Canada v Alexis

The Alberta Court of Appeal released a decision on April 14, 2015 in Canada (Attorney General) v. Alexis, dismissing an appeal from an order rejecting applications to add two schools to the list of eligible institutions in the Indian Residential Schools Settlement Agreement (IRSSA).


Several applicants sought directions from the court to have the Drumheller Vocational School and Grouard Vocational School added to the IRSSA, which would result in benefits under the agreement being available to former students of these two institutions. Canada had refused to add the schools and an application was brought before a chambers judge of the Alberta Court of Queen’s Bench to determine whether the schools met the criterion of Article 12.01(2)(b) of the IRSSA, which required Canada to be either jointly or solely responsible for the operation of the residence and care of the children resident at these institutions for them to be covered by the agreement.

Decision of the chambers judge

The chambers judge set out the history of the two institutions in her decision and concluded that Canada was not jointly or solely responsible for either the operation of the residences at Drumheller and Grouard or for the care of the children resident at these schools.

At Grouard, an agreement between Canada and the local school authorities foreclosed the possibility of Canada influencing staffing, curriculum, instruction or management at the school. Based on the documentary evidence before her, the chambers judge also found that Canada had no role in the administration of the school or its residences, and the school division managed admissions. Canada did fund capital and operating costs and also provided an allowance for the clothing and other incidentals of Indian students, which were relevant factors. Likewise, Canada had a right to be heard on issues relating to school and residence administration. However, the chambers judge found that the school division was not obliged to obey the federal government and the criterion of Article 12.01(2)(b) was nonetheless not satisfied.

The chambers judge reached similar conclusions with respect to Drumheller, which was patterned on Grouard in order to provide a similar program in the southern part of the province. With respect to both schools, the chambers judge held that Canada’s involvement was peripheral and best characterized as a funding source related to the number of “Indian” students attending each school. While Canada may have been responsible for the presence of the Indian children at these schools, it was not in any way responsible for the operation of the schools.

The appellant argued that the chambers judge had erred by: (a) concluding that Article 12.01(2)(b) requires Canada to have some authority rather than “responsibility” over the schools; and (b) drawing incorrect inferences from certain documentary evidence.

Court of Appeal’s decision

The Court found that the appropriate standard of review in this case was reasonableness and cited an Ontario case in which it was held that the question of whether a particular institution should be added to the IRSSA “turns on the facts of the specific situation under consideration”.

With respect to Grouard, the Court noted the chamber judge’s findings that Canada contributed to the construction costs for the school, was required to pay tuition fees for the Indian students in attendance and paid the school’s operating costs proportionate to the number of Indian students attending there. However, it also noted that when the school division purchased a residential facility and Indian students began to reside there, this was done without consulting Canada. Likewise, the ownership and expansion of this residence was always vested in the school division—a provincial entity.

The Court also noted that the chambers judge found no evidence that Canada had ever stood as a parent (in loco parentis) to the children resident there nor had it ever declared the school to be an Indian Residential School. Furthermore, it had been found that the various agreements between Canada and local school authorities foreclosed Canada from having authority to influence staffing, curriculum or management of the schools.

The Court did acknowledge that Canada, through its employees, participated in the preparation and administration of school budgets, educational systems, leadership courses, curriculum, dormitory enrolment guidance and counselling, and was required to ensure the regular attendance and standard of health and cleanliness of Indian students. However, this was insufficient to establish that Canada was jointly or solely responsible for the operation of the residence and care of the children there.

In the case of Drumheller, the Court noted similar findings with regards to Canada’s involvement in the school in terms of funding the cost of the school’s construction, paying tuition for Indian children, and contributing to the capital costs and operating costs for the school and its residence. Canada was also obliged under an agreement to pay for a counselor’s salary and there was the possibility of the implementation of further special programs for Indian students. However, just as with Grouard, Canada was found not to own either the school or the residence and there was again no evidence that Canada ever stood as a parent to the Indian children attending Drumheller.

The Court rejected the appellant’s contention that the chambers judge had erred by focusing on Canada’s authority as opposed to “responsibility”, finding that she had reasonably concluded that the applicant failed to meet its onus to demonstrate Canada was jointly or solely responsible for the operation of either school. The Court found no palpable or overriding errors had been made out with respect to the lower court’s decision.

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