COURT OF APPEAL FOR BRITISH COLUMBIA
| Citation: | Fontaine v. Canada (Attorney General), |
|
| 2019 BCCA 246 |
Date: 20190705
Docket: CA45430
Between:
Larry Philip Fontaine, et al.
Appellants
(Plaintiffs)
And
The Attorney General of Canada, et al.
Respondents
(Defendants)
Brought under the Class Proceedings Act, R.S.B.C. 1996, c. 50
| Before: | The Honourable Madam Justice Newbury The Honourable Madam Justice Garson The Honourable Madam Justice Fisher |
On appeal from: An order of the Supreme Court of British Columbia, dated March 12, 2018 (Fontaine v. Canada (Attorney General), 2018 BCSC 375, Vancouver Docket L051875).
| Counsel for the Appellant: | R.E. Olschewski |
| Counsel for the Respondent: | C.A. Coughlan |
| Place and Date of Hearing: | Vancouver, British Columbia May 16, 2019 |
| Place and Date of Judgment: | Vancouver, British Columbia July 5, 2019 |
| Written Reasons by: |
| The Honourable Madam Justice Fisher |
| Concurred in by: |
| The Honourable Madam Justice Newbury The Honourable Madam Justice Garson |
Summary:
The appellant brought a claim of student-on-student abuse within the Independent Assessment Process (IAP) established under the Indian Residential Schools Settlement Agreement (IRSSA). Her claim was dismissed on the basis that an adult employee took reasonable steps to prevent the abuse. The dismissal was upheld on review, re-review, and by the supervising judge. Held: appeal dismissed. Judicial recourse is available only where there has been a failure to apply the terms of the IRSSA, or if there is a “gap” in the agreement that requires a remedy. Here, the appellant’s complaint concerned factual findings. Despite the misapprehension of some of the evidence by the initial adjudicator, and perhaps by the review adjudicator, there was evidence before the adjudicators that supported the conclusions reached. These factual issues are the kinds of matters that the IRSSA contemplates are within the exclusive jurisdiction of the adjudicators and the supervising judge properly refused to intervene. Moreover, there was no basis to conclude that the adjudicator failed to apply the IAP by failing to apply admissions, as the adjudicator did not consider that any admissions were relevant to the issue of reasonable steps.
Reasons for Judgment of the Honourable Madam Justice Fisher:
[1] The appellant brought a claim within the Independent Assessment Process (IAP) established under the Indian Residential Schools Settlement Agreement (IRSSA). Her claim, that several male students sexually assaulted her on a school bus, turned on the issue of whether an adult employee of the entity operating the Indian Residential School – the bus driver – took reasonable steps to prevent the abuse. An adjudicator dismissed the claim and two subsequent reviewers upheld the adjudicator’s decision. A supervising judge refused to interfere with those decisions. This is an appeal from the judge’s refusal to grant relief.
[2] The IRSSA is the largest and most complex class action settlement in Canada. It is a comprehensive settlement that has provided a process for the resolution of claims arising from the long and tragic history of abuse suffered by thousands of Indigenous children who attended Residential Schools across Canada. The background to and the nature of the IRSSA has been described in numerous decisions, including J.W. v. Canada (Attorney General), 2019 SCC 20 [J.W.]; N.N. v. Canada (Attorney General), 2018 BCCA 105 [N.N.]; and most recently, Brown v. Canada (Attorney General), 2019 BCCA 245 (released concurrently with these reasons).
[3] Briefly, the IRSSA provides two avenues to compensation. The first is a “common experience” payment to all eligible former students; the second is an individual payment to eligible claimants who establish specific compensable harms. These latter claims are adjudicated in the IAP, which is governed by detailed rules set out as Schedule D to the IRSSA, often referred to as the IAP Model.
[4] Individual IAP claims are managed and decided by highly trained, independent adjudicators who are tasked with assessing the credibility of each claim and determining whether compensation is payable under the terms of the IAP Model. The hearings are conducted in an inquisitorial manner, with the goal of being respectful to claimants and conducive to obtaining a full description of their experiences.
