COURT FILE NO.: 00-CV-192059 DATE: 20160705 ONTARIO SUPERIOR COURT OF JUSTICE
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 ATHBASCA, 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 WESTMINISTER, 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, INSITUT DES SOEURS DU BON CONSEIL, LES SOEURS DE SAINT-JOSEPH DE SAINT-HYANCITHE, LES SOEURS DE JESUS-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 CHARITE DE ST.-HYACINTHE, LES OEUVRES OBLATES DE L’ONTARIO, LES RESIDENCES OBLATES DU QUEBEC, LA CORPORATION EPISCOPALE CATHOLIQUE ROMAINE DE LA BAIE JAMES (THE ROMAN CATHOLIC EPISCOPAL CORPORATION OF JAMES BAY), THE CATHOLIC DIOCESE OF MOOSONEE, SOEURS GRISES DE MONTR é AL/GREY NUNS OF MONTREAL, SISTERS OF CHARITY (GREY NUNS) OF ALBERTA, LES SOEURS DE LA CHARIT é 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 IMMACULEE 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 PERES 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 ARCHI éPISCOPALE 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 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
Proceeding under the Class Proceedings Act, 1992
COUNSEL and APPEARANCES:
- Fay Brunning for Claimant H-15019
- Michael Swinwood for Claimant K-10106
- Chief Edmund Metatawabin for Mushkegowuk Council
- John Adair for Wallbridge LLP
- Iain A.C. MacKinnon for the Canadian Broadcasting Corporation
- Susan Enberg, documentary filmmaker
- Catherine Coughlan and Brent Thompson for the Attorney General of Canada
HEARING DATE: May 11, 2016
PERELL, J.
REASONS FOR DECISION
A. INTRODUCTION
[1] Claimant H-15019 is a claimant under the Independent Assessment Process (“IAP”) of the Indian Residential Schools Settlement Agreement (“IRSSA”). He brings a Request for Directions (“RFD”).
[2] Claimant H-15019’s RFD is the latest manifestation of the bedevilling problems of documentary disclosure for the IAP claims for the St. Anne’s Indian Residential School (“St. Anne’s IRS”) and for Bishop Horden Indian Residential School (“Bishop Horden IRS”).
[3] There is a companion RFD from Mushkegowuk Council, which is represented by Chief Edmund Metatawabin. The Mushkegowuk Council also seeks court orders to rectify disclosure problems associated with St. Anne’s IRS. Moreover, Claimant K-10106, who at one time was represented by Claimant H-15019’s lawyer, is another IAP claimant who has a similar grievance to that of Claimant H-15019 about non-disclosure of information for his IAP claim.
[4] Claimant H-15019’s RFD and Mushkegowuk Council’s RFD extend the series of RFD motions and applications in which IAP claimants have alleged that the IAP has been corrupted by Canada’s alleged non-compliance with documentary production and report-making obligations under the IRSSA. In this regard, see: Fontaine v. Canada (Attorney General), 2014 ONSC 283; Fontaine v. Canada (Attorney General), 2014 ONSC 4024; Fontaine v. Canada (Attorney General), 2015 ONSC 1435; Fontaine v. Canada (Attorney General), 2015 ONSC 3611; Fontaine v. Canada (Attorney General), 2015 ONSC 4061; Fontaine v. Canada (Attorney General), 2015 ONSC 5177.
[5] The matter of IAP documentary production, the confidentiality of IAP documents, and the preservation and destruction of IAP documents have also been the subject of other RFDs; namely: Fontaine v. Canada (Attorney General), 2014 ONSC 4585, varied 2016 ONCA 241.
[6] It is an oversimplification, but Claimant H-15019, in effect, protests that the IAP was corrupted and an injustice has occurred because his IAP claim was dismissed notwithstanding that documents and reports that proved his claim had been supressed. He submits that important information was not disclosed to adjudicators because Canada allegedly failed to comply with a court order to produce or to revise and refile the documentary record for IAP claimants.
[7] The primary goal of Claimant H-15019’s RFD is to have the court order a new hearing of his IAP claim based on a revised record that would be compliant with Canada’s disclosure obligations under the IAP. As described further below, Claimant H-15019 also seeks directives as the procedural and evidentiary rules for the re-opened IAP hearing. And, he seeks a re-opening of many if not all of the IAP claims for St. Anne’s IRS and for other Indian Residential Schools.
