St. Anne’s survivor lawyer to appeal $25,000 court bill

By Catherine Murton Stoehr

TORONTO— In Toronto this week, Fay Brunning, legal council to St. Anne’s Survivor and Up Ghost River author Edmund Metatawabin, will appeal a punitive ruling by Ontario Superior Court Justice Paul Perell ordering her to pay $25,000 for the cost of a hearing related to residential school survivor claims.

Ordering a lawyer to pay the costs for a hearing is an extraordinary measure usually deployed to sanction rogue behaviour, such as ignoring client’s wishes, or advising them to take an unwise course of action.  In this case, it appears that the cause for the costs decision was that Brunning said or wrote something that Justice Perell assessed to be so inappropriate as to necessitate what amounts to a game misconduct.

According to Margaret Waddell, who will be representing Brunning in Toronto this week, in all that she did, Brunning was “acting on instruction from her client.”  This assessment is borne out by the fact that her client, Edmund Metatawabin himself, put out a plea for First Nations and Canadians to rally around Brunning in Toronto this week.

“Fay is in trouble,” he said.

Speaking on behalf of Peetabeck Kekeway Keykaywin (St. Anne’s’ Residential school survivors) Association, Metatawabin explained that even the perception that their lawyer is being targeted could discourage other lawyers from representing residential school survivors.

“We have other lawyers stepping away now since they started to find out.”

This is of concern to a community whose ability to access justice through Canadian courts is already severely limited by geography and culture.

“We’ve never been able to succeed in court because it’s not really our system, we are strangers; we look different and talk different and behave different in court,” noted Metatawabin.

Timmins—James Bay Member of Parliament Charlie Angus has organized a rally and press conference at the courthouse this Tuesday (February 11) at 9:00 am. He put the call out on Facebook:

“If you are in the Toronto area please come out to support the St. Anne’s survivors at Ontario Superior Court. They suffered horrific abuse as children. The government suppressed evidence and threw their cases out. Carolyn Bennett has targeted their ability to have their cases heard. This is not just.”

Since 2005, more than 60 survivors of the St. Anne’s institution, a so-called “school” that functioned as a prison for Mushekegowuk Cree children as young as 3 years old, have gone through an “individual assessment process” to determine compensation owed them for abuse and torture they experienced at St. Anne’s.

Critical to the Individual Assessment Process (AIP) were information packages, or “narratives” designed to assist the court by providing a description of known abuses and abusers at each institution. Front end loading the court with this information was a measure intended to reduce testimony related trauma for survivors.  Canada, who is the accused party in these cases, agreed to provide the courts with documents pertaining to those known abuses and to provide the accompanying “narratives” that summarized them.

However, many St. Anne’s survivors’ claims were denied, and they began to suspect something was wrong.

“We were talking so much and being persistent,” said Metatawabin.

They discovered that the courts did not have access to information that was well known even by the public. Canada had not supplied the courts with tens of thousands of crucial documents including records from 1990 Ontario Provincial Police investigation into St. Anne’s, and records of testimony from survivors (the “Cochrane transcripts”) from 62 civil cases filed by 154 survivors that had preceded the specialized Individual Assessment Process.

Canada acknowledged that they had not provided the documents but argued that they didn’t have to.  In the end, only a direct order from the court produced documents. Even then, they arrived heavily redacted and the accompanying narratives were not substantially altered to reflect the new information.  Without accurate narratives, the pertinent information in the tens of thousands of pages in the documents was difficult to locate.

So, the question arose – was the court properly informed to adjudicate all the cases that it had heard?  Might some of the rejected claims have succeeded if the court knew then what they know now? Some survivors took the position that with proper narratives and documents the court may have come to different conclusions on earlier claims. They brought those concerns before Justice Perell, hoping to have those claims re-tried. Justice Perell decided against new trials. He also indicated that further requests on the issue could result in the claimants having to pay for court costs.

At this point, Metatawabin doubled down submitting a “Request for Direction” on the issue.

Justice Perell refused their request. Further, he found that Brunning herself had slandered the court by suggesting it was biased on behalf of Canada. In a strongly worded statement, he took the extraordinary step of ordering Brunning to pay the $25, 000 court costs of the request for direction.

On Wednesday this week, Brunning will ask a Toronto judge to overturn Justice Perell’s order.

The survivors of St. Anne’s are asking the Ontario media to cover the trial, for other First Nations to express support, for Canadians in the Toronto area to attend the trial, and for Ontarians and Canadians across the country to bear witness to the outcome and monitor its effects on residential school survivors’ access to legal representation in Canadian courts.