[6] It is well established that there is no right of appeal and no right to judicial review of an IAP decision: Fontaine v. Duboff Edwards Haight & Schachter, 2012 ONCA 471 [Schachter]; Spanish IRS; N.N.; J.W. The only avenue for judicial consideration is “judicial recourse” as provided in the court orders that approved the IRSSA and the Court Administration Protocol (CAP) appended to those orders. The order approving the IRSSA in the Supreme Court of British Columbia provided for supervision as follows:
13. This Court shall supervise the implementation of the Agreement and this judgment and, without limiting the generality of the foregoing, may issue such orders as are necessary to implement and enforce the provisions of the Agreement and this judgment.
[7] The CAP required the courts to designate two Administrative Judges (one Eastern and one Western) and nine supervising judges. Parties to the IRSSA access judicial recourse through Requests for Direction (RFDs) made to a supervising judge.
[8] The nature of this judicial recourse has been the subject of numerous decisions, beginning with Schachter, confirmed in Spanish IRS and N.N., and most recently discussed in J.W. and Brown. This is addressed below.
[9] The appellant claimed that while she was a student at Prince Albert Indian Residential School (the IRS), she was sexually assaulted by several male students. The assault occurred at the back of a school bus, which was parked on the IRS property after returning from a hockey game.
[10] The appellant’s evidence was that as soon as the bus stopped, the driver exited the vehicle. Immediately, she and her female companion were grabbed by boys who were sitting behind them. She was forced onto the floor of the bus and held down while one of the boys slipped his hand under her pants and digitally penetrated her and one or more of the other boys fondled her chest. The appellant cried out, and an older female student called out and went to retrieve the bus driver. As soon as the driver returned to the bus, the assault stopped.
[11] The criteria in the IAP Model for sexual or physical assaults committed by students (student-on-student, or SOS) of the severity alleged in this case (SL3) are as follows:
a) Did the assault take place on school premises?
b) Did an adult employee of the IRS have, or should they reasonably have had, knowledge that abuse (i) of the kind proven was occurring at the IRS (ii) at the relevant time period?
c) Did an adult employee at the IRS fail to take reasonable steps to prevent the assault?
[12] The adjudicator believed the appellant and found that she was sexually assaulted by several students as she described. He was satisfied that the first two criteria for SOS sexual assault had been met: the assault took place on school premises and adult employees of that IRS had knowledge that abuse of that kind was occurring at the school at that time. However, the adjudicator was not satisfied that the third criteria had been met. He concluded that “reasonable steps” did not require constant or absolute supervision and that in this case, “there was a reasonable level of supervision in that there was an adult bus driver who was for that time responsible for the children”. He therefore dismissed her claim.
[13] In finding that adult employees had knowledge that abuse of the kind proven was occurring at the IRS at the relevant time, the adjudicator relied on published admissions regarding this IRS. At para. 13, he stated:
An examination of these admissions leads me to the conclusion that there was a highly sexualized atmosphere at the residence. The school staff knew of the abuse of the kind proven. I note here that the fact that many of the admissions relate to male-on-male or female-on-female sexual abuse, which is difference than male-on-female sexual abuse which occurred here. This difference is not sufficient to make the overall sexual abuse that was known to be of a different kind…
[14] As to whether an adult employee took reasonable steps to prevent the assault, the adjudicator did not find past admissions of assistance. He explained this at para. 17:
Whether reasonable steps were taken or not is a question of fact that must be decided by the Adjudicator. While previous admissions may support a lack of reasonable steps or lack of reasonable supervision, the evidence from this particular case can nevertheless establish that reasonable steps had been taken. This is what occurred here.
[15] The adjudicator rejected an argument by the appellant that the assault would have been prevented had the bus driver remained on the bus, or at least by doing so, reasonable steps would have been taken. He explained (at paras. 15–16):
…The evidence revealed that the older boys acted quickly when the bus stopped to grab the Claimant and the other girl and to assault them. The assault occurred very quickly and was over as soon as the Claimant cried for help. The bus driver was there as soon as he heard this cry.
In my view, the outcome would have been no different if the bus driver had remained on the bus. This is because the assault occurred and was completed as quickly as it was. The bus driver responded to the cry for help. Whether he was inside or outside the bus would not have made a difference.
[16] The appellant sought a review primarily on the basis of palpable and overriding error. She pointed to inaccuracies in the adjudicator’s finding that the bus driver responded immediately upon hearing her cries for help. She also asserted that there was no evidence to support his finding that the outcome would have been no different had the driver remained on the bus, and that this constituted a misapplication of the IAP Model.
