Court File and Parties

COURT FILE NO.: 00-CV-192059 DATE: 2017-02-17 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:

• Fay K. Brunning, for the Requestor, IAP Claimant H-15019
• Catherine A. Coughlan, for the Attorney General of Canada
• Michael Darcy, for Nelligan O’Brien Payne LLP

HEARD: February 7, 2017

PERELL, J.

DIRECTION

A. FACTUAL AND PROCEDURAL BACKGROUND

[1] This is a direction with respect to the timing and the procedural case management of a RFD (“Request for Directions).

[2] Claimant H-15019 (also referred to as the “Requestor”) is a claimant under the Independent Assessment Process (“IAP”) established by the Indian Residential Schools Settlement Agreement (“IRSSA”). He attended St. Anne’s Indian Residential School (“St. Anne’s IRS”) in Fort Albany, Ontario. The Requestor’s claim for compensation through the IAP was dismissed.

[3] Subsequently, the Requestor brought a Request for Direction (“RFD”) seeking various forms of relief, some of them quite extraordinary. [1] His RFD alleges non-compliance by Canada with documentation and report-making obligations under the IRSSA. These issues have been the subject of decisions of this court; see Fontaine v. Canada (Attorney General), 2014 ONSC 283; [2] 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; and Fontaine v. Canada (Attorney General), 2014 ONSC 4585, varied 2016 ONCA 241.

[4] The order arising out of one of the decisions referenced in the preceding paragraph, namely, Fontaine v. Canada (Attorney General), 2014 ONSC 283 (referred to as the “January 14, 2014 order”) has a special importance in the context of this RFD in that the Requestor takes the position that Canada has not complied with certain aspects of it. The January 14, 2014 order provided in part as follows:

5. THIS COURT ORDERS that Canada shall by June 30, 2014, produce for the IAP: (a) the OPP documents in its possession and/or received from the OPP about the sexual and/or physical abuse at St. Anne’s IRS; (b) the transcripts of criminal or civil proceedings in its possession about the sexual and/or physical abuse at St. Anne’s IRS; and (c) any other relevant and non-privileged documents in the possession of Canada to comply with the proper reading and interpretation of Canada’s disclosure obligations under Appendix VIII. [3]

[5] The Requestor also sought what I previously characterized as a “long list of preliminary relief in aid of the RFD”, including: (a) advance costs; (b) a sealing order and publication ban; (c) orders requiring affidavits to be sworn by the Chief Adjudication, the IAP adjudicator, the review adjudicator, representative of the Catholic Church entities, and Canada’s counsel; and (d) an order disqualifying Canada’s counsel from appearing on the RFD. [4]

[6] The Requestor’s motion for preliminary relief was heard on May 11, 2016. In Reasons for Decision released on July 5, 2016, I agreed with Canada’s submission that the RFD was premature in that the Requestor had not accessed the re-review process available in the IAP. Consequently, I declined to grant any relief other than a confidentiality order and publication ban. The balance of the Requestor’s motion for preliminary relief was adjourned sine die. [5]

[7] In subsequent correspondence with Court Counsel, Ms. Brunning, the Requestor’s counsel:

1. Sought the return of this RFD so that the court would determine (a) the admissibility in the IAP re-review process of witness statements provided to the Ontario Provincial Police (“OPP”) and transcripts of “criminal proceedings and/or civil proceedings”, (b) the use that the re-review adjudicator could make of those items, and (c) whether Canada was required to produce redacted copies of transcripts of examinations for discovery; [6]
2. Asked the court to direct Canada’s counsel to immediately confirm that Canada’s filings pertaining to the Requestor’s re-review do not contain any transcripts from examinations for discovery about child abuse at St. Anne’s IRS and that the four Person of Interest (“POI”) reports filed in relation to the re-review do not include summaries of the evidence contained in those transcripts; [7]
3. Advised that a motion would be brought on behalf of the Requestor, to obtain the transcripts of the civil proceedings concerning sexual and physical abuse at St. Anne’s IRS as per subparagraph 6(b) of the court’s January 14, 2014 order, and requested that the re-review be adjourned pending determination of that motion; [8]
4. Again requested that the court adjourn the re-review pending determination of the motion; [9]
5. Asked that an RFD brought on behalf of another former St. Anne’s IRS student (C-14114) seeking an order that Canada file, among other things, “transcripts from civil proceedings, in accordance with the Orders of Justice Perell dated January 14, 2014 and June 23, 2015” be heard together with the Requestor’s RFD; [10] and
6. Sought the immediate return of the Requestor’s motion, filed on October 26, 2016, alleging that “Canada has still not complied with the Order of January 14, 2014, having failed to file the transcripts of the civil proceedings about sexual and physical abuse of IRS children at St. Anne’s.” [11]

The last of these items, together with email correspondence over the next day, resulted in the case conference being scheduled for February 7, 2017.

