COURT OF APPEAL FOR ONTARIO DATE: 20210510 DOCKET: M52372 (C69253) Paciocco J.A. (Motion Judge)

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 Soeurs de Notre Dame-Auxiliatrice, Les Soeurs de St. Francois d’Assise, Institut des Soeurs du Bon Conseil, Les Soeurs de Saint-Joseph de Saint-Hyancithe, Les Soeurs de Jésus-Marie, Les Soeurs de l’Assomption de la Sainte Vierge, Les Soeurs de l’Assomption de la Saint Vierge de l’Alberta, Les Soeurs de la Charité de St.-Hyacinthe, Les Oeuvres Oblates de l’Ontario, Les Résidences Oblates du Québec, La Corporation Episcopale Catholique Romaine de la Baie James (The Roman Catholic Episcopal Corporation of James Bay), The Catholic Diocese of Moosonee, Les Soeurs Grises de Montréal/Grey Nuns of Montreal, Sisters of Charity (Grey Nuns) of Alberta, Les Soeurs de la Charité des T.N.O., Hotel-Dieu de Nicolet, The Grey Nuns of Manitoba Inc.-Les Soeurs Grises du Manitoba Inc., La Corporation Episcopale 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 Episcopale Catholique Romaine de Grouard, Roman Catholic Episcopal Corporation of Keewatin, La Corporation Archiepiscopale Catholique Romaine de St. Boniface, Les Missionnaires Oblates Soeurs de St. Boniface-The Missionary Oblates Sisters of St. Boniface, Roman Catholic Archiepiscopal Corporation of Winnipeg, La Corporation Episcopale 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 Episcopale 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 (Respondents/ Responding Party )

In the Matter of the Request for Directions by Dr. Edmund Metatawabin and by IAP Claimants T-00185, S-20774 and S-16753 Requestors (Appellants/Moving Parties)

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

Michael Swinwood and Fay K. Brunning, for the moving parties Catherine A. Coughlan, Brent Thompson and Eve Coppinger, for the responding party

Heard: April 22, 2021 by video conference

ENDORSEMENT

OVERVIEW

[1] The motions before me relate to claims under the Independent Assessment Process (the “IAP”) made against the Attorney General of Canada (“Canada”), the responding party, by former residents of St. Anne’s Indian Residential School (“St. Anne’s IRS”) pursuant to the Indian Residential School Settlement Agreement (the “IRSSA”).

[2] The moving parties include three former residents of St. Anne’s IRS who made claims under the IAP. They contend that at the time their matters were resolved, Canada had failed to fulfill its disclosure obligations, and still has not done so. In a request for directions (“RFD”) initiated on May 12, 2020 (“Metatawabin RFD #2”), the moving parties seek a declaration that Canada breached previous disclosure orders made on January 14, 2014 and June 23, 2015 (the “Disclosure Orders”). In Metatawabin RFD #2, the moving parties also seek an order compelling Canada to revise documentation used in their IAP claims within 30 days, so the claimants can determine whether they should seek to re-open those claims. Finally, Metatawabin RFD #2 seeks a preservation order preventing Canada from destroying documents that pertain to the St. Anne’s IRS IAP claims.

[3] Dr. Edmund Metatawabin is also a moving party. Dr. Metatawabin is a former St. Anne’s IRS resident and a distinguished Indigenous leader who is actively involved in IRSSA matters relating to St. Anne’s IRS. In this matter he has offered to represent the interests of St. Anne’s IRS abuse survivors whose claims may have been adversely affected by allegedly unfair disclosure. Many of these survivors are unknown to the moving parties because their identities are confidential under the IRSSA.

[4] The moving parties are pursuing their claims in Metatawabin RFD #2 before Glustein J. under the IRSSA’s Court Administration Protocol (the “CAP”). Ordinarily, Perell J., the Ontario Supervising Judge for IRSSA matters, would be hearing Metatawabin RFD #2. However, Perell J. recused himself from Metatawabin RFD #2 due to reasonable apprehension of bias concerns arising out of a related proceeding.

[5] On March 18, 2021, Canada filed an RFD requesting that an Independent Special Advisor (“ISA”) be appointed to conduct an independent review of certain St. Anne’s IRS IAP claims. On April 20, 2021, Perell J. granted the request. The moving parties seek to stay that order (the “Order Under Appeal”) pending appeal. The moving parties contend that the Order Under Appeal improperly undercuts the Metatawabin RFD #2 proceedings and provides for a process not contemplated in the IRSSA. Moreover, the moving parties say that the Order Under Appeal was secured in an abusive manner by Canada in an unfair, secret proceeding that did not comply with the CAP, and was issued by a judge who should have recused himself in light of his earlier recusal from Metatawabin RFD #2.

[6] The moving parties also ask for an interim preservation order covering all documents possessed by government officials relating to St. Anne’s IRS IAP claimants.

