ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ

Nunavunmi Apiqhuidjutainut Uuktuffaarutit

Nunavut Court of Appeal
Cour d'appel du Nunavut

Citation: Fontaine v Canada (Attorney General), 2018 NUCA 4

Date: 20180720
Docket: 08-17-006-CAC
Registry: Iqaluit

Between:

Larry Philip Fontaine

Respondent
(Plaintiff)

- and -

The Attorney General of Canada

Appellant
(Respondent)

_______________________________________________________

The Court:
The Honourable Madam Justice Patricia Rowbotham
The Honourable Madam Justice Sheila Greckol
The Honourable Madam Justice Jo'Anne Strekaf
_______________________________________________________

Memorandum of Judgment

Appeal from the Order by

The Honourable Madam Justice B. Tulloch
Dated the 22nd day of February, 2017
Filed the 5th day of March, 2017
(Docket: 08-05-401-CVC; 2016 NUCJ 31)
 _______________________________________________________

Memorandum of Judgment
_______________________________________________________

The Court:

I. INTRODUCTION

[1] The Attorney General of Canada appeals from a decision granting an

application to have Kivalliq Hall, a high school student residence in Rankin
Inlet (then in the Northwest Territories, now Nunavut), added as an institution
pursuant to Article 12 of the Indian Residential School Settlement Agreement:
Fontaine v Canada (Attorney General), 2016 NUCJ 31 [Reasons]. The
application was brought by Nunavut Tunngavik Inc and a former student on
behalf of all former students.

[2] We are not persuaded that the application judge’s approach to assessing
Article 12 or her inferences of fact warrant our intervention, and we dismiss
the appeal.

II. BACKGROUND

[3] The removal of First Nations, Inuit and Métis children from their families from
the 1860s to the 1990s to attend Indian Residential Schools, where there was
physical, emotional and sexual abuse, is a dark chapter in Canadian history.
Survivors of residential schools brought individual and class actions and in
2006, class actions in nine provinces and the territories were consolidated.
They were resolved through a comprehensive settlement process that
resulted in the Indian Residential School Settlement Agreement (Settlement
Agreement).

[4] The Settlement Agreement provides a mechanism for students to apply for
compensation if they attended an Indian Residential School listed in
Schedule E or F of the Settlement Agreement or if the institution “is
determined to meet the criteria set out in Section 12.01(2) and (3) of this
Agreement”: Settlement Agreement, s 1.01.
 2

[5] Article 12 outlines the criteria for adding an institution to Schedule F. Section
12.01(2) sets out the criteria as:

a) The child was placed in a residence away from the family

home by or under the authority of Canada for the purposes of
education; and,

b) Canada was jointly or solely responsible for the operation

of the residence and care of the children resident there.

[6] Subsection (b)—operation and care—is informed by section 12.02(3), which

states (with emphasis added):

(3) Indicators that Canada was jointly or solely responsible for

the operation of the residence and care of children there
include, but are not limited to, whether:

a) The institution was federally owned;

b) Canada stood as the parent to the child;

c) Canada was at least partially responsible for the

administration of the institution;

d) Canada inspected or had a right to inspect the

institution; or,

e) Canada did or did not stipulate the institution as an

IRS.

[7] For convenience we will refer to this enumerated list as the “Indicators”.

[8] In short, an applicant asking to have an institution added as an Indian

Residential School must establish that Canada had a role in the child’s
placement and care, and in the institution’s operation: Assembly of Manitoba
Chiefs v Canada (Attorney General), 2017 MBCA 2 at para 30, [2017] MJ No
2 (QL) [Teulon Residences CA].
 3

[9] Kivalliq Hall was a 40-bed residence that operated from 1985 until 1995. It
was 278 kilometres from Baker Lake where the applicant, Simeon
Mikkungwak, lived. Because no high school curriculum was offered in Baker
Lake, Mr Mikkungwak was told to live at Kivalliq Hall while attending the
Keewatin Region Education Centre from 1985 until 1989, when he obtained
his high school diploma.

[10] Mr Mikkungwak requested that Canada designate Kivalliq Hall as an Indian

Residential School but was refused because Canada took the position that
the requirements of Article 12 were not satisfied. Once Canada refuses to add
a proposed institution, an application to the court may be made: s 12.01(5).

