Court of Appeal for Ontario

Date: 2018-10-17

Docket: M49699 (C65955)

Sharpe J.A. (In Chambers)

Parties

Between

Larry Philip Fontaine in his personal capacity and in his capacity as the executor of the estate of Agnes Mary Fontaine, deceased, Michelline Ammaq, Percy Archie, Charles Baxter Sr., Elijah Baxter, Evelyn Baxter, Donald Belcourt, Nora Bernard, John Bosum, Janet Brewster, Rhonda Buffalo, Ernestine Caibaiosai-Gidmark, Michael Carpan, Brenda Cyr, Deanna Cyr, Malcolm Dawson, Ann Dene, Benny Doctor, Lucy Doctor, James Fontaine in his personal capacity and in his capacity as the executor of the Estate of Agnes Mary Fontaine, deceased, Vincent Bradley Fontaine, Dana Eva Marie Francey, Peggy Good, Fred Kelly, Rosemarie Kuptana, Elizabeth Kusiak, Theresa Larocque, Jane McCullum, Cornelius McComber, Veronica Marten, Stanley Thomas Nepetaypo, Flora Northwest, Norman Pauchey, Camble Quatell, Alvin Barney Saulteaux, Christine Semple, Dennis Smokeyday, Kenneth Sparvier, Edward Tapiatic, Helen Winderman and Adrian Yellowknee

Plaintiffs

and

The Attorney General of Canada, The Presbyterian Church in Canada, The General Synod of the Anglican Church of Canada, The United Church of Canada, The Board of Home Missions of the United Church of Canada, The Women's Missionary Society of the Presbyterian Church, The Baptist Church in Canada, Board of Home Missions and Social Services of the Presbyterian Church in Bay, The Canada Impact North Ministries of the Company for the Propagation of the Gospel in New England (also known as The New England Company), The Diocese of Saskatchewan, The Diocese of the Synod of Cariboo, The Foreign Mission of the Presbyterian Church in Canada, The Incorporated Synod of the Diocese of Huron, The Methodist Church of Canada, The Missionary Society of the Anglican Church of Canada, The Missionary Society of the Methodist Church of Canada (also known as the Methodist Missionary Society of Canada), The Incorporated Synod of the Diocese of Algoma, The Synod of the Anglican Church of the Diocese of Quebec, The Synod of the Diocese of Athabasca, The Synod of the Diocese of Brandon, The Anglican Synod of the Diocese of British Columbia, The Synod of the Diocese of Calgary, The Synod of the Diocese of Keewatin, The Synod of the Diocese of Qu'Appelle, The Synod of the Diocese of New Westminster, The Synod of the Diocese of Yukon, The Trustee Board of the Presbyterian Church in Canada, The Board of Home Missions and Social Service of the Presbyterian Church of Canada, The Women's Missionary Society of the United Church of Canada, Sisters of Charity, A Body Corporate also known as Sisters of Charity of St. Vincent De Paul, Halifax, also known as Sisters of Charity Halifax, Roman Catholic Episcopal Corporation of Halifax, Les Sœurs de Notre Dame-Auxiliatrice, Les Sœurs de St. François D'Assise, Institut des Sœurs du Bon Conseil, Les Sœurs de Saint-Joseph de Saint-Hyacinthe, Les Sœurs de Jésus-Marie, Les Sœurs de l'Assomption de la Sainte Vierge, Les Sœurs de L'Assomption de la Saint Vierge de L'Alberta, Les Sœurs de la Charité de St. Hyacinthe, Les Œuvres Oblates de L'Ontario, Les Résidences Oblates du Québec, La Corporation Épiscopale Catholique Romaine de la Baie James (The Roman Catholic Episcopal Corporation of James Bay), The Catholic Diocese of Moosonee, Sœurs Grises de Montréall/Grey Nuns Of Montreal, Sisters of Charity (Grey Nuns) of Alberta, Les Sœurs de la Charité des T.N.O., Hôtel-Dieu de Nicolet, The Grey Nuns of Manitoba Inc.-Les Sœurs Grises du Manitoba Inc., La Corporation Épiscopale Catholique Romaine De La Baie D'Hudson - The Roman Catholic Episcopal Corporation of Hudson's Bay, Missionary Oblates - Grandin Province, Les Oblats de Marie Immaculée du Manitoba, The Archiepiscopal Corporation of Regina, The Sisters of the Presentation, The Sisters of St. Joseph of Sault St. Marie, Sisters of Charity of Ottawa, Oblates of Mary Immaculate -St. Peter's Province, The Sisters of Saint Ann, Sisters of Instruction of the Child Jesus, The Benedictine Sisters of Mt. Angel Oregon, Les Pères Montfortains, The Roman Catholic Bishop of Kamloops Corporation Sole, The Bishop of Victoria, Corporation Sole, The Roman Catholic Bishop of Nelson, Corporation Sole, Order of the Oblates of Mary Immaculate in the Province of British Columbia, The Sisters of Charity of Providence of Western Canada, La Corporation Épiscopale Catholique Romaine de Grouard, Roman Catholic Episcopal Corporation of Keewatin, La Corporation Archiépiscopale Catholique Romaine de St. Boniface, Les Missionnaires Oblates Sisters de St. Boniface-The Missionary Oblates Sisters of St. Boniface, Roman Catholic Archiepiscopal Corporation of Winnipeg, La Corporation Épiscopale Catholique Romaine de Prince Albert, The Roman Catholic Bishop of Thunder Bay, Immaculate Heart Community of Los Angeles CA, Archdiocese of Vancouver - The Roman Catholic Archbishop of Vancouver, Roman Catholic Diocese of Whitehorse, The Catholic Episcopal Corporation of Mackenzie-Fort Smith, The Roman Catholic Episcopal Corporation of Prince Rupert, Episcopal Corporation of Saskatoon, Omi Lacombe Canada Inc. and Mt. Angel Abbey Inc.