[7] Of course, it is not my role as a motion judge to resolve the underlying dispute or to comment on the fairness or wisdom of decisions that have been taken below. My sole function is to determine whether a stay pending appeal is in the interests of justice based on established legal standards, and to determine whether I should exercise my discretion to issue the requested preservation order.

[8] For reasons that follow, I am not persuaded it is in the interests of justice to stay the Order Under Appeal. Nor, in my view, do the interests of justice call for a preservation order. I would therefore dismiss the motions before me.

BACKGROUND AND MATERIAL FACTS

The IRSSA and the IAP

[9] The IRSSA is the settlement agreement for several class actions and civil claims relating to sexual and physical abuse of former students at Canadian residential schools. In exchange for forfeiting their right to sue, potential claimants have the option of participating in the IRSSA’s IAP.

[10] Of importance, Canada has responsibilities relating to the creation of the evidentiary record to be used in assessing IAP claims. Canada is required to disclose relevant documents in its possession and control, and it is obliged to use this information to produce a narrative report (“Narrative”) relating to each residential school, as well as person of interest reports (“POI Reports”) for each claimant for use in the IAP. These documents can play an instrumental role in determining the success of IAP claims.

[11] The CAP governs the process for RFDs brought under the IRSSA. The CAP is administered by nine Supervising Judges; one from each of the affected provincial and territorial jurisdictions. Pursuant to the terms of the CAP, two Administrative Judges are selected from among the Supervising Judges. Perell J., the Ontario Supervising Judge, is the current Eastern Administrative Judge (“EAJ”), and his order is the Order Under Appeal. I shall refer to him as the EAJ in this endorsement. The current Western Administrative Judge (“WAJ”) is the British Columbia Supervising Judge.

[12] Any party, counsel, or other entity with standing may bring an RFD to the Administrative Judges relating to “all matters that require court orders, directions or consideration during the course of the administration” of the IRSSA. After receiving an RFD, the EAJ and WAJ must determine whether a case conference or a hearing is required. Case conferences may be conducted by one or both Administrative Judges. If a hearing is required, the Administrative Judges assign the hearing of the RFD to the Supervising Judge from the court with jurisdiction over the matter.

[13] Although all IAP claims have been completed, and the IAP ceased operations on March 31, 2021, supervisory courts may review and re-open claims where “exceptional circumstances” are present: J.W. v. Canada (Attorney General), 2019 SCC 19, [2019] 2 S.C.R. 224, at para. 27. The moving parties take the position that if Canada did breach the Disclosure Orders, dispositions and settlement agreements involving St. Anne’s IRS IAP claimants may need to be re-opened, and punitive and aggravated damages may be appropriate.

The disclosure issues in Metatawabin RFD #2

[14] The first Disclosure Order at issue in Metatawabin RFD #2 was made by the EAJ on January 14, 2014. In it he ordered the production of documents relating to an extensive criminal investigation conducted by the Ontario Provincial Police into claims of abuse at St. Anne’s IRS. Canada was also ordered to comply with its disclosure obligations relating to other relevant, non-privileged documents, and to revise the Narrative and POI Reports for St. Anne’s IRS. This Order led to the disclosure of more than 12,000 additional documents and to substantial revisions to the Narrative and to some POI Reports.

[15] The second Disclosure Order at issue in Metatawabin RFD #2, dated June 23, 2015, was also made by the EAJ. That Order was obtained by approximately 50 St. Anne’s IRS IAP claimants who were dissatisfied with Canada’s compliance with the January 14, 2014 Disclosure Order. The June 23, 2015 Disclosure Order directed Canada to revise identified reports to include specified categories of information, and to make further particularized disclosure.

[16] The parties disagree as to whether Canada has fully complied with the Disclosure Orders; the moving parties contend that Canada has not. One of their core complaints is that Canada failed to revise disclosure relating to claims that had already been resolved before the Disclosure Orders were issued, and that this resulted in unfair settlements affecting an estimated 166+ claimants.

[17] Between 2015 and 2018, numerous RFDs were brought before the EAJ seeking further enforcement of the Disclosure Orders. The moving parties contend these RFDs were not heard on their merits because the EAJ “always accepted Canada’s preliminary objections”. They emphasize that courts have a duty to ensure all IAP claimants receive the benefits they bargained for when they entered into the IRSSA and forfeited their right to sue, but argue that the EAJ has breached this obligation by failing to enforce these orders and to re-open claims for fair adjudication.

The EAJ’s recusal from Metatawabin RFD #2

[18] Ms. Brunning, in her capacity as counsel participating in related proceedings, made critical comments about the EAJ’s response to attempts to enforce the Disclosure Orders. On January 15, 2018, the EAJ issued an order in which he criticized Ms. Brunning’s conduct and ordered costs personally against her: 2018 ONSC 357. In February 2020, the Divisional Court set these orders aside, finding that the EAJ should have recused himself from making them: 2020 ONSC 1003 (Div. Ct.).