[17] The review adjudicator found that the initial adjudicator had committed a palpable (plain to see) error but not an overriding (material) error. He concluded, on a review of the transcript of the hearing, that the driver did not return to the bus until an older female student called out for him during the assault, and thus it was not clear that the Claimant’s cries for help triggered the driver’s return to the bus. At para. 28:
The Adjudicator made a palpable error when he concluded that the bus driver was there as soon as he heard the cry for help. The evidence reveals that he only returned after the older girl called out. This error was not overriding. Based on the transcript, the driver immediately boarded the bus and ended the incident after the older girl got his attention. He was obviously within earshot.
[18] The review adjudicator also concluded that the adjudicator did not misapply the IAP Model because his finding that the incident would have occurred in any event was an inference that could reasonably be drawn from the evidence. Finally, he agreed with the initial adjudicator that reasonable steps do not require constant presence and he concluded (at para. 37) that reasonable steps were taken in this case:
… An older girl was watching over the children and she called out to the bus driver when the abuse occurred. He was clearly within earshot because he quickly responded and put an end to the incident.
[19] The request for review was therefore dismissed.
[20] The appellant sought a re-review on the basis that the review adjudicator misapplied the IAP Model by failing to correct palpable and overriding errors. She also asserted that the review adjudicator made further errors of his own by affirming findings not supported by the evidence, more particularly that the bus driver was “obviously within earshot”.
[21] The re-review adjudicator considered the only permitted ground of review on a re-review: a failure to properly apply the IAP Model to the facts as found by the initial or review adjudicators: see Spanish IRS at para. 65. He found that the appellant was essentially seeking a review for palpable and overriding errors that were not available on a re-review, and explained the difference at para. 38:
Review requests based on misapplication of the IAP Model are uniquely concerned with legal issues involving substantive application and interpretation of the IAP Model, while those based on palpable and overriding error are concerned with findings of facts. This is a significant distinction – the inquiry in reviews involving misapplication of the IAP Model is focused on whether or not the correct tests were utilized, not whether or not the correct conclusion was reached. Whether or not the correct conclusion was reached is considered in “palpable and overriding error” reviews.
[22] The re-review adjudicator then found that both adjudicators below correctly applied the IAP Model in their analyses and decision making, and dismissed the review.
[23] The appellant then submitted an RFD to the supervising judge on the grounds that the initial and review adjudicators made findings that were not supported by the evidence, and that this constituted a breach of natural justice or procedural fairness and a failure to properly apply the IAP Model. This RFD was “bundled” with two others and all three were decided in the same set of reasons.
[24] The supervising judge (who is also the Western Administrative Judge), described the background of the IRSSA, the nature of the IAP, the role of IAP adjudicators, and the process for review. She noted that the IAP provides a closed process for the determination of individual claims, with one in-person hearing and two levels of review. She also noted that in considering whether an adjudicator properly applied the IAP Model to the facts, the standard of review is correctness: “If an adjudicator is incorrect in his or her application of the IAP Model to the facts, then the review adjudicator is meant to correct the decision” (at para. 16).
[25] The supervising judge set out the principles applicable to the availability of judicial recourse to challenge IAP decisions. The appellate authorities available to her included Schachter, Spanish IRS and the Manitoba Court of Appeal decision in J.W., 2017 MBCA 54. She described (at para. 75) the “Schachter threshold” of judicial recourse as
limited to “very limited” or “very exceptional” circumstances, where the decision of the Chief Adjudicator or his designate reflects a failure to comply with the terms of the IRSSA or the implementation orders.
[Footnotes omitted.]
[26] She noted, at para. 78, her own explanation in Fontaine v. Canada (Attorney General), 2016 BCSC 2218 [Bundled RFDs], endorsed in Spanish IRS, that Schachter
limits judicial recourse to exceptional circumstances where an IAP decision “reflects a patent disregard for the IAP Model” or is “so exceptionally wrong as to amount to a failure to apply the IAP Model”. In limiting judicial recourse in this way, Schachter acknowledged that the IRSSA is a contract and parties to that contract intended that access to the supervising judges be “extraordinarily limited” insofar as the IAP is concerned. The IAP represents a “complete code” and by limiting access to the Courts to cases involving exceptional circumstances, “finality is preserved and the expertise of the Chief Adjudicator and those under his supervision is recognized”.
[Footnotes omitted.]