[8] Meanwhile, on December 14, 2016, and with the consent of the parties, I granted an order that included adjournment sine die of the hearing of the RFDs brought on behalf of IAP Claimants H-15019 and C-14114, which had been scheduled for March 24, 2017. I directed that instead a standing and jurisdiction motion in a related RFD be heard. [12]

B. FEBRUARY 7, 2017 CASE CONFERENCE

[9] The case conference took place as scheduled on February 7, 2017. Canada’s counsel, Ms. Coughlan, informed the court that the re-review has taken place and that a new hearing has been ordered. This appears to be the only change of any substance in the procedural history pertaining to the Requestor’s IAP claim.

[10] The main matter discussed at the case conference was whether there was substance to the Requestor’s allegation that Canada has failed to produce documents for use in the IAP. The Requestor has taken the position that Canada has not complied with the January 14, 2014 order. That matter appeared to be germane to the pending rehearing of H15019’s pending IAP rehearing.

[11] Ms. Coughlan, however, submitted that Canada has fully complied with the court’s order of January 14, 2014. It was Ms. Coughlan’s submission that the Requestor’s counsel, Ms. Brunning, now seeks production of documents beyond what was required by that order. The OPP statements and the transcripts of the criminal proceedings have been produced by Canada, and Ms. Coughlan submitted that no other documents were covered by the January 14, 2014 order.

[12] Ms. Coughlan reported that the civil proceedings in Cochrane did not proceed to trial. Ms. Coughlan confirmed that Canada is in possession of the examination for discovery transcripts from those civil proceedings, but she submitted that they are subject to the deemed undertaking rule. The examinations for discovery were conducted under case management. The transcripts have never been brought into the public domain. She submitted that there are privacy issues and the plaintiffs’ consent to the release of these transcripts has never been sought. Ms. Coughlan further submitted that settlement privilege attaches to the transcripts, and stated that if they are to be produced, her client would prefer that Canada be ordered to do so following argument of the matter.

[13] Ms. Brunning asserted that it is her responsibility to ensure that her client obtains all of the disclosure that he is entitled to. She submitted that the examination for discovery transcripts contain similar fact evidence.

[14] Ms. Brunning took the position that evidence will be required for a determination of the issue of whether Canada has complied with the January 14, 2014 order. She went so far as to openly express a distrust of Canada.

[15] I note that by way of letter from Ms. Coughlan dated June 30, 2014, Canada reported to the court concerning its intended compliance with the January 14, 2014 order. In that letter, which was copied to Ms. Brunning, counsel for the Truth and Reconciliation Commission and other counsel, Ms. Coughlan indicated that on or before June 30, 2014:

1. Pursuant to subparagraph 6(a) of the January 14, 2014 order, Canada would produce the OPP documents in Canada’s possession and/or received from the OPP about the sexual and/or physical abuse at St. Anne’s IRS. This was said to comprise approximately 10,600 OPP investigation documents, totalling approximately 35,000 pages.
2. Pursuant to subparagraph 6(b) of the order, Canada would produce the transcripts of criminal proceedings in its possession concerning the sexual and/or physical abuse at St. Anne’s IRS. This was indicated to consist of 21 transcripts totalling approximately 2,470 pages. In relation to civil proceedings, the report states, “Canada confirms that it does not have any civil trial transcripts in relation to St. Anne’s as no civil trials took place with respect to St. Anne’s”.
3. Pursuant to subparagraph 6(c) of the order, Canada would produce any other relevant and non-privileged documents from its St. Anne’s files. These documents were comprised of pleadings, demands for particulars and responses to those demands, notices of discontinuance, dismissal orders and notices of appearance. The report indicated that in all, there were approximately 1,500 of these documents totalling approximately 10,000 pages. However, in accordance with Appendix VIII of the IAP model, these documents would be redacted to protect the plaintiffs’ privacy. Certain other documents would not be produced because they contained solely personal and private information that was irrelevant to other IAP claimants.