[19] On May 12, 2020, the moving parties, with Ms. Brunning as one of their counsel, filed Metatawabin RFD #2, once again seeking the enforcement of the Disclosure Orders, as well as additional incidental relief for individual claimants.

[20] On June 5, 2020, the EAJ recused himself as Supervising Judge in Metatawabin RFD #2: 2020 ONSC 3497. By joint direction, the EAJ appointed the WAJ as Supervising Judge to hear Metatawabin RFD #2.

Rouleau J.A.’s order dated November 2, 2020

[21] On November 2, 2020, this court set aside the EAJ’s order appointing the WAJ as Supervising Judge for Metatawabin RFD #2. Rouleau J.A. held that para. 5(a) of the CAP “required that RFDs involving strictly Ontario class members and Ontario institutions were to be directed to the Ontario Superior Court of Justice for hearing”: 2020 ONCA 688, at para. 42. As a result, Rouleau J.A. set aside the EAJ’s order assigning Metatawabin RFD #2 to the WAJ and remitted the matter to the Ontario Superior Court of Justice for hearing. Further, Rouleau J.A. directed, at para. 66 of his reasons, that “[a]s the Ontario Supervising Judge has recused himself, it is up to the Chief Justice of the Ontario Superior Court of Justice to assign a different Supervising Judge”.

Glustein J.’s appointment and management of Metatawabin RFD #2

[22] On November 5, 2020, in a letter with the reference line “RE: Fontaine v. Canada (Attorney-General)”, the Chief Justice of the Ontario Superior Court of Justice appointed Glustein J. “to act as Supervising Judge in this matter.” Metatawabin RFD #2 is now proceeding before Glustein J. Canada has filed a motion to dismiss Metatawabin RFD #2, alleging abuse of process. Glustein J. has held multiple case conferences attended by Canada and the moving parties.

[23] According to the moving parties, in one such conference on March 12, 2021, Glustein J. indicated he could deal with whether there was a breach of the Disclosure Orders without having to resolve certain outstanding factual issues relating to claimant representation. The moving parties say Glustein J. also advised Canada not to “play a game of ‘got you’ with the documents”. As I understand the moving parties, they interpret the former comment as an indication that Glustein J. is poised to decide the disclosure issue on its merits, and the latter as a caution to Canada not to take a narrow view of its obligation to preserve documents, pending the decision on the merits in Metatawabin RFD #2.

Canada’s RFD to appoint an ISA

[24] On March 18, 2021, Canada filed an RFD requesting the appointment of an ISA to conduct an independent review of IAP claims brought by former students at St. Anne’s IRS. In this RFD, Canada submitted that, despite a success rate of 96.4% for St. Anne’s IRS IAP claimants, extensive negative publicity arising from the heavily litigated disclosure dispute is undermining public confidence in the integrity of the IRSSA and the IAP.

[25] To address this, Canada requested an order that would allow for an independent investigation of certain St. Anne’s IRS IAP claims to determine in each case: (1) whether the 2014 disclosure was available in each claim’s adjudication, (2) if not, whether there was a conscious decision by counsel to proceed without disclosure, and (3) if not, whether the disclosure would have been reasonably likely to have impacted the amount of compensation awarded. The order Canada sought had provisions designed to maintain confidentiality and respect privacy and solicitor-client privilege.

The March 22, 2021 Assignment Order

[26] On March 22, 2021, the EAJ and WAJ issued a joint direction assigning the EAJ as the Supervising Judge for Canada’s RFD (the “Assignment Order”). The Assignment Order provided for the RFD to be heard in writing. It also directed court counsel to invite written submissions from, inter alia, the requestors in Metatawabin RFD #2 (the moving parties) by April 7, 2021.

[27] On April 1, 2021 the moving parties filed a notice of appeal of the Assignment Order, seeking the dismissal of that Order and the confirmation of Glustein J. as the Ontario Supervising Judge “for all RFD matters pertaining to St. Anne’s class members” (“Notice of Appeal #1”).

[28] The moving parties brought a concurrent motion to stay the Assignment Order pending appeal (“Motion #1”). They also sought a “Preservation Order” requiring Canada to preserve all documents pertaining to St. Anne’s IRS IAP claims. In addition, Motion #1 requested an order expediting the appeal, “perhaps to be heard by the same panel that issued the November 2, 2020 Reasons and Order.” This is the motion for which notice was given, and it was scheduled before me for an April 22, 2021 hearing.

The Order Under Appeal

[29] On April 20, 2021, two days before Motion #1 was scheduled to be heard, the EAJ issued the Order Under Appeal, after having received written submissions from the Assembly of First Nations, as well as the IRSSA’s Independent Counsel and the Chair of the National Administration Committee. The moving parties had also filed written submissions, under protest.