[8] Further, in prosecuting the RFD, Claimant H-15019’s counsel, Fay Brunning, makes extraordinarily serious allegations of professional misconduct and perhaps in some instances criminal misconduct by Department of Justice lawyers, by lawyers who acted for Catholic Church Entities defendants, by Adjudicators, and by Claimant H-15019’s former counsel. It seems that Ms. Brunning wishes to use the RFD as a public commission of inquiry about the integrity of the IAP. As I will note below, this purpose seems to underlie Claimant H-15019’s position with respect to what should be sealed or not sealed or what should be redacted or not redacted in the public record for this RFD.
[9] Thus, on his RFD, Claimant H-15019 seeks:
(a) an order directing a re-hearing of his IAP application, along with leave to amend his application;
(b) an order directing how the Adjudicator should adjudicate the IAP with respect to the admissibility and use of evidence;
(c) payment of aggravated and/or punitive damages and any other proper remedies for breach of the IRSSA to IAP claimants prejudiced by the defendants’ failure to make documentary disclosure;
(d) alternatively, that the Chief Adjudicator be ordered to oversee the re-hearing on the correct documentary record;
(e) an order that there be a fresh IAP adjudicator who is fully familiar with the additional document for St. Anne’s IRS;
(f) an order that if his testimony is found credible, the Secretariat arrange a psychiatric evaluation of Claimant H-15019 as to harm suffered;
(g) that lawyers from the Department of Justice be removed from representing Canada or any defendant in all IAP re-hearing processes for former students of St. Anne’s IRS, including Claimant H-15019;
(h) an order that legal counsel for Canada and/or the Catholic Church Entities be estopped from opposing the admissibility of criminal trial transcripts and statements by former students to the Ontario Provincial Police (“OPP”) and/or from denying that certain adult supervisors attended at St. Anne’s IRS at relevant times;
(i) an order determining whether other former students of St. Anne's IRS may have been prejudiced in the outcome of his or her IAP claims, similar to his and to remedy the non-disclosure breach of the IRSSA by Canada and the Catholic Church Entities to ensure justice is done for survivors of St. Anne’s IRS;
(j) an order that a process be determined for claims of former students of St. Anne’s IRS that were decided prior to November 1, 2015 be reviewed for possible re-hearings;
(k) an order that a fee be paid by Canada, regardless of outcome, to his counsel in respect of the re-hearing process;
(l) an order that the Chief Adjudicator establish and maintain a shortlist of approved counsel;
(m) an order that the Secretariat be directed to fund approved counsel and designated agents of St. Anne’s Survivors Association to attend a legal education conference regarding representation of St. Anne’s IRS claimants; and,
(n) if an amendment of the IRSSA is necessary to effect the relief related to his counsel, that the court mandate the Oversight Committee to conduct a review and make recommendations to the National Administration Committee and the court.
[10] In the motion now before the court, Claimant H-15019 seeks a long list of preliminary relief in aid of the RFD. The Mushkegowuk Council supports the request for preliminary relief.
[11] The preliminary relief requested by Claimant H-15019 includes:
(a) a sealing order, a publication ban, redaction orders as necessary and an in camera hearing with respect to the record for the RFD;
(b) an order that Canada deliver affidavits from Gail Soonarane and Catherine Coughlan (who are Department of Justice lawyers), to explain why 12,300 documents about abuse at St. Anne’s IRS were improperly withheld from disclosure contrary to Appendices III and IV of Schedule D and/or Articles 2.9 and 2.10 of Schedule 0-3 to the IRSSA and to describe what steps, if any, have been taken by Canada and or Catholic Church Entities to identify IAP claimants whose claims for compensation have been compromised by Canada’s failure to comply with its disclosure and reporting obligations for IAP claims;
(c) an order that the IAP Adjudicator file an affidavit with respect to his conduct of the IAP hearing and what he said to him outside of the hearing;
(d) an order that the IAP Review Adjudicator file an affidavit about his conduct of the review hearing;
(e) an order that the Catholic Church Entities that operated St. Anne’s IRS file affidavit material on the RFD with respect to whether there has been compliance with the documentary disclosure and reporting obligations of the IAP;
(f) an order directing Canada and the Catholic Church Entities file affidavit evidence with respect to certain civil proceedings, the Cochrane Civil Action, that concerned abuse at St. Anne’s IRS;
(g) an order directing the Chief Adjudicator to file affidavit evidence as to why there was non-compliance with this court’s orders with respect to the production of documents for IAP hearings concerning St. Anne's IRS claimants;
(h) an order disqualifying Catherine Coughlan for appearing for Canada on the RFD; and,
(j) an advance costs award of $40,000.
