Backgrounder on Indian Residential School Settlement Agreement

The majority of complaints received by the OIC relate to requests for Indian Residential Schools Settlement Agreement (IRSSA) and Independent Assessment Process (IAP) records.

These processes had established rules for the use, disclosure and disposition of documents, including the Order of Justice Perell (ONSC) (August 6, 2014).
Paragraph 1 of the Order provides that:

This Court orders and declares that IAP Documents and IAP personal information are private and confidential and may not be used or disclosed by anyone for any purpose other than resolving IAP claims and paying compensation, for the limited purposes of prosecuting criminal or child protection or lawyer regulation proceedings, or as permitted by this order and any other Orders made by the Supervising Courts in the course of the implementation of the settlement agreement.

Appendix VIII of Schedule D of the Indian Residential School Settlement Agreement, specifies among other things that the following documents will be given to the adjudicator who will assess a claim:

documents confirming the Claimant’s attendance at the school(s);
documents about the person(s) named as abusers, including those persons’ jobs at the residential school, the dates they worked or were there, and any sexual or physical abuse allegations concerning them;
the report about the residential school(s) in question and the background documents; and,
any documents mentioning sexual abuse at the residential school(s) in question.

The scope of this order, as well as the operation of the Access to Information and Privacy Acts, was considered up to the Supreme Court of Canada (SCC) (2017 SCC 47)

The OIC intervened before the SCC, but no mention of the OIC’s position was included in the decision.
The Court explained that the evidence was clear that:
strict confidentiality of the IAP was intended
confidentiality was crucial to the participation of some defendants
promises of absolute confidentiality were necessary to achieve the purpose of the IAP
The Court also mentioned that the application of the Privacy Act to the AIP records clearly runs counter to the principles of confidentiality and voluntariness upon which the IAP was founded.
As explained by the SCC:

“As the supervising judge found, the federal access, privacy, and archiving statutory scheme does not conform to the “high degree of confidentiality that the parties bargained for” [...]. Nor does archival of the IAP Documents in the National Archives, coupled with their potential disclosure, conform to the principle of voluntariness governing the disclosure by survivors of their stories.” [par. 56]

The OIC intervened before the SCC, but no mention of the OIC’s position was included in the decision.
On October 25, 2018, the ONSC clarified that school narratives are not subject to the Order, which means that they are subject to the Act.

Related OIC decisions

In an exemption investigation (3217-00082 related to St. Anne’s Residential School records):

the Commissioner found that the Department of Justice did not establish the existence of common interest privilege and therefore not all of the records met the requirements of section 23 of the Act.
the Commissioner recommended disclosure. The Department of Justice maintained section 23. (See publication 2022 OIC 54)