Fay K. Brunning

This decision addresses the issue of costs following the release of the Canada RFD Decision in the Fontaine litigation.

The court considered whether the unsuccessful Respondents should be awarded costs, despite not prevailing on the motion.

The court reviewed the parties’ written submissions and the relevant legal principles, ultimately concluding that there were no exceptional circumstances justifying a costs award to the unsuccessful party.

The court declined to order costs of the hearing.

The Attorney General of Canada brought a Request for Direction seeking to summarily dismiss or strike a proceeding known as "Metatawabin RFD #2," which was filed by several St. Anne's Indian Residential School claimants.

The claimants alleged that Canada breached prior court orders by failing to disclose updated Person of Interest reports to individuals whose claims had already been concluded.

The Ontario Superior Court of Justice summarily dismissed and struck the claimants' request, finding that Canada complied with its obligations under the prior orders and was not required to disclose the reports for concluded claims.

Additionally, the court ruled that the claimants' request was time-barred and that certain requested remedies were moot or outside the court's jurisdiction.

The requestors brought a motion to summon the former Chief Adjudicator of the Indian Residential Schools Adjudication Secretariat to provide evidence at an upcoming hearing of a Request for Directions (RFD) brought by Canada.

Canada's RFD sought to strike the requestors' own RFD regarding compliance with ancillary orders.

The court dismissed the motion, finding that the former Chief Adjudicator's evidence regarding his conduct or failure to bring an RFD was not relevant to the narrow interpretation and procedural issues raised in Canada's RFD.

The requestors brought a motion seeking answers to 142 questions refused by Canada during an out-of-court cross-examination of a government affiant.

The cross-examination arose in the context of Canada's request for directions to strike the requestors' motion regarding compliance with the Indian Residential Schools Settlement Agreement.

The court largely upheld Canada's refusals on the bases of relevance, proportionality, privilege, and speculation, but ordered Canada to answer six specific questions of fact.

The moving parties sought to review an order dismissing their motion to extend time to perfect an appeal of an Independent Review Order concerning St. Anne's Indian Residential School claims.

The Independent Review Order had appointed an independent special advisor to review certain concluded claims.

After the motion was heard, the independent review was completed, and its report approved.

The court found the appeal moot because the factual substratum had disappeared, and there were no grounds to exercise discretion to hear a moot appeal.

Consequently, the review motion was dismissed, and no extension of time to appeal was granted.

The moving parties, former residents of St. Anne's Indian Residential School, appealed an order appointing an Independent Special Advisor (ISA) to review Independent Assessment Process (IAP) claims and sought an interim preservation order for documents.

They argued the ISA appointment undercut ongoing proceedings and was made by a biased judge.

The court dismissed both motions, finding no serious issue on appeal due to the probable interlocutory nature of the order, no irreparable harm to the moving parties, and the balance of convenience not favoring a stay.

The preservation order was also denied due to ongoing related proceedings and Canada's undertaking to preserve documents.

The Attorney General of Canada brought a Request for Directions to appoint an Independent Special Advisor to review certain Independent Assessment Process claims by former students of St. Anne's Indian Residential School.

The review was prompted by concerns that some claims were resolved before additional document disclosure was made available.

The court agreed that an independent review was necessary but modified Canada's proposed process to ensure claimants' interests were represented by an amicus and to remove arbitrary restrictions on the review.

The appellants, claimants who suffered abuse at St. Anne's Indian Residential School in Ontario, filed a Request for Directions (RFD) regarding the respondent's disclosure obligations under the Indian Residential School Settlement Agreement (IRSSA).

The Eastern Administrative Judge (the Ontario Supervising Judge) recused himself and directed that the RFD be heard by the British Columbia Supervising Judge, relying on the Court Administration Protocol (CAP).

The appellants appealed, arguing the RFD must be heard in Ontario.

The Court of Appeal allowed the appeal, finding that the CAP contains mandatory language requiring RFDs involving relief for a particular class to be directed to the supervising court with jurisdiction over that class.

As the appellants are members of the Ontario class, the Ontario Superior Court of Justice has jurisdiction.

The matter was remitted to the Chief Justice of the Ontario Superior Court of Justice to assign a different judge.

The moving parties, survivors of the St. Anne's Indian Residential School, appealed an order directing their Request for Directions to be heard by a judge of the British Columbia Supreme Court rather than the Ontario Superior Court of Justice.

They brought a motion for a stay of the transfer order pending appeal and to expedite the appeal.

The Court of Appeal determined the transfer order was final for the purposes of appeal, applied the RJR-MacDonald test rather than the strong cause approach, and granted the stay, finding a serious question of interpretation regarding the Court Administration Protocol, potential for irreparable harm from inconsistent results, and that the balance of convenience favoured a stay.

This is a costs endorsement on appeal from a Superior Court judgment dismissing requests for directions by Indian Residential School claimants pertaining to St. Anne's Indian Residential School.

The appellants sought costs on a partial indemnity scale, arguing the unique circumstances and public interest nature of the case warranted an award.

Independent Counsel also sought costs.