[12] The preliminary relief requests can be categorized into four categories: (1) confidentiality orders; (2) summons to witness orders that compel evidence from two Department of Justice lawyers, other representatives of Canada, the Chief Adjudicator, an IAP Adjudicator, an IAP Review Adjudicator, and Catholic Church Entities; (3) the disqualification of a Department of Justice lawyer; and (4) an advance costs order.
[13] Save and except for the confidentiality orders, Canada submitted that Claimant H-15019’s motion for preliminary relief and indeed his RFD were premature, because Claimant H-15019 has not exhausted the review process for his IAP claim. Canada, therefore, requested that the motion for preliminary relief be dismissed and that the RFD be adjourned sine die.
[14] Because confidentiality orders prima facie offend the open court principle, notice of the motion for preliminary relief was given to the media. At the motion, Iain A.C. MacKinnon, a reporter for the Canadian Broadcasting Corporation, and Susan Enberg, a documentary filmmaker, spoke with respect to the confidentiality orders. They both opposed restrictions on the disclosure of information about a matter that they submitted was of the highest interest to the Canadian public.
[15] Such being the general background to this motion for preliminary relief, I shall foreshadow the discussion below.
[16] Relying on Fontaine v. Canada (Attorney General), 2014 ONSC 4585, varied 2016 ONCA 241, and my earlier decisions about documentary disclosure for IAP hearings at St. Anne’s IRS, I shall grant a confidentiality order including a publication ban for all documents, including the RFD, the factums, the court record, including affidavits and exhibits filed on this RFD, save and except for: (a) documents that have been disclosed to the Truth and Reconciliation Commission pursuant to the Order I made in Fontaine v. Canada (Attorney General), 2014 ONSC 283; (b) previously issued and publically accessible records; and (c) books of legal authorities or court orders.
[17] Practically speaking, I agree with Canada’s position about what should be sealed for this motion and for the RFD application and about what may be produced in full or in redacted form.
[18] In all other respects, for the reasons that follow, I adjourn sine die Claimant H-15019’s motion for preliminary relief. His motion may be brought on for a hearing, if necessary, after Claimant H-15019’s Re-Review hearing.
[19] I also adjourn sine die Claimant H-15019’s RFD, which may be brought on, if necessary, after Claimant H-15019’s Re-Review hearing.
B. FACTUAL BACKGROUND
[20] From the early 1900's until 1976, Canada forced Aboriginal children from First Nations in Winisk/Peawanuck, Attawapiskat, Fort Albany, Moose Factory, and Moosonee to reside at St. Anne’s IRS. The children were physically and sexually abused. Their stories are horrific.
[21] St. Anne's IRS was operated by certain Catholic Church Entities in pursuance of policies developed by the federal government of Canada.
[22] In 1992, Aboriginal leaders organized the Keykaywin Conference in Fort Albany to disclose what had occurred at St. Anne’s IRS and to begin the process of obtaining justice for the victims of physical, sexual, cultural, and spiritual abuse.
[23] After the Keykaywin Conference, Chief Edmund Metatawabin of the Fort Albany First Nation asked the OPP to investigate what had occurred at St. Anne’s IRS.
[24] From 1992 to 1997, the OPP met hundreds of former St. Anne’s IRS students and took witness statements. The OPP gathered documents. Criminal prosecutions brought by Ontario’s Ministry of the Attorney General followed, and more evidence, including expert evidence from psychiatrists, psychologists, and medical practitioners about child abuse was gathered. There were over 12,000 OPP and related documents in the Crown’s brief. Charges were laid against many of the teachers, staff, and supervisors of St. Anne’s IRS. There were trials with some acquittals and some convictions. Some of the alleged perpetrators died before their trials.
[25] In 2000, 154 former students hired Wallbridge, Wallbridge, now Wallbridge LLP, a law firm in Timmins, Ontario, to commence civil proceedings in Cochrane, Ontario, against Canada and the Catholic Church Entities.