[11] Mr Mikkungwak and Nunavut Tunnagavik Inc (NTI) applied to the Nunavut
Court of Justice for a declaration that Kivalliq Hall be added as an institution
listed in the Settlement Agreement. NTI is an organization that represented
former Inuit residential school students in the class action leading to the
ratification of the Settlement Agreement and now represents them with
respect to its implementation.

III. DECISION UNDER APPEAL

[12] The application judge concluded that Kivalliq Hall should be added as an
institution to Schedule F because the applicants had demonstrated that
Kivalliq Hall met the test set out in Article 12. She found that “Mr Mikkungwak
was placed in a residence away from his family by or under the authority of
Canada for the purpose of education; and Canada was jointly responsible for
the operation of Kivalliq Hall and the care of the children”: para 137 (emphasis
in original).

[13] She referred to other court decisions considering similar applications and
noted that whether an institution should be added “turns on the facts of the
specific situation under consideration”: para 63, citing Canada (Attorney
General) v Alexis, 2015 ABCA 132 at para 24 [Moosehorn Lodge CA]. She
had regard to the preamble to the Settlement Agreement which states that all
parties desire “a fair, comprehensive and lasting resolution of the legacy of
Indian Residential Schools” and “the promotion of healing, education, truth
and reconciliation and commemoration”. The Settlement Agreement was
 4

“intended to offer a measure of closure for former residents of IRS’s and their
families”: para 64, citing Fontaine v Canada (Attorney General), 2011 ONSC
4938 at para 68, [2011] OJ No 3756 (QL) [Stirland Lake]. She acknowledged
that, while each case turns on its own facts, consistency among the decided
cases is important: para 65.

[14] The application judge generally preferred the evidence of Mr Mikkungwak

and Sandra Omik (NTI’s affiant) over that of Canada’s Director of Settlement
Agreement Operations West (Director), as his “knowledge of the historical
relationship between Canada and the NWT is not deep, particularly with
respect to the role of the Commissioner or the Executive Council at or around
the time that Kivalliq Hall was established”: para 69. Further, the Director’s
“lack of expertise … is compounded by the paucity of evidence concerning
the NWT generally and Kivalliq Hall specifically, that Canada through its sole
affiant, [the Director], has placed before this court”: para 69.

1. Student Placement at Kivalliq Hall

[15] With respect to section 12.01(2)(a), it was agreed that Mr Mikkungwak

resided at Kivalliq Hall from 1985 to 1989 for the purpose of education, but the
parties disagreed about whether he was placed there “by or under the
authority of Canada”. Mr Mikkungwak’s evidence was that he had expected to
live at what later was classified as an Indian Residential School because that
was the standard practice for Baker Lake students. However, “immediately
before I departed, I was told that I … would live at Kivalliq Hall … [and]
informed that the reasons for the change was that student enrollment at
[Keewatin Region Education Centre] was low” Affidavit at para 2.

[16] The application judge concluded that section 12.01(2)(a) had been satisfied
as “it is clear that had Mr. Mikkungwak not been redirected to Kivalliq Hall, he
would have resided at … a recognized Indian Residential School. In my view,
diverting students from a recognized [Indian Residential School] to Kivalliq
Hall … invites the inference that this placement was by or under the authority
of Canada for the purposes of education”: para 77.
 5

2. Care and Operation

[17] The application judge noted that section 12.01(3) set out a list of indicators to
consider in determining whether Canada was jointly or solely responsible for
the operation of Kivalliq Hall and care of the children resident there, but that
the considerations were not limited to those indicators: para 78. While it was
not disputed that Canada had historically exercised much greater control and
influence over the governance of the territories than over the provinces, a
central dispute concerned the extent to which Canada exercised control or
influence over education in the Northwest Territories during the period when
Kivalliq Hall was approved and funded, and later operating. She held:

[80] … two significant and interrelated indicators not enumerated in

Section 12.01(3), but arising from the relationship between the NWT
and Canada, that support the conclusion that Canada was jointly
responsible for the operation of Kivalliq Hall and for the care of the
children resident there. The first is the general extent to which
Canada remained involved in the education-related affairs of the
Northwest Territories at the time Kivalliq Hall operated. This
consideration is unique among Article 12 applications, given the
relationship between the territory and the federal government. The
second indicator is the extent of the federal government’s
involvement in approving and granting funding for the construction
and operation of Kivalliq Hall. As has been previously established,
whether Canada provided monies for the construction and operation
of an institution is a relevant consideration in an Article 12
application.

