COURT FILE NO.: 00-CV-192059 DATE: 20170710 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 or IAP Claimant H-15019
- No one appearing for the Attorney General of Canada
HEARD: July 10, 2017 and in writing
PERELL, J.
REASONS FOR DECISION
A. Introduction
[1] In these reasons, I treat a request made by email sent to Court Counsel on Friday, July 7, 2017 at 2:24 p.m. ET as an ex parte request for interim relief on behalf of IAP Claimant H-15019 (the “Requestor”. I do so in the role of a “supervising judge”, that is, one tasked with overseeing the ongoing administration of the Indian Residential Schools Settlement Agreement (“IRSSA”).
[2] The salient portions of that email read as follows:
The issue is urgently arising in the context of the re-hearing of the evidence in IAP Claim H-15019 next week …
Due to Canada’s position (that certain civil pleadings are “untested” or alternatively, inadmissible unless the plaintiff testified directly before the IAP Adjudicator), next week two of the plaintiffs/IRSSA class members from St. Anne’s (an Indian Residential School that existed in Fort Albany, Ontario) are testifying in the re-hearing of IAP Claim H-15019. Their civil pleadings contain allegations about sexual abuse support (sic) the testimony of Claimant H-15109 and plead that he/she complained to adults at St. Anne’s about the sexual abuse. Both have provided their signed witness statements to Canada. Both of the plaintiff/IRSSA class members who are testifying as witnesses in the IAP process have confirmed that he/she was previously tested by lawyers for the federal government and the Catholic Church at St. Anne’s IRS and both confirm that he/she was subsequently paid a settlement by the defendants. Both of the plaintiffs/IRSSA class members consent to disclosure of the portions of his/her discovery transcript about the abuse and complaints to/punishments by other supervisors, for this IAP hearing. Neither witness has previously been given a copy of his/her own transcript. Canada refuses to produce any portion of those transcripts to the witness, and refuses to produce (them) to just the IAP adjudicator. The IAP re-hearing adjudicator has found that he has no authority to compel Canada to provide these transcripts to the witnesses, to the Adjudicator or to myself.
Will the Court hear an urgent motion in RFD of Claimant H-15019, on Monday or Tuesday morning, for production of those transcripts to the two witnesses and the IAP adjudicator and myself, prior to the witnesses testifying again. I am seeking the Order to be procedurally fair to the witnesses, and to allow the IAP adjudicator to give each witness the option to adopt he previous sworn testimony. Claimant C-14114 will benefit from the testimony of these two plaintiffs/IRSSA class members as well, if their evidence is accepted at an IAP hearing. The dismissal of the RFD of Claimant H-15019 is under appeal, so the dismissal is stayed. The Administrative Judge of the IRSSA remains seized of all IRSSA matters. The Court is aware that Claimant H-15019 is very vulnerable. I can file the two witnesses statements in evidence. (emphasis in original)
B. Procedural History
[3] The Requestor’s RFD has come before me on two previous occasions. In its decisions in both instances, the court was concerned with ensuring that all of the processes made available through the IAP were exhausted before recourse to the court was sought, that the jurisdiction of IAP adjudicators is respected, and that the court acts within its own jurisdiction.
[4] In his RFD, the Requestor alleged that Canada had not met its disclosure obligations under the IAP and sought a new hearing of his IAP claim based on a revised record that would be compliant with those obligations. The Requestor also sought directives as the procedural and evidentiary rules for the re-opened IAP hearing.
[5] In May, 2016, I heard submissions from the parties in relation to preliminary relief sought in the Requestor’s RFD. At the risk of some simplification, that relief included (1) confidentiality orders; (2) summons to witness orders that compel evidence from two Department of Justice lawyers including Canada’s lead counsel, other representatives of Canada, the Chief Adjudicator, an IAP Adjudicator, an IAP Review Adjudicator, and Catholic Church Entities; (3) the disqualification of Canada’s lead counsel; and (4) an advance costs order. Canada submitted that the requests for preliminary relief were premature because the Requestor had not completed the review process made available within the IAP. In addition, Canada consented to both a re-review, notwithstanding the expiration of applicable timelines, and to the production of the revised Narrative and POI reports for consideration by the Re-Review Adjudicator.
[6] My decision was released on July 5, 2016 and is cited as Fontaine v. Canada (Attorney General), 2016 ONSC 4328. I concluded that the Requestor’s RFD was premature as was the included request for preliminary relief. In the result, confidentiality orders were made but the balance of the Requestor’s motion for preliminary relief was adjourned sine die, with the proviso that the motion could brought on for a hearing, if necessary, after his Re-Review hearing. Costs were left on the basis that if the RFD were subsequently resumed, the costs of the motion would be in the cause; if it were not subsequently resumed, there would be no order as to costs.