[26] Around this time, there were also national class actions brought in several provinces about what had occurred at the Indian Residential Schools.
[27] In the Cochrane civil proceedings, the Department of Justice represented Canada and the Ottawa law firm of Nelligan O'Brien Payne, represented the three Catholic Church Entities that operated St. Anne's IRS. The OPP documents and the Crown brief were ordered produced in the civil proceedings.
[28] In 2005, after extensive examinations for discovery in the Cochrane civil proceedings, the parties negotiated a settlement. The terms of the settlement included a confidentiality clause.
[29] Meanwhile, there were negotiations leading to the settlement of the national class actions and also numerous individual actions against Canada and the numerous church Entities that operated Indian Residential Schools, including the Catholic Church Entities that operated St. Anne’s IRS. The settlement came to be known as the IRSSA.
[30] The background and the history of the negotiations that led to the IRSSA and a description and explanation of its nature can be found in the decisions cited above.
[31] In February 2011, Claimant H-15019, who was represented by Wallbridge LLP, applied for IAP compensation. There was a hearing before an Adjudicator assigned by the Chief Adjudicator of the IAP.
[32] For the immediate RFD, Claimant H-15019 deposed that on May 30, 2013, after the hearing of his IAP claim was completed, save for final submissions, the Adjudicator told him he believed his evidence.
[33] Meanwhile as Claimant H-15019’s IAP claim was being considered by the Adjudicator, there were RFD proceedings about whether or not Canada had complied with its disclosure obligations for the IAP. In those RFD proceedings, I ordered that Canada rectify several disclosure problems and file new materials for the hearing of IAP claims with respect to St. Anne’s IRS. The thrust of my Order of January 14, 2014 in Fontaine v. Canada (Attorney General), 2014 ONSC 283 was that the OPP produce its documents with respect to its investigations that led to the criminal charges about events at St. Anne’s IRS. The documents were to be produced to Canada for use in the IAP and to the Truth and Reconciliation Commission in accordance with the IRSSA.
[34] Neither Canada nor any of the Defendants nor the Adjudicators of the IAP suggested that hearings should be adjourned pending the delivery of the revised and augmented materials that I had ordered produced.
[35] On July 25, 2014, final submissions in Claimant H-15019’s IAP hearing were delivered.
[36] In September 2014, the Adjudicator denied Claimant H-15019’s claim.
[37] Claimant H-15019 applied for a review of the Adjudicator’s decision. However, the Review Adjudicator dismissed the review.
[38] Claimant H-15019 believes that the outcome of this IAP would have been different if proper disclosure of information including the OPP documents had been made by Canada, by the Defendants and by Claimant H-15019’s former lawyers, who, it is submitted, knew about the OPP documents because of their involvement in the Cochrane civil proceedings.
[39] Distraught by the outcome of the IAP, Claimant H-15019 attempted to commit suicide.
[40] After his recovery from his suicide attempt, Claimant H-15019 was encouraged by medical practitioners to retain new counsel, which he did. The new counsel, Ms. Brunning, who has been involved in numerous claims involving St. Anne’s IRS and who was also involved in the series of RFD decisions about the disclosure of information for the St. Anne’s IRS hearings of IAP claims, initiated the RFD that is now before the court.
[41] Claimant H-15019 also petitioned the Mushkegowuk Council for assistance, and on October 22, 2015, Mushkegowuk Council passed a Resolution calling for, among other things, a review of all St. Anne's IRS IAP claims for possible prejudice. The Mushkegowuk Council requested that IAP claimants be represented at new hearings by competent independent legal counsel, to be paid on a set fee basis regardless of outcome of the IAP claim.
[42] Claimant H-15019, however, did not request a Re-Review of his IAP claim. Rather, he brought this RFD.
[43] Canada did not file any evidence on the RFD. The Catholic Church Entities did not participate in the RFD. The Chief Adjudicator and the other Adjudicators did not participate or file evidence on the RFD.
[44] As noted above, Claimant H-15019 seeks various forms of preliminary relief for his RFD.