Defendants (Responding Parties)

and

Chief Adjudicator Indian Residential Schools Adjudication Secretariat

Respondent (Moving Party)

Proceedings

Proceedings under the Class Proceedings Act, 1992, S.O. 1992 c. 6

Counsel:

Andrew Faith and Sandy Lockhart, for the moving party

Catherine A. Coughlan and Brent Thompson, for the responding party, The Attorney General of Canada

Heard: October 15, 2018

Reasons for Decision

Background

[1] On September 5, 2018, the Eastern Administrative Judge for the Indian Residential School Settlement Agreement ("IRSSA"), on his own motion and without notice to any party, issued a Direction (the "First Direction") prohibiting the Chief Adjudicator for the Independent Assessment Process ("IAP") from continuing his participation in three appeals: 2018 ONSC 5197. One of those appeals was to be argued before the Supreme Court of Canada on October 10, 2018. The Chief Adjudicator filed a Notice of Appeal against the First Direction and moved for a stay pending the hearing of the appeal. I granted that stay on September 12, 2018, in reasons reported at 2018 ONCA 749. Following a case management conference call, I directed that the appeal against the First Direction would be heard on November 23, 2018.

[2] On September 27, 2018, the Eastern Administrative Judge issued a Second Direction, again on his own motion and without notice to any party: 2018 ONSC 5706. The Second Direction rescinds the First Direction and directs "a different path that will provide for a fuller opportunity to canvass this Supervising Court's underlying concerns" and "provide the Chief Adjudicator with a full hearing with due process, as he submits is his due."

[3] The Second Direction appoints an amicus curiae and directs him to bring a Request for Direction (RFD) to be heard at a hearing to be held in Toronto during November 2018 before two other supervising judges, one from the Supreme Court of Yukon and the second from the Superior Court of Québec. The Second Direction specifies five issues for the RFD to address and lists the materials to be considered. The issues to be addressed reflect similar concerns to those that motivated the First Direction, namely, whether the Chief Adjudicator has taken "partisan positions before courts" without proper instructions from Supervising Courts or advice from the IAP Oversight Committee, and failed to properly report his activities to the Supervising Courts. The issue of whether the Chief Adjudicator complied with a specific order issued by the Supervising Judge for British Columbia is included in the list of matters to be considered.

[4] The Chief Adjudicator filed a Notice of Appeal against the Second Direction on October 5, 2018 and now moves for a stay pending the determination of that appeal. The Chief Adjudicator also asks that the second appeal be heard at the same time as the appeal from the First Direction.

[5] I am advised by counsel that amicus has prepared the RFD and that December 19, 2018 has been set as the date for the hearing of the RFD. I note as well that of the three appeals that gave rise to the First Direction, the appeal before the Supreme Court of Canada has already been heard and the two appeals before the British Columbia Court of Appeal are to be heard on November 30 and December 13-14, 2018, before the date of the RFD hearing.

[6] For the following reasons, I conclude that the interests of justice favour granting a stay and ordering this appeal to be heard with the appeal from the First Direction.