[16] In her June 30, 2014 letter, Ms. Coughlan advised that Canada would not produce two types of transcripts, one of which was the examination for discovery transcripts:

Also, as contemplated by Perell J.’s Order, Canada will not produce documents that are subject to solicitor client, litigation or settlement privileges. In this regard, Canada is of the view that there are two types of transcripts that contain extremely personal and painful stories that are not being produced because of settlement privilege and/or undertakings of confidentiality given to the plaintiffs in the context of pre-IRSSA settlements. These are transcripts that were part of an ADR process that led to settlements with Canada and discovery transcripts with other parties who settled prior to the IRSSA. In any event, these documents would have been severely redacted in accordance with the privacy provisions of Appendix VIII. Finally, there are a small number of plaintiffs who did not settle with Canada through the ADR process and later went into the IAP process. Their transcripts are being produced for the IAP hearings of these plaintiffs, according to Appendix XI of the IAP model.

C. DIRECTION

[17] The main and crucial issue to be determined in H15019’s adjourned RFD is whether or not Canada complied with the January 14, 2014 order. That issue can and should be determined before the pending rehearing of H15019’s IAP claim. Depending on the outcome of the main issue it may be necessary to schedule other hearing dates.

[18] At this juncture, I do not accept that Canada should be required to file any affidavit evidence for the purposes of this RFD, and certainly not from counsel appearing for Canada on this matter. All that the court requires is written argument from the parties about whether or not there has been compliance with the January 14, 2014 order.

[19] Having regard to the narrowness of the issue to be determined at this juncture – whether Canada has complied with the January 14, 2014 order in declining to produce the examination for discovery transcripts – I am satisfied that no evidentiary foundation is required beyond Ms. Coughlan’s confirmation in open court that Canada has the examination for discovery transcripts and her letter of June 30, 2014, reporting on Canada’s intended compliance with the January 14, 2014 order, the contents of which are referred to above. There is no factual dispute that the discovery transcripts have not been produced.

[20] I am satisfied that the major issue underlying the RFD can be determined on the basis of written submissions. Therefore, the parties are directed to exchange and file those submissions in accordance with the following schedule and page limits:

• March 3, 2017: Requestor’s submissions (up to 30 pages)
• March 17, 2017: Canada’s submissions (up to 30 pages)
• March 21, 2017: Requestor’s reply submissions, if any (up to 15 pages)

[21] Depending on the outcome of the RFD hearing, further hearings may or may not be necessary.

[22] Costs shall be in the cause.

PERELL J. Released: February 17, 2017

APPENDIX VIII: GOVERNMENT DOCUMENT DISCLOSURE

The government will search for, collect and provide a report setting out the dates a Claimant attended a residential school. There are several kinds of documents that can confirm attendance at a residential school, and as soon as one or more are found which deal with the entire relevant period, further searches will not be undertaken.

The government will also search for, collect and provide a report about the persons named in the Application Form as having abused the Claimant, including information about those persons’ jobs at the residential school and the dates they worked or were there, as well as any allegations of physical or sexual abuse committed by such persons, where such allegations were made while the person was an employee or student.

Upon request, the Claimant or their lawyer will receive copies of the documents located by the government, but information about other students or other persons named in the documents (other than alleged perpetrators of abuse) will be blacked out to protect each person’s personal information, as required by the Privacy Act.

The government will also gather documents about the residential school the Claimant attended, and will write a report summarizing those documents. The report and, upon request, the documents will be available for the Claimant or their lawyer to review.

In researching various residential schools to date, some documents have been, and may continue to be, found that mention sexual abuse by individuals other than those named in an application as having abused the Claimant. The information from these documents will be added to the residential school report. Again, the names of other students or persons at the school (other than alleged perpetrators of abuse) will be blacked out to protect their personal information.

The following documents will be given to the adjudicator who will assess a claim:

• documents confirming the Claimant’s attendance at the school(s);
• documents about the person(s) named as abusers, including those persons’ jobs at the residential school, the dates they worked or were there, and any sexual or physical abuse allegations concerning them;
• the report about the residential school(s) in question and the background documents; and,
• any documents mentioning sexual abuse at the residential school(s) in question.