C. CONFIDENTIALITY ORDERS
[45] There are four major components to the IRSSA: (1) Canada placed $1.9 billion into a trust fund to fund payments of the “Common Experience Payment” (“CEP”) to Class Members who resided at an Indian Residential School during the class period; (2) the IAP, under which Class Members who suffered physical or sexual abuse at an Indian Residential School could claim compensation, was established; (3) the Truth and Reconciliation Commission was established with a mandate to create an historical record of the Indian Residential School system to be preserved and made accessible to the public for future study; and (4) Class Members released their legal claims in exchange for the benefits of the IRSSA. The releases extended to Canada and the Catholic Church Entities who were the named Defendants.
[46] Under the IRSSA, to facilitate the work of the Truth and Reconciliation Commission and to implement the IAP, very substantial obligations were imposed on the Defendants, most particularly Canada, to produce documents, many of which contained extraordinarily sensitive personal information about the cause and effects of the abomination that was Canada’s Indian Residential School system.
[47] There is, thus, within the IRSSA, an intense tension arising from the gathering of documents to create a public historical record of the calamity and the use of those documents in proceedings in which the most solemn undertakings of confidentiality were given to the victims of that calamity.
[48] As I discussed at some great length in Fontaine v. Canada (Attorney General), 2014 ONSC 4585, varied 2016 ONCA 241, the confidentiality of the IAP was a fundamental and solemn obligation under the IRSSA. At para. 326, I stated:
- Near to absolute confidentiality was a necessary aspect of the IAP. Near to absolute confidentiality meant that the IAP Documents would be used for the IAP only subject to very limited exceptions that necessitated that the documents be retained so that criminals and child abusers or those incapable of caring for their children would not escape the administration of justice. After these uses were completed, the confidentiality would become absolute and the IAP Documents would be destroyed. This approach to confidentiality is necessary to make the IAP work and this treatment of the IAP Documents is also necessary to not re-victimize the Claimants and to promote healing and reconciliation between the Claimants and Canada.
[49] In Fontaine v. Canada (Attorney General), supra, I held that the IAP documents were not court records, but if they had been court records, then without doubt, the IAP documents would be sealed by court order. I stated at paras. 354-355:
Earlier in these Reasons for Decision I held that the IAP Documents were not court records and as such were not subject to the open court principle that would provide the public with access to what would otherwise be private and in the case of IAP Documents very private and very personal information. I also observed, however, that the open court principle has lessons about when and how to protect the confidentiality and the privacy of parties who might be injured by the disclosure of a court record.
The point I now wish to make is that if the IAP Documents had been court documents, they, without doubt, would have been sealed by court order. …
[50] Before Claimant H-15019’s RFD, which is now before the court, the problems about the documents associated with St. Anne’s IRS did not concern their confidentiality. The problems rather were associated with alleged failures by Canada and the Catholic Church Entities to disclose documents for the historical record being put together by the Truth and Reconciliation Commission and for the IAP where the documents were to be used as a part of a confidential process. Thus, as already noted above, the thrust of my Order of January 14, 2014 in Fontaine v. Canada (Attorney General), 2014 ONSC 283 was that the OPP and Canada produce documents with respect to the police investigations that led to criminal charges about events at St. Anne’s IRS. The documents were to be produced to Canada for use in the IAP and to the Truth and Reconciliation Commission in accordance with the IRSSA.
[51] The current RFD again concerns problems about the documentary production for the St. Anne’s IRS IAP hearings, but the preliminary motion before the court makes an issue about the confidentiality of the evidentiary record for the RFD.
[52] In the immediate case, there was no dispute between the parties that there should be a publication ban in respect of identifying Claimant H-15019 and any other IAP claimants. Although Claimant H-15019 disagreed, Canada submitted that the publication ban should also encompass alleged perpetrators and others affected by Claimant H-15019’s IAP claim. Claimant H-15019 also wished numerous documents, including IAP documents, be made a part of the public court record.
[53] Claimant H-15019 and Canada completed a 29-page single spaced chart outlining their respective positions about what documents should be sealed and about what documents should not be sealed for the RFD.
[54] As revealed by the argument in his factum and by his claims for relief in both the RFD and on this motion, it seems that Claimant H-15019, who, through his counsel, makes a passionate commendation of the virtues of the open court principle, is motivated by a zeal for a judicial commission of inquiry about the integrity of the IAP and about the professional integrity of the lawyers acting both for and against all IAP claimants. For these purposes, he desires disclosure of many IAP documents that were produced for the highly confidential IAP.