[30] In the Order Under Appeal, the EAJ identified Canada’s RFD request as urgent, given that the IRSSA was “near completion and serious allegations have been made about the integrity of [the IAP] and about whether the claims of certain Claimants who attended [St. Anne’s IRS] were administered in accordance with the provisions of the IRSSA.” He noted that the “festering grievance [regarding the Disclosure Orders] risks undermining public confidence in the integrity of the IAP with respect to St. Anne’s claims.”

[31] The Order Under Appeal modified the terms of Canada’s draft order to accommodate certain objections made before the EAJ. The EAJ appointed the Hon. Ian Pitfield as ISA to conduct the “St. Anne’s Review”. In doing so, the EAJ relied on his authority to appoint a referee pursuant to r. 54 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, “mutatis mutandis”. Upon completion of the St. Anne’s Review, the EAJ ordered the ISA to deliver a sealed report of his findings to the court and Canada, but directed that Canada would not participate in the process except to facilitate the ISA’s access to relevant records. At para. 10, the Order Under Appeal set the terms of the St. Anne’s Review as follows:

In the report, the ISA shall make an independent determination for each IAP Claimant whose IAP claim was resolved (whether by adjudication, settlement, negotiation, or withdrawal) before additional disclosure was made available pursuant to the [Disclosure Orders] and the ISA shall report to the court the answers to the following questions:

i. Were the 2014/2015 disclosure documents available for the claim’s adjudication?

ii. If not, could the 2014/2015 disclosure and use of the documents for the IAP have materially affected the amount of compensation paid on the claim? and,

iii. If the disclosure and use of the documents could have materially affected the amount of the compensation, what additional compensation should have been paid in accordance with the IRSSA? [Emphasis added.]

[32] On April 22, 2021, the day of the motion hearing before me, the moving parties filed a notice of appeal of the Order Under Appeal (“Notice of Appeal #2”). In their Notice of Appeal #2, the moving parties seek to have the Order Under Appeal set aside, and reiterate their request that Glustein J. be confirmed as the Ontario Supervising Judge “to determine all legal matters pertaining to the 166+ St. Anne’s IAP claimants whose rights are being determined in Metatawabin RFD #2”.

The moving parties’ grounds of appeal

[33] The grounds of appeal are set out at para. 20 of Notice of Appeal #2, but they are suffused with factual claims and argument in a repetitive list of points and subpoints. My understanding of the grounds of appeal being advanced by the moving parties can fairly be summarized as follows:

i. The EAJ erred by not recusing himself from this matter because of reasonable apprehension of bias;

ii. The EAJ erred by adjudicating Canada’s RFD because Glustein J. was the Ontario Supervising Judge with sole authority to hear all St. Anne’s IRS IAP matters;

iii. The EAJ breached rules of natural justice, as the Order Under Appeal was made without a public hearing, without evidence, and without the knowledge, input, and representation of the St. Anne’s IRS IAP claimants whose rights are affected;

iv. It was an abuse of process for Canada to bring the RFD that led to the Order Under Appeal; and

v. The Order Under Appeal is in breach of the CAP under the IRSSA.

[34] On April 21, 2021, the moving parties filed a “Supplementary Notice of Motion” as a “companion” to Motion #1 (“Motion #2”). In Motion #2, the moving parties seek an order staying the Order Under Appeal pending their appeal.

THE ISSUES

[35] Canada has been pragmatic in allowing the matters before me to move forward. They took no objection to the late service of Motion #2, nor to the fact that Motion #2 was being heard prior to Notice of Appeal #2 having been officially filed.

[36] I will therefore consider the relief requested under Motion #1 and Motion #2, subject to two exceptions. First, I will not consider the request made in Motion #1 to stay the Assignment Order. During the oral hearing before me, the moving parties conceded that this request is now moot. Second, in Motion #1 the moving parties asked for an order expediting the appeal. No submissions were made in support of that request during the hearing, so I will not consider it here.

[37] There are therefore two issues before me:

(a) Should the Order Under Appeal, dated April 20, 2021, be stayed pending appeal?

(b) Should a preservation order be issued?

ANALYSIS

A. THE ORDER UNDER APPEAL SHOULD NOT BE STAYED

[38] The overarching consideration on a motion for a stay pending appeal is whether a stay is in the interests of justice: BTR Global Opportunity Trading Ltd. v. RBC Dexia Investor Services Trust, 2011 ONCA 620, 283 O.A.C. 321, at para. 16; 2257573 Ontario Inc. v. Furney, 2020 ONCA 742, at para. 20. This determination is informed by the three factors described in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at p. 334:

(1) A preliminary assessment must be made of the merits of the case to ensure there is a serious question to be determined on the appeal;

(2) It must be determined whether the moving party would suffer irreparable harm if the stay were refused; and

(3) An assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the stay pending a decision on the merits.

[39] As Laskin J.A. noted in Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674, at p. 677, these three criteria are not “watertight compartments” and the “strength of one may compensate for the weakness of another.”

[40] I have undertaken this assessment. As I will explain, I am not satisfied that it is in the interests of justice to stay the Order Under Appeal.

