Indian residential school hearing resuming with fight over costs immunity

Two survivors of a notorious Indian residential school want the courts to ensure they aren't forced to foot the government's legal bills if they lose a complex case involving hidden police documents and a dispute over compensation for the abuse they say they suffered.

The government, however, was set to argue at a hearing on Wednesday that the request for a no-costs guarantee should be rejected out of hand.

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The claimants in the case, Edmund Metatawabin and a woman known as K-10106, attended the church-run St. Anne's residential school in Fort Albany, Ont., which was equipped with an electric chair used to shock students.

Metatawabin, who also speaks for the Peetabeck Keyway Keykaywin Association or PKKA a group of St. Anne's survivors and the woman both say they were victims of horrific abuse that included being forced to eat vomit.

Case not in the public interest?

Among other things, they want Superior Court to order a full-scale inquiry into why records of a criminal investigation and prosecutions arising out of abuse at the school were only disclosed under court orders in 2014. As a result of the non-disclosure, they say, some former students were unfairly denied compensation under settlement of a class action related to the Indian residential school system.

By way of "preliminary relief," they want assurances they won't have to pay a potentially massive legal bill if their quest fails. Nothing doing, says the government.

"Costs immunity is an exceptional remedy to be reserved for the rarest of cases," the government argues in its factum. "The present circumstances do not qualify."

The government maintains Metatawabin and K-10106 have not shown financial need, their case is not in the public interest, and, in any event, they have yet to show their right to involve the courts in their dispute. The well worn loser-pay approach to civil litigation, the government says, helps keep parties to a dispute accountable.

Metatawabin and K-10106 also want the courts to give St. Anne's survivors more time to seek compensation for their abuse through the independent assessment process set up as part of the residential schools class-action settlement. The deadline for claims passed in 2012.

Re-victimized

K-10106 initially had her compensation claim rejected. She says she didn't know her lawyer had previously acted for the Roman Catholic operators of St. Anne's, or that the lawyer had, or was aware of, the documentation of sexual and physical abuse that might have bolstered her case but never told the claim adjudicator about their existence.

"Claimant K-10106 was re-victimized in the IAP (independent assessment process) hearing, and her claim was denied as not credible," her court filing says.

Other survivors argue they were similarly victimized by the claims process.

Metatawabin and his association say they don't have the means to find all St. Anne's victims who may have run into claims roadblocks unfairly and alert them to the document non-disclosure.

"The evidence of 1,000 former St. Anne's students should have been produced by Canada...and used by adjudicators to corroborate IAP claims for abuse at St. Anne's," they say.