[18] The application judge also assessed the Indicators. First, while Kivalliq Hall
was built on Crown land, she concluded that was insufficient to infer that it
was federally owned as such “an inference would de facto lead to the
conclusion that the majority of buildings located in present day Nunavut are
federally-owned for precisely the same reason, which, in my view, is illogical”:
para 126. Second, Canada did not stand as a parent to children residing at
Kivalliq Hall: para 128. Third, Canada was “at least partially responsible for
the administration of Kivalliq Hall, primarily through its continued involvement
in the delivery of education to the residents of the Northwest Territories and
its financial contribution to the construction and operation, of the institution –
notably by way of funding the salaries of many of the staff of Kivalliq Hall”:
 6

para 131. Fourth, it was not alleged that Canada had a right to inspect Kivalliq
Hall which favoured a finding that it was not jointly responsible for its
operation: para 132. Fifth and finally, Canada did not stipulate Kivalliq Hall as
an Indian Residential School; however, she attached little weight to that
because it would make an Article 12 application unnecessary: para 133.

[19] While concluding that many of the Indicators favoured finding that Canada
was not jointly responsible for Kivalliq Hall, the application judge’s
examination of the totality of the relationship between Canada and Kivalliq
Hall led her to the opposite conclusion. At the relevant time, Canada
remained involved in education-related matters in the Northwest Territories
by virtue of the continuing role of the Commissioner in the governance of the
Northwest Territories (paras 87–99) and the Northwest Territories’ continuing
financial dependence on Canada: paras 100–109. The process for approval
and allocation of funds from Canada for the construction and operation of
Kivalliq Hall indicated that Canada was jointly responsible for its operation
and care of the children resident there: para 122. The application judge
distinguished Fontaine v Canada (Attorney General), 2014 ABQB 7
[Moosehorn Lodge QB] (where Canada provided 35% not 100% of the capital
cost as here) because of Canada’s relatively greater contribution to the
capital and operating costs of Kivalliq Hall and the extent to which Canada
was involved in the decision making concerning the allocation of those funds.
As well, Kivalliq Hall was built for the sole purpose of educating Inuit children.

[20] The application judge attached significant weight to these non-enumerated

considerations and concluded that Canada was jointly responsible for the
operation of Kivalliq Hall and care of the children resident there.

IV. GROUNDS OF APPEAL AND STANDARD OF REVIEW

[21] At the oral hearing Canada abandoned its contention that the Indicators were
paramount which leaves the more general arguments about the application
judge’s analysis of Article 12; and the submission that she made findings and
drew inferences which had no basis in fact, ignored evidence and misapplied
what evidence there was in the Article 12 analysis.
 7

[22] Two new issues emerged at the oral hearing: first, is an Article 12
determination of student placement and care based on an assessment of a
‘composite’ student, that is, a composite of all students who attended the
institution for the entire period of its existence; and second, what effect should
be given to the devolution of responsibility for education (and related matters)
from Canada to the Northwest Territories after Mr Mikkungwak graduated, in
1989.

[23] We have considered these issues but are not “satisfied that there is a
‘sufficient basis in the record on which to resolve the issue’”: Kahkewistahaw
First Nation v. Taypotat, 2015 SCC 30 at para 26, [2015] 2 SCR 548. It was
clear from the application judge’s decision that she saw the relevant time
period to be 1985 – 1989 when Mr Mikkungwak was in attendance at Kivalliq
Hall: see for example paras 1, 16, 69, 81, 86, 93, 97, 107 and 108 of The
Reasons. Nonetheless, these issues were not raised by Canada in its Notice
of Appeal or factum. These are issues that can best be resolved when there is
a complete record and full submissions, both at first instance and, if
necessary, on appeal.

