The federal government is seeking $25,000 in court fees from an Ottawa lawyer representing the survivors of St. Anne’s Indian Residential School – a rare legal move that critics say is meant to strike fear into other lawyers fighting claims.
For years, Fay Brunning has been representing survivors of the notorious Fort Albany, Ont. residential school known for operating a homemade electric chair.
The horrific sexual and physical abuse of Indigenous students at the school has long been the subject of criminal and civil proceedings.
Among the lawsuits, St. Anne’s survivors have been fighting for access to secret documents they argue are relevant to their compensation claims.
But Ontario Superior Court Justice Paul Perell ruled Canada did not need to turn over the materials generated from a 1990s provincial police investigation into the horrors inflicted on Indigenous children at the school.
Ottawa defence lawyer Lawrence Greenspon, who is representing Brunning, said the federal government is now seeking $25,000 from her to cover the legal costs, a move he calls “very rare.”
“This is really a punitive measure that the federal government is trying to take against Fay Brunning personally and the cost should not be awarded against her,” said Greenspon.
Edmund Metatawabin, a St. Anne’s survivor and former Fort Albany chief, calls it a “desperate” attempt by the government to keep the secret documents hidden.
“What is the message to other lawyers who are thinking of working with First Nations?” he said. “Shot across the bow. That’s what we call it.”
The same federal government that promised a “nation-to-nation” relationship with Indigenous peoples is now seeking legal fees from a lawyer representing residential school survivors – a point that’s not lost on Patrick Etherington, another St. Anne’s survivor.
“What did they mean when they spoke about reconciliation?” he said. “What did they mean when they spoke about the truth?”
APTN News reached out to the Department of Justice for a response, but did not hear back.
Court filings state the federal government is seeking costs from Brunning because of “allegations about Canada and its lawyers’ conduct.”
Last January, Perell issued a decision slamming Brunning for her handling of the case, saying she “slandered the court” and acted unprofessionally.
Brunning alleged “the court was biased and was purposely shirking its obligations under the Indian Residential Schools Settlement Agreement,” reads Perell’s ruling.
He said she has a duty to respect the court and her comments could be contemptuous and possibly interfere with the administration of justice.
Brunning is also facing a defamation lawsuit from Wallbridge Wallbridge, an Ontario law firm with offices in Timmins, North Bay, Sudbury, New Liskeard and Ottawa. The Wallbridge firm’s lawyers allege they were defamed by Brunning when she claimed they sat on police files critical to a residential school survivor’s compensation claim.
On Monday, Greenspon filed a motion to the court asking Perell recuse himself from considering the parties’ legal costs.
Greenspon argues Perell might be biased against Brunning.
“The judge just slammed her and did so in a direction, in a decision that was picked up by the media,” he said, adding Perell made “very negative comments about Fay and did so without providing Fay with any opportunity to be heard.”
The federal government’s pursuit against Brunning is the latest chapter in the St. Anne’s saga.
Survivors of the northern Ontario school have been fighting to obtain secret documents generated during 62 lawsuits filed between 2000 and 2003 by 154 Indigenous children over the physical and sexual abuse they suffered.
The appellants argued the materials should have been available to bolster compensation claims under a process set up as part of the settlement of a class action over the Indian residential school system.
While Canada did eventually hand over the criminal-related documents, it argued it had no obligation to disclose transcripts and other civil-litigation materials on the basis the information was subject to confidentiality rules. Both Perell and the Appeal Court agreed.
In various lower court rulings over the past several years, Perell found the Canadian government had not acted in bad faith by failing to meet its obligations to turn over documents related to criminal proceedings that flowed from the St. Anne’s abuse.
“Nor did he make any finding of reprehensible, scandalous or outrageous conduct on the part of Canada,” the Appeal Court noted.
Greenspon said he has yet to hear of a date set for the cost submissions or for his recusal request.
For more on the horrors of the Fort Albany residential school, watch our APTN Investigates story, Reckoning at St. Anne’s.
- With files from The Canadian Press