(1) A Serious Issue to be Determined on Appeal

[41] I recognize that the serious issue threshold is low and will be satisfied if an appeal is neither frivolous nor vexatious: Furney, at para. 22. However, my preliminary assessment is that the grounds of appeal raised in respect of the Order Under Appeal are likely frivolous for jurisdictional reasons. I say this based on my preliminary view that the appeal probably should have been brought before the Divisional Court. This militates against the seriousness of the issues to be determined, as the absence of jurisdiction would mean the appeal is “devoid of merit” and therefore frivolous: Heidari v. Naghshbandi, 2020 ONCA 757, 153 O.R. (3d) 756, at para. 10; Henderson v. Henderson, 2014 ONCA 571, 324 O.A.C. 138, at para. 8.

The potential jurisdictional problem

[42] Pursuant to s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”), an appeal lies to this court from “a final order” of the Superior Court of Justice. Speaking generally, if an order is interlocutory, rather than final, this court lacks jurisdiction to hear an appeal from that order.

[43] As Sharpe J.A. observed in Fontaine v. Canada (Attorney General), 2018 ONCA 749, at para. 5, a single judge of this court has “no final authority to determine the issue of jurisdiction”. However, Sharpe J.A. went on to explain that “no stay should be granted in a case over which this court lacks jurisdiction”, so if a jurisdictional issue arises on a stay motion it should be considered. Likewise, in Fontaine v. Canada (Attorney General) (“Fontaine Stay #2”), Simmons J.A. held, at para. 14, that a single judge on a stay motion should assess whether the order under appeal is “interlocutory, or even probably interlocutory” since such a finding would “militate against granting the requested stay”: see also, Belton v. Spencer, 2020 ONCA 623, 58 C.P.C. (8th) 16, at paras. 41 and 50.

[44] Based on my preliminary assessment below, the Order Under Appeal is probably interlocutory. As such, I conclude that the “serious question” factor militates against granting the requested stay.

Jurisdiction probably does not arise from the recusal appeal

[45] The moving parties rest their claim that the Order Under Appeal is a final order primarily on their position that the EAJ’s failure to recuse himself is a final determination of a substantive issue. In support of this submission, they seek to draw an analogy to their successful appeal of the EAJ’s order of June 5, 2020 in which the EAJ purported to assign Metatawabin RFD #2 to the WAJ in British Columbia. After rejecting Canada’s submission that this order was interlocutory, Simmons J.A. issued a stay pending appeal of that order and this court ultimately heard the appeal. Simmons J.A. acknowledged that it was not her role as a single judge of this court to determine whether the court had jurisdiction to entertain the appeal, but reasoned that the June 5, 2020 order was final because it “finally determines a substantive matter – the [moving parties’] entitlement to have [Metatawabin RFD #2] heard in the forum they say is prescribed by the CAP”: Fontaine Stay #2, at para. 16.

[46] In my view, the moving parties’ analogy to Fontaine Stay #2 is inapt. A panel of this court has already determined, in related proceedings, that a judge’s refusal to recuse themselves is an interlocutory matter: Brunning v. Fontaine, 2019 ONCA 98, 144 O.R. (3d) 410, at paras. 6-11; see also, Beaver v. Hill, 2019 ONCA 520, at paras. 14-15. These cases support my preliminary view that the EAJ’s failure to recuse himself from hearing Canada’s RFD is probably an interlocutory decision appealable only with leave to the Divisional Court. However, a preliminary assessment of whether jurisdiction is likely to arise from other aspects of the Order Under Appeal requires further analysis.

Jurisdiction probably does not arise under the traditional Hendrickson test

[47] This court recently affirmed in Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, at para. 16, that the test in Hendrickson v. Kallio, [1932] O.R. 675 (C.A.), at p. 678, continues to govern in deciding whether an order is final or interlocutory. That test is as follows:

The interlocutory order from which there is no appeal is an order which does not determine the real matter in dispute between the parties – the very subject matter of the litigation, but only some matter collateral. It may be final in the sense that it determines the very question raised by the application, but it is interlocutory if the merits of the case remain to be determined.

[48] As Hendrickson teaches, the mere fact that the Order Under Appeal appears to have finally resolved the appointment of an ISA and the terms of the St. Anne’s Review does not make the order a final one. MacFarland J.A. confirmed this point in Waldman v. Thomson Reuters Canada Limited, 2015 ONCA 53, 330 O.A.C. 142, at para. 22, noting that if an order were deemed final simply because it disposed finally of whatever issue was before the court, “the distinction between interlocutory and final orders would cease to exist”.

[49] The material question is whether the Order Under Appeal finally resolved the “real matter in dispute between the parties”, meaning “the very subject matter of the litigation”. The real matter in dispute between the parties is whether Canada breached the disclosure obligations it owes to St. Anne’s IRS claimants under the IAP. In my view, the Order Under Appeal does not resolve that dispute. At most, it provides a procedure for making future findings that may bear indirectly upon that dispute. I will explain.

