The Ontario Court of Appeal on Thursday overturned a decision the federal government won last year to prevent the creation of detailed statistical reports that would reveal which residential schools had the highest rates of abuse.
The appeal court found that the lower Ontario court judge did not have enough evidence to determine the proposed reports — known as static reports — would violate the privacy of residential school survivors, according to a written ruling released Thursday.
The ruling ordered the matter be reheard with appropriate evidence before Ontario Superior Court Justice Paul Perell, who initially sided with the federal government in his now-overturned January 2020 decision.
“There was no evidence before the … judge in support of his belief … that ‘it might be possible to deduce confidential personal information from some of the proposed status reports,” the appeal court said in its decision.
“Nor has Canada submitted any concrete privacy or confidentiality concerns about specific identifiable information.”
The appeal court’s ruling gives a temporary, partial win to the National Centre for Truth and Reconciliation (NCTR), which challenged the January 2020 decision.
“We are pleased that this vital part of the history of residential schools will be preserved,” said a statement from the centre.
“This is a victory on behalf of survivors and their families affected by the residential school system and legacy.”
The proposed static reports would provide breakdowns of residential school compensation claim statistics, including how many and what types of claims each residential school was linked to and broad profiles of survivors who filed claims, along with other categories, according to court records.
Crown-Indigenous Relations Minister Carolyn Bennett’s department said in an emailed statement that it “wishes to ensure the privacy” promised to survivors throughout the compensation process.
“Canada is analyzing the decision to determine appropriate next steps,” said the statement.
The federal government was the only party that fought the creation of the detailed reports for transfer to the NCTR, which was created as a residential school archive and repository for testimony gathered by the Truth and Reconciliation Commission.
Database contains nearly 2 decades of records
The Indian Residential Schools Adjudication Secretariat, which administered the residential school compensation process, proposed creating the static reports from its database.
The database contains nearly two decades of records from every compensation claim filed since 2007 under the Indian Residential School Settlement Agreement’s independent assessment process (IAP), as well as under its precursor, the alternative dispute resolution process, which began in 2003.
The secretariat argued that the reports would help historians understand the scale and scope of abuse at residential schools, according to affidavits from secretariat officials filed in court.
The secretariat was not a party to the appeal.
Justice Canada, under the direction of Bennett’s department, argued the reports would violate the privacy of residential school claimants, which is protected by a 2017 Supreme Court ruling that forbade the archiving of individual claim information held by the secretariat.
Compensation claim information will be destroyed in 2027 unless a claimant indicates they would like their files retained.
Perell said in his January 2020 decision that the information would do nothing to help Canadians understand the history of residential schools or help advance reconciliation.
“And just as the history of the Holocaust will not be different for not knowing which was worse, Auschwitz or Treblinka, I do not see how truth and reconciliation will be advanced by reports identifying which school was the worst of the worst,” the judge said in his decision.
Secretariat no longer exists
The Ontario Court of Appeal, in overturning that decision, ordered the production of the static reports and that they be placed under seal before Perell so he could make a determination based on real evidence.
The appeal court ruling also ordered a stop to any destruction of data in the secretariat’s database known by its acronym SADRE — single access to dispute resolution enterprise.
It remains unclear how the appeal court’s order can be implemented.
The secretariat ended its operations on Wednesday. No one remains to comment on the matter.
Only the federal government and the secretariat had access to the database.
The appeal court ruling said the parties could return to the court if the secretariat couldn’t produce the reports.
The appeal court also dismissed a challenge from the NCTR to another section of Perell’s January 2020 ruling blocking the transfer of separate records to the archive.
The NCTR was seeking records of complaints against the IAP process, personnel records of IAP adjudicators and other files related to the compensation process.
The federal government, which retains the files, opposed the transfer arguing it owned the records.