With respect to student-on-student abuse allegations, the government will work with the parties to develop admissions from completed examinations for discovery, witness or alleged perpetrator interviews, or previous DR or IAP decisions relevant to the Claimant’s allegations.

Footnotes

[1] As reflected in Fontaine v. Canada (Attorney General), 2016 ONSC 4328 (“Preliminary Relief Decision”) at para. 9, the relief sought by Claimant H-15019 in his Amended RFD dated February 11, 2016 can be summarized as follows:

(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 IAP Oversight Committee to conduct a review and make recommendations to the National Administration Committee and the court.

[2] That decision arose from three RFDs; one brought by the Truth and Reconciliation Commission (the “TRC”; itself a creature of the IRSSA), one brought by 60 former students at St. Anne’s IRS who were IAP claimants, and one by Canada, seeking direction as to whether it was required to seek to have the Ontario Provincial Police (“OPP”), a non-party, provide its documents about the 1992-96 criminal investigation into what happened at St. Anne’s IRS. As will be discussed below, the Requestor takes the position that Canada has not complied with certain aspects of the court’s order arising from this decision (the “January 14, 2014 order”).

[3] This is a reference to Appendix VIII to Schedule “D” to the IRSSA. Schedule “D” sets out and describes the IAP. Appendix VIII is attached to this Direction.

[4] Preliminary Relief Decision, paras. 10 and 11. The Amended RFD seeks a direction that Canada file a Responding Application Record including affidavit evidence from two Department of Justice counsel, one of whom (Ms. Coughlan) appears for Canada in relation to this RFD.

[5] Preliminary Relief Decision, paras. 57, 58, 63, 64 and 65.

[6] See Ms. Brunning’s letter to Court Counsel, October 6, 2016. Court Counsel’s reply advised that in the absence of an RFD, the court expected that the re-review would proceed. Further, if it was the Requestor’s position that Canada has failed to comply with a court order, a full record capable of being tested by Canada would be required.

[7] See Ms. Brunning’s letter to Court Counsel, October 12, 2016. Court Counsel advised in reply that this is a matter for the re-review adjudicator to address.

[8] See Ms. Brunning’s letter to Court Counsel, October 26, 2016. In response, Court Counsel advised that the motion would be case managed in the ordinary course and that any request for adjournment of the re-review should be made to the re-review adjudicator, not the court. Ultimately, this motion was scheduled to be heard on March 24, 2017.

[9] See Ms. Brunning’s letter to Court Counsel, November 4, 2016. Court Counsel’s response indicated that the court does not have jurisdiction to adjourn an IAP hearing, which is a matter for the adjudicator.

[10] See Ms. Brunning’s letter to Court Counsel, November 11, 2016. In response, Court Counsel advised that the court “will not hear these matters until such time as all of the processes within the IAP have been exhausted by your clients and a decision has been delivered by the Court of Appeal in the appeal of its decision cited as Fontaine v. Canada (Attorney General), 2016 ONSC 4326 (the “Spanish IRS case”).”

[11] See Ms. Brunning’s letter to Court Counsel, January 24, 2017. In this letter, the Requestor’s counsel abandoned the relief sought in subparagraphs 2(f) and 2(h) of the motion. These forms of relief sought determinations of (1) Canada’s position that none of the new documents (OPP signed witness statements and/or transcripts of criminal proceedings and/or civil proceedings) are admissible in relation to the Requestor’s claim on the bases that the Requestor did not give a statement to the OPP and did not testify in any of the criminal or civil proceedings (subparagraph 2(f)); and (2) whether Canada is bound by an admission in the July 15, 2014 POI report that indicated that the main perpetrator had possible access to the St. Anne’s students for the duration of his posting to the St. Anne’s Catholic Mission (subparagraph 2(h)).

[12] Fontaine v. Canada (Attorney General), 2016 ONSC 7913. This was in relation to the Metatawabin and others RFD, the scheduling of which for March 24, 2017 was made conditional on the Court of Appeal releasing its decision in the appeal of my decision in the Spanish IRS case by February 15, 2017. In fact, on January 16, 2017, the Court of Appeal released its decision, cited as Fontaine v. Canada (Attorney General), 2017 ONCA 26.