[50] The EAJ did not make any findings of fact relating to disclosure in the Order Under Appeal. Instead, he appointed the ISA as “a referee in accordance with Rule 54 of the Rules of Civil Procedure … mutatis mutandis” who “shall make a report that contains his or her findings, conclusions and recommendations.”

[51] Of importance, any reported findings, conclusions, or recommendations of a referee under r. 54 have no legal effect unless the report is confirmed by the directing judge after a confirmation hearing on notice to the parties: rr. 54.07-54.08. Therefore, if the ISA’s ultimate findings do resolve substantive issues between the parties, those findings would not arise from the Order Under Appeal, but instead from the ISA’s report, which is not yet in existence and which may or may not be confirmed by the EAJ.

[52] Moreover, pursuant to r. 54.05, the moving parties are entitled to challenge the progress of the ISA before he produces his report. Further, pursuant to rr. 54.07-54.08, they will be free to oppose any findings the ISA eventually makes before those findings have legal effect.

[53] Not surprisingly, in Webb v. 3584747 Canada Inc. (2002), 161 O.A.C. 244 (Div. Ct.), a judge’s order appointing a referee pursuant to r. 54 to determine the claims of certain class members in a class action was characterized as “interlocutory”: at para. 1.

[54] In light of the foregoing, I think that jurisdiction probably does not arise in this case under the traditional Hendrickson test.

Jurisdiction probably does not arise even under a “modified approach”

[55] For the sake of completeness, I will consider this court’s decision in Parsons v. Ontario, 2015 ONCA 158, 125 O.R. (3d) 168, rev’d on other grounds, 2016 SCC 42, [2016] 2 S.C.R. 162. In Parsons, at para. 44, LaForme J.A. (for the majority) took a “somewhat modified approach” in distinguishing between final and interlocutory orders within a national class action where the substantive merits and defences had already been determined by a judicially-approved settlement agreement.

[56] Applying this “somewhat modified approach”, LaForme J.A. characterized as final an order determining that supervisory judges from different provinces could sit together to hear concurrent motions for a proposed protocol extending the first claims deadline in the settlement agreement. LaForme J.A. found that the “essential character” of the RFD leading to the order was akin to an application to interpret a statute or contract under r. 14.05(3)(d). By analogy, LaForme J.A. held that the order was therefore final rather than interlocutory.

[57] Juriansz J.A. issued a strong dissent. He rejected the modified approach endorsed by LaForma J.A., saying it would be confusing. In Juriansz J.A.’s view, even where substantive rights have already been settled in a class action and no claims or defences remain to be tried, the traditional Hendrickson test should still be applied: Parsons, at para. 208. For Juriansz J.A., the real issue in dispute was whether the court should extend the deadline for filing first claims. He concluded that this issue was not finally resolved by determining the forum in which the court could hear the underlying motion. Therefore, according to Juriansz J.A., the order under appeal was interlocutory and this court did not have jurisdiction.

[58] I need not resolve whether the approach taken by LaForme J.A. is appropriate because applying that approach would not alter my preliminary assessment of the Order Under Appeal. Of importance, in Parsons, at para. 53, LaForme J.A. cautioned that not all appeals from orders of supervisory judges under a national class action settlement agreement are final. The proper characterization will turn on the specific order under appeal.

[59] In my view, even applying LaForme J.A.’s somewhat modified approach, the Order Under Appeal is probably interlocutory. Assuming, without deciding, that Canada’s RFD may be characterized as analogous to an application under r. 14.05, the Order Under Appeal is distinguishable from the order in Parsons in at least two material ways.

[60] First, the Order Under Appeal did not determine the forum in which any substantive issues between Canada and the moving parties would be resolved. The substantive disclosure issues between the parties are being litigated in Metatawabin RFD #2 before Glustein J. The Order Under Appeal does nothing to prevent that litigation from continuing.

[61] Second, the Order Under Appeal is based on r. 54, providing a statutory basis on which the moving parties may challenge the St. Anne’s Review as it progresses, and oppose the ISA’s substantive findings, conclusions, and recommendations at a future hearing before they take effect.

[62] In my view, even using the somewhat modified approach that LaForme J.A. applied in Parsons, there is nothing about the Order Under Appeal that could support the conclusion that it is a final order.

Conclusion on the seriousness of the issue to be determined on appeal

[63] In my preliminary view, the Order Under Appeal is probably interlocutory. If I am correct, this would make the moving parties’ appeal filed in this court “meritless”: Henderson, at para. 8. Regardless of the substantive merits of the grounds of appeal advanced by the moving parties, this probable absence of jurisdiction undermines the seriousness of the issues to be determined. As such, I find that the first RJR-MacDonald factor militates against granting the stay.