[27] The supervising judge reviewed the decision of the Manitoba Court of Appeal in J.W., where the court, held that the Schachter threshold should be limited to “very exceptional cases” where the adjudicator failed to consider the correct terms of the IRSSA and the IAP Model and should not extend to cases where the adjudicator interpreted the correct terms unreasonably. She noted the concern of Beard J.A. that extending the jurisdiction of the courts to include the right to determine whether there has been an unreasonable interpretation of a term of the IAP would have the impermissible effect of opening the door to further applications to the courts.
[28] All three RFDs relied in some respect on procedural fairness to justify judicial recourse. On this point, the supervising judge held such a position to be untenable. Referring to her decision in Fontaine v. Canada, 2018 BCSC 63 [Fontaine 63], the judge confirmed her conclusion (at para. 86) that it is wrong to import administrative law concepts into the IAP “in a manner that results in conferring rights and imposing liability for which the parties did not contract”. She held that procedural fairness was not an implied term of the IRSSA “where a breach thereto constitutes a stand-alone ground for judicial recourse”.
[29] The judge’s reasons for dismissing the appellant’s RFD are relatively brief:
[113] This RFD also concerns the factual findings made by the IAP adjudicators in this case. Compensation was denied at all three levels of adjudication on the basis that the test for SOS abuse had not been met.
[114] As noted above, the interpretative choices of IAP adjudicators are entitled to significant deference. I am not satisfied that the interpretative choices and conclusions made in this case are exceptionally unreasonable or that making them constituted a patent disregard for the IAP Model.
[115] The Adjudicator considered the proper provisions of the IAP Model and considered all of the circumstances surrounding the allegations. In particular, the Adjudicator found that the driver returned to the bus immediately upon being summoned, and thus it could not be concluded that an adult employee of the IRS had “failed to take reasonable steps” to prevent the assault in question. The Review and Re‑Review Adjudicators endorsed the Adjudicator’s decision. They held that the Adjudicator conducted a thorough and balanced consideration of all of the relevant circumstances of the case. Even if I were to disagree with the Adjudicator’s factual findings, that is an insufficient basis for judicial recourse.
[30] She did not see exceptional circumstances permitting recourse to the court and dismissed the RFD.
[31] In Schachter, the Ontario Court of Appeal described judicial recourse as being available in “very exceptional” or “very limited” circumstances. For the court, Rouleau J.A. held (at para. 78) that an RFD “may only be brought where it is alleged that the Chief Adjudicator’s decision reflects a failure to enforce the provisions of the [IRSSA] and the implementation orders”. This narrowly defined scope reflected the importance of the finality of decisions under the IRSSA and the relative expertise of the Chief Adjudicator (in that case in relation to the legal fee review process).
[32] In Spanish IRS, the Ontario Court of Appeal held that the same principle applied to IAP compensation decisions. Sharpe J.A. agreed (at para. 54) with the interpretation of Schachter described by the Western Administrative Judge, Brown J., in Fontaine v. Canada (Attorney General), 2016 BCSC 2218, that judicial recourse was limited to situations where a decision under the IAP reflected “a patent disregard for the IAP Model’s compensation rules, such as a failure to award compensation on the basis of the rubric it provides” or was “so exceptionally wrong as to amount to a failure to apply the IAP Model”. He also concluded (at para. 55) that the supervising judge is not permitted to engage in a detailed review of the factual findings made by the adjudicator so as to undertake what would be a “full-blown appeal of the IAP decisions on both fact and law”.
[34] The Supreme Court of Canada’s decision in J.W. was released after the supervising judge’s decision in this case, but before this appeal was argued. A majority of the court allowed the appeal from the decision of the Manitoba Court of Appeal, which had rejected the supervising judge’s determination that his jurisdiction allowed him to ensure that the re-review adjudicator did not endorse a legal interpretation that was so unreasonable that it amounted to a failure to properly apply the IAP Model. The parties addressed this decision briefly in oral argument.
[35] There are three sets of reasons in J.W. All seven judges generally accepted the principle in Schachter but differed in their approach to what constitutes a sufficient basis to justify judicial recourse. Three judges (Abella J. with Wagner C.J.C. and Karakatsanis J. concurring) rejected the approach taken by the Manitoba Court of Appeal and four judges (Côté J. with Moldaver J. concurring and Brown J. with Rowe J. concurring) adopted its approach. However, of the latter group, only two (Côté and Moldaver JJ.) would have allowed the appeal.