[24] The standard of review of a chambers judge’s interpretation of the Settlement

Agreement is deferential: Canada (Attorney General) v Fontaine, 2017 SCC
47, [2017] 2 SCR 205:

[35] The interpretation of the [Settlement Agreement] is a question of

mixed fact and law reviewable for palpable and overriding error. …
the palpable and overriding error standard governs appellate review
of the supervising judge’s interpretation of the [Settlement
Agreement]. … And, as shall become apparent below, the factual
matrix looms large in ascertaining the meaning of this particular
contract.

[25] Palpable and overriding error is the standard of review for findings or
inferences of fact and questions of mixed fact and law: Moosehorn Lodge CA
at paras 16–19.

[26] Simply stated, this appeal turns on the application judge’s inferences of fact
about Canada’s role in the Northwest Territories from the time when the need
for what became Kivalliq Hall was identified (1984), until the applicant
student’s residence in Kivalliq Hall ended (1989). Canada contends that the
 8

inferences about Canada’s role were palpably wrong (“pure speculation and
conjecture”) and warrant appellate intervention. The respondents rely on the
deferential standard of review and in particular the following passage from
Housen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235:

[23] We reiterate that it is not the role of appellate courts to

second-guess the weight to be assigned to the various items of
evidence. If there is no palpable and overriding error with respect to
the underlying facts that the trial judge relies on to draw the
inference, then it is only where the inference-drawing process itself is
palpably in error that an appellate court can interfere with the factual
conclusion. The appellate court is not free to interfere with a factual
conclusion that it disagrees with where such disagreement stems
from a difference of opinion over the weight to be assigned to the
underlying facts.

V. ANALYSIS

1. Student Placement by Canada - Section 12.01(2)(a)

[27] Canada submits on appeal that there was no evidence at all before the
chambers judge that Mr Mikkungwak had been placed in Kivalliq Hall by
Canada, referring to paragraphs 75–77 of the Reasons. What evidence there
was concerned other students—the earliest of which attended Kivalliq Hall in
the fall of 1989—and that evidence was that those students were placed in
Kivalliq Hall by parents (either directly or via social services) or the
government of the Northwest Territories. Accordingly, Canada contends it
was a palpable and overriding error to infer that Canada was responsible for
placing the applicant or, indeed, any student.

[28] It is true that Mr Mikkungwak merely states in his affidavit that he “was told”
and “was informed” that he would be attending Kivalliq Hall, and said nothing
about who said so. The application judge acknowledged this shortcoming but
placed significant weight on the fact that he would have been attending a
Schedule E Indian Residential School had the last minute change not
occurred, and this “invites the inference that this placement was by or under
the authority of Canada for the purposes of education”: para 77. He states in
 9

his affidavit that “the environment at Kivalliq Hall was foreign [and] [t]he
experience resulted in a partial loss of my ability to speak Inuktitut and [an]
extended period of separation from my family”.

[29] We agree with Canada’s submission that the evidence falls far short of that
adduced in Stirland Lake (when there was evidence of an express agreement
with Canada about student placement). Canada also contends that mere
diversion from an Indian Residential School to another school is not a basis
for concluding that the school to which the student is diverted meets Article
12’s requirements, relying on Teulon Residences CA at paras 40–44 and Lac
La Ronge (Indian Band) v Canada (Attorney General), 2017 SKCA 64 at
paras 58, 60, [2017] SJ No 367 (QL) [Lac La Ronge CA].

[30] In our view Teulon Residences CA is factually distinguishable. The Court held
that: “not only did [the student] not live at an IRS, but he did not live in a
residence affiliated with an IRS. He attended a public school with local,
non-Aboriginal students that was run by a local school board unconnected
with either Canada or an IRS”: para 43. Lac La Ronge CA offers more
assistance. The Lac La Ronge applicants submitted that students “were
required to go to school and the only way they could do so was if they resided
at a home near where the schools were located”, away from their parental
home. The Saskatchewan Court of Appeal held:

[60] To give effect to this argument, however, the Agreement

would have to be amended. It would not be necessary to specify in
Article 12 that certain criteria had to be met. It would only be
necessary to say “all Indian students who attended a school outside
of their communities and were required to reside elsewhere in order
to do so are entitled to compensation”. The parties to the Agreement
must have intended something more than attendance at a school
necessitating residence away from home in order to satisfy the first
criterion. The question remains one of fact: Were the children
residing at the Home placed there by or under the authority of
Canada for the purposes of education?

