The B.C. Court of Appeal dismissed an appeal by four Aboriginal persons who wanted to advance claims for abuse and injuries suffered by them while attending Indian residential schools. They had missed the deadline for applying under the Independent Assessment Process (IAP) established by the Indian Residential Schools Settlement Agreement. The Court of Appeal affirmed a lower court decision that there was no jurisdiction to extend the application deadline.

The Settlement Agreement contained two individual compensation components: the IAP and the Common Experience Payment (CEP). The application deadline for the IAP was 19 September 2012. The Settlement Agreement allowed the Court to extend deadlines for the CEP, but IAP claims were “forever extinguished” if the application was not made before the deadline. Chief Justice Bauman held that this distinction was fatal to the appellants’ position. He expressed sympathy for the position of the appellants but concluded that allowing the appeal would create a situation of “hard cases … introduce bad law”. The Settlement Agreement brought an end to massive litigation. The respondents sought the certainty of a bright-line deadline for IAP claims. Granting an extension to the four appellants in this case would open the door to many more claims. Chief Justice Bauman commented:

One must appreciate the holistic nature of the settlement agreement, and the give and take evidenced in it, before ignoring the clear terms of the document and sacrificing the certainty won by the respondents by acceding to this Request for Direction. That would take from the respondents a concession they won for a price in the agreement; it could also potentially compromise the equities struck between the parties in the overall negotiation process that led to and, forms the basis of, the IRSSA.

The appeal was therefore dismissed.


Scott Kerwin


Aboriginal Law