[36] The appellant suggested that the distinction between the reasons of Abella J. and Côté J. is a “distinction without a difference”, that judicial recourse is available where there has been a failure to apply the terms of the IRSSA or where there is a gap, and an aberrant decision is in essence a failure to apply the terms of the IRSSA.
[37] In my view, there is a distinction between the reasons of Abella J. and Côté J., which I have discussed at some length in the companion case, Brown. I will not repeat that analysis here, other than to state my conclusion that J.W. has not clearly established a scope for judicial recourse that is narrower than, or substantively different from the test established in Schachter and further articulated in Spanish IRS and N.N. All of the authorities, including J.W., confirm that judicial recourse is available only where there has been a failure to apply the terms of the IRSSA, or if there is a “gap” in the agreement that requires a remedy.
[38] Judicial opinion continues to be divided on what constitutes a failure to apply the terms of the IRSSA. Nonetheless, it is clear that judicial recourse is extremely limited, and in my view, will not encompass interpretive errors by adjudicators that fall short of a failure to apply all relevant provisions of the IAP Model and the IRSSA (as in Brown) or a “patent disregard for the IAP Model”: see Spanish IRS at para. 54.
[39] The appellant submits that the supervising judge erred by upholding findings of fact that were unsupported by the evidence and by misapplying the test for judicial recourse in relation to such findings. She equates these errors to a failure to hear or consider relevant evidence and a corresponding breach of procedural fairness. The appellant also submits that the adjudicator failed to apply the IAP Model by ignoring prejudicial admissions from Canada that were relevant to whether reasonable steps had been taken to prevent the sexual assault.
[40] Canada submits that the supervising judge articulated and applied the correct scope of judicial recourse in accordance with the Schachter principle and the decisions endorsing it, including J.W., and her refusal to intervene is entitled to deference from this court. Canada says that the record does not support the appellant’s contention that the adjudicator failed to hear or consider evidence, but rather shows that the inferences drawn and conclusions reached were supported by the evidence.
[41] In Canada (Attorney General) v. Fontaine, 2017 SCC 47 [SCC Records Decision], the Supreme Court established that the standard for appellate review of a supervising judge’s interpretation of the IRSSA is the standard of deference applicable to contractual interpretation as a question of mixed fact and law:
[35] The interpretation of the IRSSA is a question of mixed fact and law reviewable for palpable and overriding error. Contractual interpretation generally involves questions of mixed fact and law subject to appellate deference (Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at paras. 50-51 and 55; Heritage Capital Corp. v. Equitable Trust Co., 2016 SCC 19, [2016] 1 S.C.R. 306, at para. 21). This rule is not absolute. It does not apply, for example, to the interpretation of a standard form contract, where its interpretation has precedential value, and there is no meaningful factual matrix specific to the particular parties to assist the interpretation process (Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 S.C.R. 23, at para. 46). In our view, however, the general rule stated in Sattva applies here, such that the palpable and overriding error standard governs appellate review of the supervising judge’s interpretation of the IRSSA. While the IRSSA undoubtedly has “very significant implications for Canada and our aboriginal peoples” (C.A. reasons, at para. 294), it is at root a contract, the meaning of which depends on the objective intentions of the parties. As the majority at the Court of Appeal observed, the question of impact is distinct from precedential value. While the supervising judge’s interpretation of the IRSSA will impact thousands of IAP claimants, it will have no significant precedential value outside of the IAP due to the IRSSA’s sui generis nature. And, as shall become apparent below, the factual matrix looms large in ascertaining the meaning of this particular contract.
[42] However, in J.W., Côté J. held (at paras. 110–12) that the standard of review in respect of the jurisdiction of a supervising judge to assess IAP decisions is correctness. This was based on the principle in Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, as the answer would have precedential value for all claims under the IAP. She distinguished SCC Records Decision on the basis that the supervising judge’s interpretation of the IRSSA in J.W. did not involve his interpretation of the agreement but rather his jurisdiction to “arrive at his own interpretation of the IRSSA and substitute it for that of the IAP adjudicators”. Brown J. concurred with these paragraphs.
[43] In this appeal, the supervising judge’s determination of her jurisdiction to assess IAP decisions is to be reviewed on the standard of correctness, but insofar as her decision involved an interpretation of the SOS criteria under the IAP Model, the standard is that of palpable and overriding error.