[31] Despite Canada’s able argument, we are not persuaded that the inference
made by the application judge is a reviewable error as defined by Housen.
We are reinforced in this conclusion by the fact that when Mr Mikkungwak
was placed in Kivalliq Hall in 1985, Canada’s appointee, the Commissioner,
 10

had the statutory authority “respecting the conveyance of students” in the

legislation governing education (An Ordinance Respecting Education in the
Northwest Territories, section 103(n)). We discuss the role of the
Commissioner more fully in the next section but for present purposes it is
sufficient to set out the application judge’s findings that the office of the
Commissioner was established by the Northwest Territories Act, RS, c N-22,
s 1 (1970) and section 3(1) described the Commissioner as the “chief
executive officer” of the Northwest Territories. Canada appointed the
Commissioner. The Act directed the Commissioner to “administer the
government of the Territories under instructions from time to time given by the
Governor in Council or the Minister [responsible for DIAND]”: Reasons at
para 87.

[32] For the reasons outlined above, we are not prepared to question the
application judge’s failure to take into account that some other students were
not placed in Kivalliq Hall by Canada after 1989. However, we do note that
section 12.01(2)(a) uses the words “the child” (not “the children” as used in
sub-section (b)) and two aspects of the preamble to the Settlement
Agreement are of assistance:

B. The Parties desire a fair, comprehensive and lasting resolution of

the legacy of Indian Residential Schools;

C. The Parties further desire the promotion of healing, education, truth

and reconciliation and commemoration;

[33] We are mindful of the Supreme Court’s direction that we are not free to
interfere or “second-guess the weight to be assigned to the various items of
evidence” absent “palpable and overriding error with respect to the underlying
facts” or “the inference-drawing process itself is palpably in error”: Housen at
para 23.

[34] Accordingly, we decline to interfere with the application judge’s inference of

fact that Mr Mikkungwak was placed in Kivalliq Hall by Canada.
 11

2. Operation of Kivalliq Hall and Care of the Children - Section

12.01(2)(b)

[35] Canada quite properly abandoned its position that the Indicators were
paramount therefore we only discuss the remaining aspects of this ground of
appeal; the application judge’s analysis of the factors that led her to conclude
that section 12.01(2)(b) was satisfied, followed by her findings and inferences
of fact.

[36] Courts interpret section 12.01(2)(b) by examining the totality of the

relationship between Canada and the institution to determine whether
Canada was jointly or solely responsible for its operation and care of the
children resident there. As stated by in Moosehorn Lodge QB (aff’d
Moosehorn Lodge CA):

[12] Section 12.01(2)(b) calls for an examination of the totality of

the relationship between Canada and the institution in question, and
that the non-exhaustive indicators enumerated in Section 12.01(3)
are neither a checklist nor individually determinative. Rather, the
enumerated indicators, together with appropriate other indicia, guide
an evaluation of the broader nature of the relationship in issue. The
weight to be assigned to any particular indicator will necessarily be
dictated by the circumstances of the institution in question.

[37] This characterization has been widely adopted: Fontaine v Canada (Attorney
General), 2014 MBQB 209, aff’d Assembly of Manitoba Chiefs v Canada
(Attorney General), 2017 MBCA 2 at para 15 [Teulon Residences CA];
Fontaine v Canada (Attorney General), 2018 ONSC 24 at para 51 [Fort
William Hospital (Sanatorium) School]; Fontaine v Canada (Attorney
General), 2014 BCSC 1939 at para 53 [Belcher Island Hostels].

