Judge says lawyer 'slandered court' for suggesting it favoured Canada on St. Anne's case

An Ontario judge responsible for supervising the Indian Residential School Settlement Agreement says a lawyer representing survivors from St. Anne's residential school "slandered the court" by suggesting it was biased in favour of the federal government.

St. Anne's residential school survivor says judge's words could chill other claimants seeking court remedies

Ottawa-based lawyer Fay Brunning had her knuckles rapped by an Ontario judge after suggesting in court filings and in an email that the court was biased in Canada's favour on St. Anne's cases. (Colin Perkel/Canadian Press)

An Ontario judge responsible for supervising the Indian Residential School Settlement Agreement says a lawyer representing survivors from St. Anne's residential school "slandered the court" by suggesting it was biased in favour of the federal government.

Ontario Superior Court Justice Paul Perell released a scathing order on Monday aimed at Fay Brunning, an Ottawa-based lawyer who has represented survivors from St. Anne's for several years, scoring major victories along the way.

Cases from the Fort Albany, Ont., school, where a homemade electric chair used for punishment and sport, have been marred by Ottawa's decision to initially sit on thousands of documents from an Ontario Provincial Police investigation launched in the 1990s that led to charges and convictions of former school staff.

Perell took exception to recent court filings by Brunning alleging the court gave "preferential treatment" to Canada. Perell also expressed discomfort with an email Brunning sent on Jan. 12 to the court counsel where she stated the court had "neglected to enforce its own orders against Canada" in cases involving St. Anne's survivors and that it always "presumes Canada to be truthful."

Perell wrote he was concerned Brunning's "allegations diminish public confidence in the court's supervision" of the residential schools settlement agreement which created a process for setting compensation for abuse suffered at the institutions.

"Her statements may possibly be contemptuous," wrote Perell, one of nine judges supervising the implementation of the settlement agreement.

"She has called into question the court's impartiality and its integrity."

'Advocates have a duty ... to the administration of justice'

In the same email, Brunning said her client, Stella Chapman, also known as St. Anne's claimant C-14114 in court records, would not be participating in a re-hearing of her student-on-student abuse compensation claim set for Friday as a result of the court's and Canada's actions. Perell's order directed Brunning to appear with her client for the scheduled hearing.

"I believe that Ms. Brunning is a zealous and loyal advocate on C-14114's behalf, but advocates have a duty not only to their clients, but they have a duty to the administration of justice and the rule of law," wrote Perell.

"If C-14114 gave Ms. Brunning instructions to proceed as she has, which I rather doubt, Ms. Brunning should not have accepted those instructions and it was unprofessional for her to do so."

Brunning said in an emailed statement to CBC News that she would be consulting with her own lawyer and with Chapman about her "legal rights." 

Students from St. Anne's Indian Residential School in an undated photo. (National Centre for Truth and Reconciliation)

Brunning questioned the court's impartiality following a ruling Perell issued on Jan. 4 which dismissed an attempt by Chapman to have the courts force federal lawyers to accept as evidence transcripts from a 1990s Ontario Provincial Police investigation into abuse at St. Anne's and from a 2003 civil court case in Cochrane, Ont.

Perell ruled the federal government had a right under the settlement agreement to challenge residential school compensation claims and reject certain evidence.

Chapman wanted the transcripts used in her Friday hearing under the Independent Assessment Process (IAP), which was created by the settlement agreement to award compensation.

Crown-Indigenous Relations Minister Carolyn Bennett's office has said the government is no longer challenging the re-hearing of Chapman's IAP claim.

Judge's words may send chill 

Chapman initially lost her IAP claim in 2013 during a time when the federal government was keeping thousands of OPP files itemizing widespread abuse — including the use of a homemade electric chair, sexual assaults and beaver snare wire beatings — under wraps.

Perell ordered the release of the OPP files in 2014 in a case where Brunning represented 60 St. Anne's survivors.

Edmund Metatawabin, a survivor of St. Anne's residential school in Fort Albany, Ont., worries the judge's words against lawyer Fay Brunning could chill other lawyers and residential school claimants. (Sean Kilpatrick/Canadian Press)

St. Anne's survivor Edmund Metatawabin, who has been represented by Brunning, said Perell's order likely sent a chill to other survivors and lawyers still fighting claims.

"Now we don't know what to expect from the court. What is the warning to other legal people, other lawyers when they opt to speak for First Nations people, that there is danger ahead?" said Metatawabin, in a telephone interview Tuesday.

"It is very strange. A judge is made of stronger stuff; he should be able to hear everything and try his best to come up with a ruling without attacking either side."

Perell's order also revealed that Brunning, on behalf of Chapman, gave notice in a separate email on Jan. 11 that she was planning to file a contempt of court motion against Bennett and Justice Minister Jody Wilson-Raybould, arguing they were failing to meet the 2014 disclosure order and requirements under the settlement agreement. Brunning dropped the move over the tight timeline suggested by the court and the federal government.

The federal government has asked the court to order Brunning to pay its legal bills in a move Perell said was a "settling of scores," according to his Jan. 4 ruling.

About the Author

Jorge Barrera is a Caracas-born, award-winning journalist who has worked across the country and internationally. He works for CBC's Indigenous unit based out of Ottawa. Follow him on Twitter @JorgeBarrera or email him