Lawyer, judge take off the gloves
Residential school cases spark legal brawl
In the immortal words of Jerry and Kramer on the late, great Seinfeld show: “Cat fight!!”
But this scrap is even less likely than the boys’ own dream of two women slapping one another until they end up, well, near-naked.
This is between an Ontario Superior Court judge who is one of two senior judges who supervise and administer the massive Indian Residential Schools Settlement Agreement, the largest class action suit in Canadian history, and the lawyer who is the “Chief Adjudicator” of the independent assessment process, or IAP.
And the chief adjudicator is now, according to Gus Van Harten, an Osgoode Hall law professor with a specialty in administrative law, “engaging in a bare knuckles litigation fight” with the very judges who are his bosses.
“It’s not something you see often in the sleepy world of agencies and tribunals,” a wry Van Harten told the National Post Tuesday.
As of June, the IAP had resolved 37,792 claims of abuse by survivors of Indian residential schools and paid out $3.1 billion, an average payment of $11,435.
The judge is Paul Perell of the Ontario Superior Court. One of the nine judges across the country whose courts approved the residential schools settlement agreement in 2006 and 2007 and who are now in charge of administering the agreement, Perell is also the “Eastern Administrative Judge.”
The chief adjudicator is Saskatoon lawyer Dan Shapiro, who runs the socalled adjudication secretariat, which has a staff of 243 and three offices, in Regina, Gatineau, Que. and Vancouver.
At its heart, about a week ago Perell issued a “direction” to Shapiro, telling him to flat out stop his involvement in four cases, one at the Supreme Court of Canada and three at the British Columbia Court of Appeal, have the registries of those courts remove the documents he has filed, and provide written confirmation that he has done so.
If, by Thursday, Shapiro hasn’t complied, Perell said, his legal fees won’t be paid. Perell ordered Shapiro to appear before him on Sept. 20.
As Van Harten put it, “Justice Perell is ordering him to cease spending money on litigation against his bosses.
“And he’s (Shapiro) not standing down.”
Van Harten added, “From my perspective, it’s pretty remarkable to see such a strong and frustrated response from the courts to an adjudicative tribunal head for having gone on a frolic.”
But instead, Shapiro has filed an application for an urgent stay of Perell’s direction, arguing that he has been denied any opportunity to be heard, that the judge has made “pre-emptive findings” against him, and that he will suffer grave reputational harm.
Shapiro will argue the matter at the Ontario Court of Appeal on Wednesday. Perell will be represented by Brian Gover, counsel for the supervising courts.
Perell believes he has been improperly advancing “partisan positions” at odds with his adjudicator’s role of neutrality — in effect, not acting like the impartial referee he’s supposed to be.
Nonsense, says Shapiro in his factum. He doesn’t have to get the court’s permission “before he takes steps that he thinks are appropriate to ensure the integrity and efficiency of the process,” and besides, though he admits he’s never before brought an appeal from a decision of a supervising court, he has never been criticized for exceeding his standing.
Shapiro is required to report four times a year to the supervising courts, and it’s here that Perell finds Shapiro most wanting.
The judge says his most recent report is “incomplete” and that Shapiro made only selective references to the four cases, not revealing that he has departed from the usual practice “and has taken to challenging decisions of supervising judges — the courts that supervise him, to which he reports and to which he is accountable … he has taken on the role of an advocate.”
Clearly furious, Perell says that in his report, Shapiro “does not refer to his active and partisan involvement in appeals from decisions of supervising judges. While the reasons for this omission may be understandable, the omission is not excusable, and more importantly, the chief adjudicator’s role as an advocate is beyond his proper role, contrary to the scheme (of the residential schools settlement) and contrary to the court orders appointing him chief adjudicator.”
The judge said that, in the Supreme Court of Canada appeal, slated to be heard in early October, “the chief adjudicator portrayed himself as a respondent …” In one of the B.C. Court of Appeal cases, Perell says, Shapiro “is weighing in against” a residential school survivor and claimant.
The residential schools settlement agreement is supposed to have an end date — finality — and Shapiro was criticized earlier this year by the western administrative judge, Brenda Brown of the B.C. Supreme Court, who said he and his staff were using “procedural fairness” as a way of reopening decided claims.
That, she said, “would compromise or defeat” the important goal of the process having a best-before date. The adjudication secretariat, for instance, is a socalled “sunset organization,” established in 2007 and projected to complete its work by 2020.