[38] The Article 12 analysis focuses on the broader relationship between Canada
and the institution in order to “measure the degree to which Canada was
responsible for the operation of an institution in which Indian children
resided”: Fontaine v Canada (Attorney General), 2013 SKQB 323 at para 34;
429 Sask R 100 [Lac La Ronge QB]. The question of whether an institution
should be added to Schedule “F” is contextual and depends on the specific
facts under consideration: Fontaine v Canada (Attorney General), 2011
ONSC 4938 at para 6; [2011] 4 CNLR 111 [Stirland Lake].
 12

a) The Indicators Enumerated in s. 12.01(3)

[39] A plain reading of section 12.01(3) makes it clear that the Indicators are not a
complete code, individually determinative or mandatory; the introductory
clause states the Indicators “include, but are not limited to” and this is further
supported by use of the disjunctive “or”. This is well supported by the case law
which has held that the analysis is informed by the Indicators but no single
one is determinative: Moosehorn Lodge QB at para 12; Teulon Residences
CA at para 31; Belcher Island Hostels at para 53. If individual indicators
support conflicting conclusions, the court must weigh all the evidence to
determine if an institution is an Indian Residential School: Teulon Residences
CA at para 31, 39; Fort William Hospital (Sanatorium) School at para 52.

[40] The jurisprudence is also clear that courts may consider factors other than the
Indicators when interpreting section 12.01(2)(b): Moosehorn Lodge QB at
paras 12, 49; Lac La Ronge CA at para 122; Fort William Hospital
(Sanatorium) School at paras 67, 71. The Saskatchewan Court of Appeal has
gone further and held that an institution need not satisfy any of the Indicators
if the applicant can demonstrate that the criteria outlined in section
12.01(2)(b) is met: Lac La Ronge CA at para 108:
In order to achieve that designation [as an Indian Residential School
under Schedule “F”], it was necessary to meet the criteria outlined in
s. 12.01(2)(b) or otherwise be able to persuade the supervising
judge as to Canada's joint responsibility for the Home, using similar
indicators as enunciated in s. 12.01(3).

[41] This suggests that an Article 12 application’s success is not dependent on

satisfying the Indicators. The applicant must show either that Canada was
prima facie jointly or solely responsible for the operation of the residence and
care of the children resident there; or was jointly or solely responsible for the
operation of the residence and care of the children resident there based on
the Indicators or other factors relevant to the inquiry.

b) What other factors have been considered?

[42] The following additional factors have been used to determine whether
Canada was jointly or solely responsible for the operation of the residence
and care of the children: the role Canada had in its construction; the extent to
 13

which Canada conducted financial audits or played a role in its administration;

how the institution was managed (i.e., was there an independent board of
directors) and whether Canada played a role in relation to the board; and the
extent to which Canada influenced staffing, curriculum development,
instruction or management: Lac La Ronge CA at para 122. A further review of
the case law suggests that at least four other factors have been considered:
Canada’s financial contribution to the institution; the relationship between
Canada and the institution; Canada’s provision of clothing allowances for
Indian students; and Canada’s provision of transportation for Indian students.
Many of these factors could just as well be used to analyze the extent to
which “Canada was at least partially responsible for the administration of the
institution” pursuant to s. 12.01(3)(c).

c) Conclusion

[43] The Indicators are non-exhaustive and no single factor is determinative.

Instead, courts look at the totality of the relationship between Canada and the
institution to determine if Canada was jointly or solely responsible for its
operation of the institution and the students’ resident there. This
determination is fact-specific and requires the court to weigh all of the
evidence.

[44] The application judge did not err in relying on factors other than the Indicators
to reach her conclusion. This approach is consistent with the language of the
section and the jurisprudence.

[45] This takes us to the issue of whether the application judge’s inferences of fact
warrant our intervention.

d) Operation of Kivalliq Hall and Care of the Children Resident

There - Section 12.01(2)(b)

[46] Canada’s submits that the application judge’s conclusion—that the

requirements of section 12.01(2)(b) had been satisfied—was palpably wrong
because not only did she conclude that the Indicators were not satisfied
(Reasons paras 126–134), she made palpably wrong inferences of fact that
were not supported by the evidence in her assessment of the
non-enumerated factors.
 14

[47] While it is not our role to re-weigh the evidence, we briefly discuss two of the
Indicators then turn to other factors that weighed heavily in the application
judge’s determination.