[44] On the question of the supervising judge’s jurisdiction, the judge made no error on the basis of the jurisprudence available to her at the time. She considered the Schachter threshold to limit judicial recourse to exceptional circumstances such as where an IAP decision “reflects a patent disregard for the IAP Model” or is “so exceptionally wrong as to amount to a failure to apply the IAP Model”. She also considered the Manitoba Court of Appeal decision in J.W. but without comment on whether it narrowed the circumstances in which judicial recourse could be invoked.
[45] As I indicated above, J.W. has not clearly established a scope for judicial recourse that is substantively different from the principle established in Schachter and further articulated in Spanish IRS and other cases. As the supervising judge restricted her jurisdiction to intervene in accordance with this principle, it is my view that she was clearly correct.
[46] In accordance with the appropriate principles, the supervising judge did not engage in a detailed review of the factual findings made by the adjudicators and showed deference to their findings and interpretive choices. In my view, her conclusion that there was no basis to intervene is also entitled to deference. While her reasons are brief, it is readily apparent that the judge was satisfied that there was evidence before the adjudicators that supported the conclusions reached.
[47] I agree with the supervising judge that the appellant’s complaint concerns factual findings. Despite the misapprehension of some of the evidence by the initial adjudicator, and perhaps by the review adjudicator, the findings that the assault occurred quickly and the bus driver returned quickly, whether or not he was in earshot, are supported by the evidence. These factual issues are the kinds of matters that the IRSSA contemplates are within the exclusive jurisdiction of the IAP adjudicators and it is not within the purview of judicial supervision to engage in another review on palpable and overriding error.
[48] With respect to procedural fairness, the appellant did not address this in oral argument, and Canada responded only by submitting that this was not a case of a failure to hear or consider evidence. The supervising judge addressed this issue more generally, following her earlier decision in Fontaine 63 that administrative law principles are not appropriately incorporated into the IAP “in a manner that results in conferring rights and imposing liability for which the parties did not contract”. I do not consider it appropriate or necessary to address this issue, as it was not fully argued before us and Fontaine 63 is currently under appeal. In any event, I agree with Canada that this is not a case of a failure to hear or consider evidence.
[49] The appellant focused much of her argument on the issue of admissions. From my review of the submissions that were before all levels of review, as well as the RFD, it appears that the appellant did not raise this as a central issue after the first review. The supervising judge referred to her submission about the numerous (117) SOS admissions made in relation to the Prince Albert IRS, but noted only that the central issue was in relation to whether reasonable steps had been taken to prevent the abuse.
[50] Canada submits that admissions are applied so far as adjudicators consider them applicable, and in this case, there were no admissions that assisted the adjudicator on the issue of reasonable steps. I agree with this submission.
[51] The IAP Model addresses the issue of admissions in this context as follows:
With respect to student-on-student abuse allegations, the government will work with the parties to develop admissions from completed examinations for discovery, witness or alleged perpetrator interviews, or previous DR or IAP decisions relevant to the Claimant’s allegations.
[At 30, emphasis added.]
[52] Admissions that were available to the adjudicators in this case, which all involved the Prince Albert IRS, included a long list of IAP decisions where findings had been made about (1) the knowledge of staff members of sexual activities among students at various locations in the school or on the school grounds, and (2) no reasonable supervision or no reasonable steps being taken to prevent various kinds of sexual activities among students, also at various locations in the school or on school grounds, all within specified periods of time. The locations mentioned include the school grounds, the playground, the showers, specified dormitories and cottages, and specified areas outside certain dormitories or cottages. There are no admissions pertaining to assaults taking place on school buses or similar venues.
[53] As noted above, the initial adjudicator applied these admissions to ground his finding that adult employees had knowledge that abuse of the kind proven was occurring at the IRS at the relevant time, but he did not do so to ground his finding that reasonable steps had been taken to prevent the assault. This was because he did not find these admissions relevant to this issue. I see no basis to conclude that the adjudicator failed to apply the IAP Model in doing so. As the IAP Model expressly states, the admissions must be relevant to a claimant’s allegations.
[54] For all of these reasons, I would dismiss the appeal.
“The Honourable Madam Justice Fisher”
I AGREE:
“The Honourable Madam Justice Newbury”
I AGREE:
“The Honourable Madam Justice Garson”
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