[55] For present purposes, I need not comment about whether a RFD is appropriate for these purposes, which go beyond the immediate needs of Claimant H-15019 for a fair and just determination of his IAP claim. I only mention his purpose, without deciding whether or not it can be accommodated by a RFD, to point out that the purpose of this particular RFD does not change the fact that the confidential nature of the IAP and the extent of public disclosure of documents relevant to the IAP and to the truth and reconciliation purposes of the IRSSA has already been decided in Fontaine v. Canada (Attorney General), 2014 ONSC 4585, varied 2016 ONCA 241 and in the long series of decisions set out in the introduction of these Reasons for Decision.
[56] I incorporate by reference the reasoning in all these decisions, and I would apply those decisions in the circumstances of the immediate case.
[57] Therefore, I shall grant a confidentiality order and publication ban for all documents, including the RFD, the factums, the court record, including affidavits and exhibits filed on this RFD, save and except for: (a) documents that have been disclosed to the Truth and Reconciliation Commission pursuant to the Order I made in Fontaine v. Canada (Attorney General), 2014 ONSC 283; (b) previously issued and publically accessible records; and (c) books of legal authorities and court orders.
[58] Practically speaking, this Order accepts Canada’s approach to what materials should be sealed and what materials should form part of the public record for this RFD including the immediate motion. Practically speaking, the result will be an evidentiary record for the use of the parties to the immediate RFD and to the parties of the Mushkegowuk Council RFD and a redacted record for the court record. The parties’ records will be sealed and there will be a publication ban as requested by Canada.
D. SUMMONS TO WITNESS AND LAWYER DISQUALIFICATION REQUESTS
[59] Canada submits that all the other requests for preliminary relief are premature because Claimant H-15019 has not completed the review process for the IAP. Canada consents to a re-review, notwithstanding the expiration of applicable timelines, and it consents to the production of the revised Narrative and POI Reports for consideration by the Re-Review Adjudicator.
[60] In Fontaine v. Canada (Attorney General), 2016 ONSC 4326, a recently released RFD about Spanish Boys’ Indian Residential School in Spanish, Ontario, (“Spanish Boys’ IRS”), I discuss the jurisdiction of Review Adjudicators, Re-Review Adjudicators, and of the court to correct factual errors and other errors made by Adjudicators, Review Adjudicators, and Re-Review Adjudicators in applying the IAP model.
[61] For the immediate Reasons for Decision, I incorporate by reference that analysis from the Spanish Boys’ IRS case, and I conclude that if, as alleged by Claimant H-15019, there was some impropriety in the prosecution and defence of his IAP claim, then there is a remedial jurisdiction to fix the problem.
[62] As revealed by the RFD about the Spanish Boys’ IRS, the remedial jurisdiction includes a series of stages and the remedial jurisdiction also includes within it the possibility that after-acquired information that ought to have been before the Adjudicator can be used to correct injustices that may have occurred at any level of the review process. In the immediate case, Canada agrees that the revised material may be considered by the Re-Review Adjudicator.
[63] I, thus, agree with Canada’s submission that the current RFD is premature as is the immediate request for preliminary relief for that RFD. I, therefore, adjourn the motion and the RFD sine die to be brought on, if necessary, after the completion of the review process under the IRSSA.
[64] In adjourning the motion sine die and the RFD sine die to be brought on if necessary, I am not to be taken as ruling that there was or was not jurisdiction to grant any of the requests for relief that are being adjourned.
E. ADVANCE COSTS
[65] For similar reasons, I regard the request for advance costs for the RFD as premature, and I am not to be taken as ruling on the merits of this request should it be renewed, if necessary, after the review process under the IRSSA has been completed.
F. CONCLUSION
[66] Order accordingly.
[67] If the RFD is subsequently resumed, the costs of this motion shall be in the cause. If the RFD is not subsequently resumed, there shall be no order as to costs.
Perell, J. Released: July 5, 2016
COURT FILE NO.: 00-CV-192059 DATE: 20160705 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
LARRY PHILIP FONTAINE in his personal capacity and in his capacity as the Executor of the estate of Agnes Mary Fontaine, deceased, et al. Plaintiffs
‑ and ‑
THE ATTORNEY GENERAL OF CANADA et al. Defendants
REASONS FOR DECISION ________________________________________ Perell, J. Released: July 5, 2016