Jurisdiction

[7] I am satisfied that the Second Direction is a final order from which an appeal lies to this court. If the Second Direction rescinds the First Direction, it has the effect of ending the appeal from the First Direction, as the Chief Adjudicator cannot appeal from an order that is no longer in effect. The Second Direction thus removes some of the issues raised in that appeal to another tribunal outside the jurisdiction of the Ontario courts. An order that finally determines the forum for the dispute is a final order for the purposes of appeal, even though the substantive issues remain to be determined by the court or tribunal held to have jurisdiction: Manos Foods International Inc. v. Coca-Cola Ltd. (1999), 180 D.L.R. (4th) 309 (Ont. C.A.), at para. 4.

Serious Issue to be Tried

[8] I am satisfied that the appeal from the Second Direction raises several arguable issues.

[9] As the order was made without notice and without a hearing, it is arguable that it was made in violation of the principles of procedural fairness.

[10] It is, so far as I am aware, unprecedented for a judge to purport to rescind an order after it has been made, appealed and stayed, thereby effectively ending the appeal and replacing it with another process. Counsel for the responding party, the Attorney General of Canada, was unable to identify any such precedent. It is arguable that the Second Direction was issued in violation of the functus officio principle. As the Supreme Court of Canada stated in Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 79, the purpose of this principle is "to allow finality of judgments from courts which are subject to appeal." The Supreme Court recognized that allowing the court appealed from to vary its orders would allow that court to "assume the function of an appellate court and deny litigants a stable basis from which to launch an appeal": Doucet-Boudreau, at para. 79.

[11] It is also arguable that Second Direction amounts to an attempt to short-circuit the appeal to this court from the First Direction. The Second Direction declares the appeal to this court "largely moot", rescinds the First Direction thereby removing the basis for the appeal, and purports to confer jurisdiction on two extra-provincial judges to decide some of the issues raised by the appeal. In addition, the terms of the RFD that the Eastern Administrative Judge directed the amicus curiae to bring appear to assume, if not decide, some of the issues raised before this court in the appeal from the First Direction. Issues 1 and 2 ask whether the Chief Adjudicator has taken "partisan positions" in litigation without having "obtained instructions from the Supervising Courts". This arguably assumes that the Chief Adjudicator is required to obtain instructions or permission from a Supervising Judge as to positions taken before the courts, yet that very assumption is a contested issue that is raised in the appeal from the First Direction.

[12] In my view, it is arguable that the Court Administration Protocol which governs the RFD process does not contemplate referring issues such as those the Eastern Administrative Judge identified to a panel of two judges from different provinces. As para. 5(c) of the Protocol provides, "Where the issue(s) will affect all jurisdictions, the hearing may be directed to any court supervising the Agreement" (emphasis added). The language of "any court" is singular, not plural. The issue of the Chief Adjudicator's participation on court proceedings is one that affects all jurisdictions. It does not fall into the category of decisions resulting in an order "that would constitute an amendment to the Agreement" that may be referred to more than one supervising court under para. 5(d). In any event, it is arguable that a panel of two judges from different provincial and territorial superior courts should be avoided where the issue is hotly contested, as it is in the present case. What happens if the two judges disagree? Whether or not they agree, are there two appeals, one to each provincial or territorial court of appeal? If not, how is it to be determined to which court the appeal lies? What happens if there are two appeals leading to conflicting results?

Irreparable Harm

[13] The Attorney General of Canada argues that the Chief Adjudicator will not suffer irreparable harm if the RFD process ordered by the Second Direction is allowed to unfold at that same time as both appeals from both Directions make their way to this court.

[14] I disagree.

[15] In my view, irreparable harm could flow from allowing two parallel proceedings to unfold at the same time. Quite apart from the added cost of duplicative proceedings, there is a clear risk of inconsistent results. That would cause confusion from which the Chief Adjudicator and the IAP would suffer serious harm. Conflicting results would also cause harm by bringing the administration of justice into disrepute. Both are forms of irreparable harm sufficient to warrant the grant of a stay.

Balance of Convenience

[16] In my view, the balance of convenience favours granting a stay. A stay would allow these proceedings to unfold in an orderly manner and avoid duplicative proceedings that could lead to inconsistent results. The propriety of the RFD process depends upon the correctness of the Second Direction. In my view, that issue should be resolved before the RFD process unfolds. If the Attorney General prevails, the RFD process can proceed as directed by the Eastern Administrative Judge, albeit with some delay. As both the appeals to the British Columbia Court of Appeal will be heard before the date set for the RFD, any such delay will not result in prejudice.

Disposition

[17] Accordingly, I stay the Second Direction nunc pro tunc from the date it was issued and direct that the appeal in this matter be heard together with the appeal from the First Direction.

Robert J. Sharpe J.A.