[64] However, even if I am wrong and the Order Under Appeal is final such that there are viable serious issues to be determined on appeal, this alone would not entitle the moving parties to a stay pending appeal. They must ultimately persuade me that a stay is in the interests of justice by showing they will suffer irreparable harm if a stay is not granted and that the balance of convenience weighs in their favour.

[65] As I will explain, I am not persuaded that the remaining RJR-MacDonald factors favour granting the requested stay pending appeal.

(2) Irreparable Harm

[66] When framed properly, irreparable harm arguments should focus on the adverse effects that are likely to arise if the order under appeal is not stayed pending appeal: Ducharme v. Hudson, 2021 ONCA 151, at para. 20. Many of the moving parties’ irreparable harm arguments focused instead on allegations about the harm caused by the Order Under Appeal itself, including that it was obtained through an unfair process from a judge who did not properly enforce the Disclosure Orders. I will not consider those submissions further.

[67] Only three of the submissions made before me relate to harm that could be caused by failing to stay the Order Under Appeal pending appeal:

(i) The St. Anne’s Review could produce results that are inconsistent with the ultimate resolution of Metatawabin RFD #2;

(ii) Access to justice will be denied to the St. Anne’s IRS IAP claimants potentially affected by Metatawabin RFD #2; and

(iii) The St. Anne’s Review will create duplicative costs.

[68] I will address each submission in turn.

(i) Inconsistent findings will not result from the Order Under Appeal

[69] Without question, the risk of inconsistent findings or results from parallel proceedings can cause irreparable harm to parties and to the administration of justice: Fontaine v. Canada (Attorney General), 2018 ONCA 832, at para. 15.

[70] However, in my view, there is no realistic risk of inconsistent findings between Metatawabin RFD #2 and the Order Under Appeal. As I have explained, no findings were made in the Order Under Appeal relating to disclosure. The risk of inconsistent findings would arise, if at all, from the ISA’s report, which may or may not take legal effect if confirmed at some later date. In other words, at this stage, an assessment of whether inconsistent legal determinations might arise from the St. Anne’s Review would be purely speculative.

[71] Indeed, there is no evidence before me indicating a realistic risk that the ISA himself could make findings that are inconsistent with those that may be made in Metatawabin RFD #2. Metatawabin RFD #2 is concerned with whether Canada breached the Disclosure Orders. Its focus is on the disclosure that has not been made, and whether Canada failed to revise POI Reports contrary to the Disclosure Orders after those Disclosure Orders were issued in 2014-2015. As revealed in the terms of the St. Anne’s Review set out at para. 10 of the Order Under Appeal, reproduced at para. 31 above, the ISA’s mandate is to consider whether the disclosure that has been made pursuant to the Disclosure Orders was available during IAP claim adjudications that occurred before the Disclosure Orders were issued in 2014-2015.

(ii) Access to justice will not be denied to the St. Anne’s IRS IAP claimants

[72] In the Assignment Order, the EAJ was assigned to decide Canada’s RFD requesting the appointment of an ISA. In support of their motion to stay the Assignment Order, the moving parties argued that unless that Order was stayed pending appeal, thereby preventing the EAJ from deciding Canada’s RFD, “access to justice for the 166+ St. Anne’s Claimants, in the [Metatawabin RFD #2] proceedings before Glustein J., will be denied”.

[73] This irreparable harm argument is obviously linked to the moving parties’ contention in their Notice of Appeal #1 that Canada’s RFD was brought to frustrate the Metatawabin RFD #2 hearing that is currently underway before Glustein J. Assuming the moving parties rely on this argument in support of Motion #2, I do not accept it.

[74] The Order Under Appeal does not purport to stay or adjourn the Metatawabin RFD #2 hearing, nor does it purport to direct anyone to discontinue those proceedings. Nor, for the reasons I have given, does the Order Under Appeal present a realistic risk of inconsistent findings that could compromise the ultimate decision on the merits in Metatawabin RFD #2. Finally, the Order Under Appeal does not appear to jeopardize any benefits that may be obtained by the moving parties in Metatawabin RFD #2.

[75] To the contrary, the ISA’s mandate is to determine whether additional compensation should have been paid to certain St. Anne’s IRS IAP claimants. Although the Order Under Appeal does not provide a specific mechanism for rectifying underpayment, it is evident that the Order could lead to additional payments being made to certain St. Anne’s claimants. It is difficult to characterize the possibility of additional compensation to claimants as irreparable harm.

(iii) There is no risk of duplicative costs

[76] Since the Order Under Appeal does not address the same issues as Metatawabin RFD #2, any costs that IAP claimants may incur in relation to the St. Anne’s Review would not be duplicative.

Conclusion on irreparable harm

[77] Accordingly, the moving parties have not satisfied me that irremediable harm will arise if the Order Under Appeal is not stayed.

(3) The Balance of Convenience

[78] I have identified no irreparable harm to the moving parties. Nor has any other harm been demonstrated that could support their view that the balance of convenience favours granting a stay pending appeal.