[7] In that decision, I raised concerns about aspects of the RFD. I noted that it appeared that the Requestor’s counsel wished to use the RFD “as a public commission of inquiry about the integrity of the IAP”. Disclosure of highly confidential IAP documents was sought for reasons that went beyond the Requestor’s immediate needs for a fair and just determination of his IAP claim.
[8] In the months following the release of the decision on the preliminary issues, a number of events occurred that are related to IAP claims arising out of the operation of St. Anne’s IRS and the Requestor’s RFD. By letter dated October 3, 2016, counsel for the Mushkegowuk Council advised that his client was discontinuing its RFD, citing concerns about costs exposure. Within days, the court was advised that Mr. Metatawabin and the PKKA and Claimant K-10106 would pursue an RFD seeking essentially the same relief.
[9] In addition, there was correspondence between the Requestor’s counsel and Court Counsel on a number of topics, including whether Canada had complied with the court’s January 14, 2014 Order. That Order had been made in consequence of the court’s decision in Fontaine v. Canada (Attorney General), 2014 ONSC 283 and resulted in production of approximately 12,000 documents by Canada. Ms. Brunning sought return of the adjourned RFD. On my behalf, Court Counsel reiterated that the matter was before an IAP Adjudicator; any request to adjourn the new IAP hearing should be made to the IAP Adjudicator, not the court.
[10] In the meantime, this RFD was scheduled for hearing on March 24, 2017, but as a result of a decision made on December 14, 2016, that hearing was again adjourned sine die. That decision, cited as Fontaine v. Canada (Attorney General), 2016 ONSC 7913 was made in the context of a preliminary motion for costs immunity that was brought by Edmund Metatawabin, IAP Claimant K-10106, and Peetabeck Keway Keykaywin Association (St. Anne’s Survivors Association or “PKKA”, an association of former students of St. Anne’s IRS who speak for claimants but are not claimants themselves), who were represented by Ms. Brunning and Mr. Swinwood and, like the Requestor, were concerned with IAP claims arising out of the operation of St. Anne’s IRS. I ordered that a standing and jurisdiction motion in the Metatawabin and others RFD then before the court be heard on March 24, 2017, provided that the Court of Appeal releases its decision in the then recently heard RFD appeal by February 15, 2017.
[11] On January 16, 2017, the Court of Appeal released its decision. In that decision, the Court of Appeal provided guidance as to the circumstances in which a Supervising Judge can intervene in the IAP. For present purposes, suffice it to say that for such intervention to be warranted, a Re-Review Adjudicator’s decision must be shown to be “so unreasonable or exceptionally wrong that it amounted to a failure to enforce the IRSSA or the IAP model”.
[12] On January 24, 2017, Ms. Brunning again wrote to Court Counsel, 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.”
[13] As a result of Ms. Brunning’s January 24, 2017 letter and the earlier correspondence and email correspondence over the next day, I convened a case management conference in court on February 7, 2017. Counsel for the Requestor, Canada and the law firm of Nelligan O’Brien Payne attended. On February 17, 2017, I issued a direction that the issue of Canada’s compliance with the January 14, 2014 Order be dealt with by way of written submissions, and set a timetable for the exchange of the parties’ submissions.
[14] Those submissions were exchanged, and on April 24, 2017, my decision was released. In that decision, cited as Fontaine v. Canada (Attorney General), 2017 ONSC 2487, I recounted the history leading up to the making of the January 14, 2014 Order, and pointed out that the decision on which that Order was based must now be read and interpreted in the light of the Ontario Court of Appeal’s 2017 decision, referred to above. In connection with the companion RFD of Mr. Metatawabin, PKKA and IAP Claimant K-10106, I further noted the guidance provided by the Court of Appeal as to the very narrow circumstances in which a Supervising Judge can intervene in the IAP. The Court of Appeal’s decision characterized the IAP model as a complete code.
[15] But the decision as to whether Canada had complied with the January 14, 2104 Order turned on a very significant letter dated June 30, 2014, in which counsel for Canada reported to the court concerning its intended compliance with that Order. As stated in the decision:
[78] … In that letter, Canada’s counsel indicated that:
- Pursuant to subparagraph 6(a) of the January 2014 Order, Canada would produce the OPP documents in its possession.