The Court of Appeal upheld the lower court's dismissal of the requests without costs, finding that the predominantly procedural nature of the issues on appeal did not warrant a costs award in favour of the appellants or Independent Counsel.

Appeals arising from the implementation of the Indian Residential Schools Settlement Agreement (IRSSA).

The appellants sought declarations that Canada breached its disclosure obligations under the IRSSA by refusing to produce transcripts of examinations for discovery from civil actions (Cochrane Transcripts) and sought broad relief for all former students affected by alleged breaches.

The administrative judge dismissed the requests for directions.

The Court of Appeal upheld the dismissal, finding that Canada did not breach its disclosure obligations by refusing to produce the Cochrane Transcripts, that the deemed undertaking rule applied to protect the privacy of examinees, and that the court lacked jurisdiction to grant the broad relief sought.

The Requestors, former students of St. Anne's Indian Residential School, brought Requests for Directions (RFDs) under the Indian Residential Schools Settlement Agreement (IRSSA).

They sought directions regarding the procedure for an upcoming hearing to determine their standing.

The court directed that the Requestors must establish standing as a preliminary matter, that Canada is not required to file evidence or respond to a Request to Admit, and that costs immunity for the hearing is denied, with costs reserved to the court's discretion.

The Requestor (IAP Claimant H-15019) sought an urgent ex parte order for the production of discovery transcripts from previous civil proceedings related to St. Anne's Indian Residential School.

The transcripts were requested for use in a re-hearing of the claimant's Independent Assessment Process (IAP) claim, to ensure procedural fairness for witnesses and allow them to adopt prior sworn testimony.

The court, acting as a supervising judge for the Indian Residential Schools Settlement Agreement (IRSSA), dismissed the request as premature, reiterating that IAP processes had not been exhausted and that judicial intervention in the IAP is warranted only in exceptional circumstances.

The court also affirmed its previous finding that Canada had not breached its disclosure obligations by refusing to produce these specific transcripts, citing settlement privilege and undertakings of confidentiality.

Two Requests for Direction (RFDs) were brought regarding the disclosure of documents from prior civil and criminal proceedings concerning St. Anne's Indian Residential School.

In the first RFD, an IAP claimant alleged Canada breached its disclosure obligations by withholding discovery transcripts.

The court dismissed this RFD, finding the transcripts were protected by settlement privilege and the deemed undertaking rule.

In the second RFD, former students and an association sought extraordinary relief, including investigations into the conduct of counsel and the reopening of claims.

The court dismissed the second RFD, holding that the requestors lacked standing and that the court lacked jurisdiction under the Indian Residential Schools Settlement Agreement to grant the requested relief, as complaints about lawyer conduct fall outside the court's administrative role.

The Requestor, an Indian Residential Schools Settlement Agreement (IRSSA) claimant, sought directions regarding Canada's alleged non-compliance with a prior disclosure order concerning documents related to St. Anne's Indian Residential School.

Specifically, the Requestor alleged Canada failed to produce examination for discovery transcripts from civil proceedings.

The court directed the parties to provide written submissions to determine whether Canada had complied with the January 14, 2014 order, finding that no further affidavit evidence was required at this stage given the narrow factual dispute.

The applicants brought a Request for Directions under the Indian Residential Schools Settlement Agreement and sought a preliminary order for immunity from adverse costs awards.

On consent of the parties, the court granted the motion for costs immunity in part, subject to terms including the scheduling of a standing and jurisdiction motion and the adjournment of other related matters.

This motion concerned preliminary relief for a Request for Directions (RFD) brought by a claimant under the Independent Assessment Process (IAP) of the Indian Residential Schools Settlement Agreement (IRSSA), alleging non-disclosure of documents for St. Anne's Indian Residential School claims.

The claimant sought a re-hearing of their IAP application, directives on evidence, damages, and various orders regarding counsel and review processes.

The court granted a confidentiality order and publication ban for the record, but adjourned all other preliminary relief requests and the RFD itself as premature, pending the completion of the IAP re-review process.

Following a successful Rule 21 motion striking claims against an individual defendant in a wrongful dismissal action, the court addressed costs after the plaintiff requested an opportunity to make submissions.

The defendant sought substantial indemnity costs, relying in part on an offer to settle proposing dismissal of the claim without costs.

The plaintiff argued the defendant was not fully successful because leave to amend had been granted and contended that efforts to resolve the motion and proposed amendments justified either no costs or costs in the cause.

The court held that the defendant was the successful party on the motion and that the usual rule that costs follow the event applied.

The previously ordered costs of $12,500 payable by the plaintiff to the defendant were confirmed as fair and reasonable.

The defendant, Dr. Lalonde, brought a motion to strike the plaintiff's statement of claim against him for disclosing no reasonable cause of action and for being frivolous, vexatious, or an abuse of process.

The plaintiff, a former CFO of the co-defendant SOGC, alleged that Lalonde committed intentional torts including deceit, intentional interference with contractual relations, inducing breach of contract, and sexual harassment.

The court found that the pleadings failed to establish the essential elements of the intentional torts, particularly the requisite intent and reliance.

The court also held that there is no freestanding tort of harassment.

The claim against Lalonde was struck, but the plaintiff was granted leave to amend.