[79] In contrast, in my view there is a risk of harm to Canada if a stay is ordered. The St. Anne’s Review would be delayed, postponing Canada’s ambition to reinforce public confidence in the IRSSA by obtaining a full and timely claims review. However, I am not persuaded that this risk is pressing because the unfairness concerns underlying the St. Anne’s Review are not apt to be answered until all related proceedings, including Metatawabin RFD #2 and the appeal in this matter, are concluded.

[80] Suffice it to say that, in my view, the balance of convenience does not favour a stay pending appeal.

(4) Conclusion on the Stay Motion

[81] Given the probable jurisdictional issues I have identified, in my view there is no serious issue to be determined on appeal to this court. Even if there were, I have not found any irreparable harm if a stay pending appeal is not ordered, and the balance of convenience does not favour a stay.

[82] Accordingly, I conclude it is not in the interests of justice to stay the Order Under Appeal.

B. A PRESERVATION ORDER IS NOT WARRANTED

[83] The Order Under Appeal does not address the preservation of documents, nor does the Assignment Order. There is therefore no issue being appealed that relates directly to the preservation of documents. The moving parties nonetheless request that I make a preservation order. The scope of the relief sought is set out in a draft order filed with Motion #1. If granted, in addition to incidental relief, that order would require Canada to preserve the following:

Every document … that [is] or [has] been in the possession of government officials, which document in any way pertains to St. Anne’s IAP claims adjudicated under the IRSSA and/or to Requests for Directions and/or civil actions related thereto, unless and until further Order of the Ontario Superior Court of Justice.

[84] The moving parties cite no authority to support the preservation order they request. The Crown contends that I have no jurisdiction to make that order. I do not entirely agree. Section 134(2) of the CJA authorizes a single judge of this court to make “any interim order” considered just to prevent prejudice to a party pending appeal: Sub-Prime Mortgage Corporation v. Kaweesa, 2021 ONCA 215, at paras. 44-46. The moving parties are concerned with the prejudice that could arise if documents required to pursue re-opened IAP claims are destroyed before those claims are re-opened. The focus of their concern is a “sunset order” that was issued on May 29, 2020 permitting Canada to destroy documents in anticipation of the March 31, 2021 deadline for the IAP to cease operations (the “Sunset Order”). The documents were to be destroyed to protect the privacy of IAP claimants.

[85] In response to a separate motion brought by the moving parties, on February 3, 2021 the WAJ varied the Sunset Order to require Canada to preserve documentation relating to St. Anne’s IRS IAP claims (the “Sunset Variation Order”). The moving parties contend that the Sunset Variation Order does not cover all the documents that may be relevant to St. Anne’s IRS IAP claims implicated in Metatawabin RFD #2. They argue that the preservation order they seek is urgently required to prevent the litigation related to this appeal from being undermined by the destruction of documents.

[86] Although I do have jurisdiction to make the requested interim preservation order pursuant to CJA s. 134(2), in my view it is not in the interests of justice to do so.

[87] First, I have concerns about judge shopping and duplicative proceedings. The moving parties have not appealed the WAJ’s Sunset Variation Order. On March 18, 2021, the moving parties amended Metatawabin RFD #2 to include a request for an order directing Canada not to destroy any IAP documents. Therefore, that issue is now before Glustein J. This reduces any potential urgency or risk of irreparable harm that may have militated in favour of granting the requested preservation order in the interests of justice.

[88] Second, this requested relief engages complex issues relating to the risks associated with preserving highly confidential documents. I am not satisfied that all considerations that should bear on the preservation order sought by the moving parties were fully argued before me.

[89] Third, I am not satisfied that the preservation order is necessary to prevent prejudice to the moving parties in the context of their appeal. On March 23, 2021, Canada advised that it would seek an order permitting it to preserve all St. Anne’s IRS documents pending the completion of the St. Anne’s Review if court counsel, Mr. Gover, instructed Canada to do so. Canada also undertook to preserve those documents from destruction “until the RFD is returned”. The next day, Mr. Gover advised the parties that Canada’s undertaking was “satisfactory to the Courts” and no formal order was necessary. Even though Canada’s RFD has already been returned and the Order Under Appeal has been rendered, counsel for Canada affirmed before me that Canada’s undertaking to the Ontario Superior Court of Justice was deemed sufficient for the purpose of preserving the documents pending the outcome of these matters.

[90] It is therefore not in the interests of justice for me to make the interim preservation order requested by the moving parties.

DISPOSITION

[91] The motions for a stay pending appeal of the Order Under Appeal and for an interim preservation order are dismissed.

[92] If Canada, the responding party, wishes to pursue a costs order, it may provide submissions in writing, not to exceed 3 pages, accompanied by a bill of costs within 10 court days of the receipt of this decision. The moving parties may respond and make costs submissions in writing, not to exceed 3 pages, accompanied by a bill of costs, within 5 court days of being served with Canada’s costs materials.

“David M. Paciocco J.A.”