- Pursuant to subparagraph 6(b), Canada would produce the transcripts of criminal proceedings in its possession about the abuse at St. Anne’s IRS.
- Canada was not in possession of any civil trial transcripts in relation to St. Anne’s IRS because no civil trials took place with respect to that IRS.
- Pursuant to subparagraph 6(c), Canada would produce any other relevant and non-privileged documents from its St. Anne’s IRS files. These documents were comprised of pleadings, demands for particulars, responses to those demands, notices of discontinuance, dismissal orders, and other such documents.
- Canada would not produce examination for discovery transcripts of those parties who had settled with Canada prior to the IRSSA because these transcripts were subject to settlement privilege and undertakings of confidentiality given to the plaintiffs in the context of the pre-IRSSA settlements.
[79] On the matter of the discovery transcripts, the relevant part of Canada’s reporting letter stated:
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.
[16] I concluded that Canada did not breach the IRSSA agreement or the IAP Model in transparently refusing to produce the discovery transcripts of the Cochrane civil proceedings and dismissed his RFD. In doing so, I agreed with Canada’s argument that the reference to transcripts of civil and criminal proceedings in my January 2014 Order was not meant to include any and all transcripts of discovery evidence from previous civil proceedings, especially discoveries designed for settlement purposes. I also addressed the deemed undertaking attaching to documentary discovery and examinations for discovery in the following terms:
[121] Although the issues in Claimant H-15019’s IAP proceeding are similar to those at issue in the St. Anne’s civil litigation, Claimant H-15019 is a non-party to the St. Anne’s litigation and to the undertakings given in that case. Thus, Claimant H-15019 has a heavy burden to demonstrate that the deemed undertaking should be lifted in this case. (I pause here to note parenthetically that it is worth recalling that Justice Trainor was very careful not to order the production of the Cochrane OPP documents of non-plaintiffs to the plaintiffs of the Cochrane civil proceedings.)
[122] As Canada argues, the discovery transcripts in the St. Anne’s litigation are akin to IAP hearing transcripts and contain extremely sensitive and personal information. The discovery evidence was given with the understanding that it would not be used for purposes other than the proceeding in which it was given, and consent to disclosure of this information has not been obtained from the plaintiffs in the Cochrane civil proceedings. Further, protection of confidentiality is consistent with the goal of reconciliation underlying the IRSSA process. Canada is right to be reluctant to agree to disclosure of this information, as doing so could undermine the goals of the IRSSA process. As such, the decision to order disclosure of this information should only be made where the interests of justice clearly outweigh the harm to the individual who provided the evidence.
[123] In my opinion, this is not a case where the undertaking should be lifted. At his new hearing, Claimant H-15019 will have the benefit of the additional information about St. Anne’s IRS produced pursuant to the January 2014 Order. He will have the benefit of all of the non-privileged, relevant documents in the St. Anne’s civil litigation including pleadings, demands for particulars, and responses to those demands. He will also have the OPP reports with respect to the police investigation of activities at St. Anne’s IRS.
[124] I also agree with Canada that the discovery documents from the Cochrane civil litigation are covered by settlement privilege, and I disagree with Claimant H-15019’s submission that Canada has not met the evidentiary burden of showing that the discoveries were communications made with a view to reconciliation or settlement.
[17] In short, I concluded that Canada did not breach the IRSSA and it provided a transparent explanation as to why the balance of the Cochrane documents has not been produced. The documents are confidential and privileged.
C. Analysis
[18] Because my analysis of the issues has been set out in the procedural history in the previous section, only a summary is provided here. The processes provided by the IAP have not been exhausted. IAP Adjudicators have specialized expertise and are owed deference. It remains premature for the court to become involved. In addition, the Court of Appeal has recently restated that the circumstances in which a Supervising Judge can intervene in the IAP must be truly exceptional. Applying those principles to this case, it is simply far better to allow the process to continue without intervention by the court.
[19] Moreover, contrary to the what is reflected in Ms. Brunning’s email of July 7, 2017 (excerpted in paragraph 2, above), the mere fact that the dismissal of the RFD of Claimant H-15019 is under appeal does not operate to stay that decision as it did not relate to the payment of money: see Rules 63.01 and 63.02 of the Rules of Civil Procedure.
D. Conclusion
[20] For the above reasons, I dismiss this ex parte request for interlocutory relief as premature and without ruling on the merits of the court’s jurisdiction to grant the relief requested. There shall be no order as to costs.
Perell, J. Released: July 10, 2017