[48] The first Indicator—section 12.01(3)(a)—is whether Kivalliq Hall was federally
owned; the application judge was not prepared to conclude it was. But related
to that Indicator is Canada’s financial contribution to the capital cost of an
institution, which has been consistently recognized in the case law as
relevant, see e.g., Moosehorn Lodge QB at para 52, aff’d Moosehorn Lodge
CA at para 25–26, 31, 39, where 35% of the funding for construction was
deemed insufficient; and Lac La Ronge CA at para 123, which held that
private funding militated against finding that Canada was responsible for the
institution. Courts are also more likely to find that Canada was responsible for
an institution if Canada made general financial contributions to the institution,
rather than contributions proportionate to the number of Indian students in
attendance.

[49] The application judge found that Canada funded the entire cost of the
construction of Kivalliq Hall and paid at least some of its operating costs.
(Canada conceded this at the appeal hearing.) These financial contributions
are general financial contributions to the operation of the residence as a
whole and weigh in favour of the conclusion that Canada was jointly or solely
responsible for Kivalliq Hall and the children resident there.

[50] Canada submits that the application judge’s finding that “I cannot go so far as
to say that Canada stood as a parent to the children residing at Kivalliq Hall”
(para 128) means that the second branch of the section 12.01(2)(b)
test—“care of the children resident there”—was not satisfied. However, “care
of” and “parent to” are different. By analogy, see the presumption against
tautology when interpreting legislation; the fact that different terms were used
is indicative that they have different meanings. “Parent to” is merely one of the
indicators to assess “care of” but the case law supports a broader evaluation
of whether Canada was jointly responsible for the care of the children. “In that
category [care of the children] I would include the provision of a counsellor
and a nurse, making student travel arrangements to and from their home
communities and requiring fire and safety inspections.”: Teulon Residences
CA at para 35. The evidence considered by the application judge was that
 15

Canada provided nursing care for the students as well as funding for a gym
teacher.

[51] We now turn to the factors that weighed heavily in the application judge’s
determination: Canada’s involvement in education-related matters in the
Northwest Territories and its ongoing financial involvement in the operation of
Kivalliq Hall.

[52] On the basis of the evidence before her, the application judge was satisfied
that “during the relevant period, the funding of the GNWT by Canada and the
project of devolution between them was still evolving. Canada remained
involved in education-related matters in the Northwest Territories by virtue of
at least two important considerations.” The first was the continuing role of the
Commissioner in the governance of the Northwest Territories: paras 87–96.
The second was the devolution of power; Canada’s position, which the
application judge rejected, was that this was complete by 1984, when Canada
approved and funded construction of Kivalliq Hall. The application judge
relied on the NWT Commissioner John H. Parker’s “Annual Reports of the
Government of the Northwest Territories to the federal Minister responsible
for [the Department of Indian and Northern Affairs]” to conclude that while
devolution of power was underway, it was not complete by the time Kivalliq
Hall began operation. The Commissioner was a Canada appointment, as
were four representatives on the governance committee. And even in the
course of Kivalliq Hall’s operation, Canada maintained a role; for example,
nurses who cared for students were paid by Health Canada. The legislation
governing education, An Ordinance Respecting Education in the Northwest
Territories, especially sections 3 (role of the Commissioner) and 103
“respecting the conveyance of students”, were also factors the application
judge relied on to support her determination.

[53] The application judge’s conclusion that “care and operation” were satisfied on
the basis of the record was not a palpable and overriding error. Accordingly
we dismiss the grounds of appeal associated with the second branch of the
Article 12 test.
 16

VI. CONCLUSION

[54] On this record it was not a reviewable error for the application judge to
designate Kivalliq Hall as a Schedule F Indian Residential School. She
considered and weighed the evidence, and considered the totality of the
relationship between Canada and Kivalliq Hall in order to assess the degree
to which Canada was responsible for the placement and care of its students
and the operation of the institution. While it would have been possible to
reach a different conclusion, that does not constitute reviewable error.

[55] The appeal is dismissed.

Appeal heard on February 13, 2018.

Memorandum filed at Iqaluit, Nunavut

this 20th day of July, 2018

Rowbotham J.A.

Greckol J.A.

Strekaf J.A.
 17

Appearances:

C. Dickins,
for the Appellant

R. A. Murray,
for the Respondent