn a ruling issued in late April by Ontario Superior Court Justice Paul Perell.

Perell ruled the government of Canada did not have to release certain discovery transcripts and records from a 2003 civil case launched by survivors of St. Anne’s before the multi-billion dollar, cross-country Indian residential school settlement agreement was finalized.

Perell also ruled the court would not be investigating allegations of conflict of interest against two law firms—Nelligan O’Brien Payne and Wallbridge, Wallbridge—which handled residential school survivor cases.

“We can’t alter the settlement agreement, that is straight forward, but what we can do is bring an interpretation that is favourable to survivors and…not favourable to the government and not favourable to the perpetrators ” said lawyer Michael Swinwood, one of two lawyers leading the appeal.

Interview with St. Anne’s Indian Residential School Claimant K-10106: Betrayal, again

Photo from St. Anne's Indian residential school. Undated. Courtesy of the National Centre for Truth and Reconciliation.
Photo from St. Anne’s Indian residential school. Undated. Courtesy of the National Centre for Truth and Reconciliation.

Many students who attended the Catholic Church-run St. Anne’s Indian residential school, which sat in Fort Albany along Ontario’s James Bay coast, suffered extreme abuse at the institution which ranged from whippings with beaver-snare wire to rape. The school, for a time, also used a home-made electric chair as punishment for students and entertainment for staff.

The impact of the school is still felt in the communities whose children fed the institution. Children from Attawapiskat, a community north of Fort Albany that was gripped in a suicide crisis last year, attended the school.

The Ontario Provincial Police launched an investigation into the historical abuse at the school during the 1990s which resulted in a handful of convictions.

However, the federal government did not initially disclose the OPP investigation records held in its possession when it prepared school information files—known as school narratives—ahead of compensation hearings created under the multi-billion dollar Indian residential school settlement agreement known as the Independent Assessment Process (IAP).

St. Anne’s survivors faced hearings where federal government lawyers denied the existence of documented evidence of abuse at the school until Ottawa was finally forced to release the police files following a 2014 ruling by Perell.

Canada vs. St. Anne’s Indian residential school survivor H-15019

Federal lawyers obtained the OPP records in 2003 during a civil case involving St. Anne’s survivors in Cochrane, Ont.

Law firms Nelligan O’Brien Payne—which acted for the Catholic entities that operated the school—and Wallbridge, Wallbridge—which represented St. Anne’s survivors—also gained access to the same records. Both those firms represented students in IAP hearings but neither challenged the suppression of the OPP records by federal lawyers or disclosed their previous involvement during the Cochrane case, according to previously filed affidavits by survivors.

The current case is a continuation of this protracted legal fight.

Perell issued a ruling in late April dismissing two cases filed by St. Anne’s survivors-one by Edmund Metatawabin and a survivor who can only be identified as K-10106; another filed by a survivor who can only be identified as H-15019.

Both cases were officially described as requests for directions which essentially petitioned the court to intervene in the IAP.

Perell dismissed Metatawabin and K-10106’s request for directions on grounds they did not have standing because they were not directly linked to the residential school settlement agreement.

Metatawabin and K-10106 asked the court to extend the IAP filling deadline—which already passed—so remaining St. Anne’s Indian residential school students could apply for compensation. They also requested the court reopen already settled St. Anne’s cases and investigate why Canada sat on over 12,000 OPP documents that substantiated abuse at the school.

In addition, Metatawabin and K-10106 requested court investigate the behavior of Nelligan O’Brien Payne and Wallbridge, Wallbridge.

Perell also dismissed a request for direction filed by a survivor identified in court documents as H-15019 who alleged Canada breached the settlement agreement by not disclosing all documents that surfaced during the St. Anne’s Cochrane civil case which was settled in 2003.

H-15019 requested Ottawa turn over all transcripts from the case, including survivor testimony given during the examination for discovery process.

Perell ruled Canada did not have to turn over these transcripts because they were of a privileged and confidential nature related to an out-of-court settlement.

Swinwood said the interests of survivors trump settlement privilege.

“There is a higher point of justice that would trump or supersede settlement privilege,” said Swinwood. “It is information that could be helpful to survivors.”

Swinwood said the documents carry great historical significant about what went on in one of Canada’s harshest residential schools.

“We contest the idea that the documents have attached to them some kind of privilege that keeps them out of the domain or purview of the public…and survivors,” he said.

Perell ruled in 2014 that Canada breached the settlement agreement by not previously disclosing thousands of pages of OPP investigation documents from the 1990 probe into abuse allegations against former St. Anne’s employees and priests.

The 2014 ruling excluded privileged documents, said Perell, in his April decision.

Perell’s ruling stated that, “if true,” the allegation against Nelligan O’Brien Payne would constitute an “egregious breach of fiduciary duty.” Perell stated Wallbridge’s alleged actions may be more a matter of professional negligence instead of a breach of fiduciary duty.

Perell did not rule on the merits of the allegations against the two law firms.

Wallbridge, Wallbridge and Nelligan O’Brien Payne vigorously deny all allegations.

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2 thoughts on “Appeal filed over records itemizing abuse from Indian residential school notorious for electric chair use

  1. Appreciating the persistence you put into your website and detailed information you offer. It’s great to come across a blog every once in a while that isn’t the same outdated rehashed material. Fantastic read! I’ve saved your site and I’m including your RSS feeds to my Google account.

  2. Perell ruled the government of Canada did not have to release certain discovery transcripts, nor was the court required to investigate allegations of conflict of interest. Why not? Where is the truth to be found? Where is the transparency? Seems as though there was a pre-emptive cap placed on the truth called ‘confidentiality’ – proven in court but suppressed thereafter. Clever, but shameful.
    Can’t Canada just come clean? Future generations will study this process and understand that Canada and the courts did not do ‘right’ for Indigenous people who, for generations, have struggled against all odds. Actually, it wasn’t long ago that Indigenous people were not allowed to hire legal counsel. Imagine that.
    Thank-you to the Michael Swinwoods and the Fay Brunnings. You align your profession with nobel intent and the pursuit of justice.
    Federal government lawyers denying the existence of documented evidence of abuse is inexcusable. That will be noted in future studies of the IAP. Quite a legacy. Something to be considered before it’s too late.

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