COURT FILE NO.: 00-CV-192059 DATE: 20180905 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

Plaintiff - 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-HYACINTHE, 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 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 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 ARCHIÉPISCOPALE CATHOLIQUE ROMAINE DE ST. BONIFACE, LES MISSIONNAIRES OBLATES SISTERS DE ST. BONIFACE-THE MISSIONARY OBLATES SISTERS OF ST. BONIFACE, ROMAN CATHOLIC ARCHIEPISCOPALE 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

PERELL, J.

DIRECTION

A. Introduction

[1] This Direction is made in the context of the Indian Residential Schools Settlement Agreement (“IRSSA” or “Settlement Agreement”). For the reasons set out below, I am directing the Chief Adjudicator of the Independent Assessment Process (“IAP”) to terminate his involvement in pending litigation before various appellate courts arising from the IAP, in which he advances partisan positions. I make this direction because acting as an advocate is outside his proper role, contrary to the scheme of the IRSSA, and contrary to the court orders appointing him Chief Adjudicator.

B. The IRSSA, the IAP, the Chief Adjudicator and the Courts

[2] The IRSSA is Canada’s largest and most complex class action settlement, and it has great historical, judicial, and political significance. Over a decade ago, Canada, representatives of Canada’s Indigenous People, and representatives of the religious organizations that operated Indian Residential Schools negotiated the IRSSA to achieve a “fair, comprehensive and lasting resolution of the legacy of Indian Residential Schools.”

[3] This court is one of nine provincial and territorial superior courts that in December 2006 and January 2007, on substantially identical terms, approved the IRSSA (the “Approval Orders”). On March 8, 2007, the Courts issued orders governing the IRSSA’s implementation, again on substantially identical terms (the “Implementation Orders”).

[4] The Courts that approved the IRSSA have maintained an active and ongoing role in supervising, implementing, and administering the IRSSA. Key to that role are the terms of the IRSSA, a comprehensive and detailed contract, the Courts’ Approval Orders, their Implementation Orders, and the Court Administration Protocol (“CAP”) appended to the Implementation Orders. These documents and orders govern the IRSSA’s administration.

[5] The CAP required each of the Courts to designate one of its members to act as a “Supervising Judge”. In addition, the Courts were obliged to designate two Administrative Judges from among the nine “Supervising Judges”; one “Eastern Administrative Judge” and one “Western Administrative Judge”. [1]

[6] The CAP provides for a simplified and expedited process for the Courts to direct the IRSSA’s implementation and administration known as a “Request for Direction” or “RFD”. However, the exercise of the Courts’ supervisory powers is not contingent on an RFD being filed.

[7] Since September 2013, I am the Eastern Administrative Judge and the Ontario Supervising Judge. My colleague, Justice Brenda Brown of the British Columbia Supreme Court, has served as the Western Administrative Judge and the British Columbia Supervising Judge since 2009.

[8] The Implementation Orders also appoint a lawyer to act as legal counsel to and for the Courts to assist the Courts in their supervision over the Settlement Agreement’s implementation and administration. [2] Since 2013, Brian Gover has been Court Counsel under the IRSSA.

[9] The IAP is a central feature of the IRSSA. The IAP is an elaborate post-settlement claims adjudication process. Through Article 6 and Schedule “D”, the IRSSA established the IAP as the means for survivors to seek compensation for claims of serious physical abuse, sexual abuse, or other wrongful acts. [3]

[10] The Chief Adjudicator’s duties are set out in Schedule “D”, item s(i) of the IRSSA. [4] The Chief Adjudicator is responsible for adjudication of IAP claims and is assisted by an administrative apparatus known as the Indian Residential Schools Adjudication Secretariat (“Adjudication Secretariat” or “Secretariat” ).

[11] It was and is a critical component of the IRSSA that the IAP constitute a genuinely autonomous adjudicative body similar to a court and subject to court supervision.

[12] In cases examining the role of the IAP, the Ontario Court of Appeal has echoed the concerns of Justice Winkler (as he then was) concerning the need for impartiality and neutrality in the operation of the IAP. [5] The Court of Appeal described this aspect of the IRSSA as follows:

[173] A structure was therefore established to provide the necessary level of autonomy. At the top of the structure is the Chief Adjudicator of the Secretariat, who is an officer of the court, appointed pursuant to court order under the IRSSA. The Chief Adjudicator is responsible for the supervision of the IAP and of the adjudicators who decided IAP applications. The Secretariat supports and reports to him. The Chief Adjudicator is accountable to the court.

[13] The Secretariat’s website appropriately describes the Chief Adjudicator’s role, including his accountability to the Courts as follows:

The Chief Adjudicator of the Independent Assessment Process (IAP) is an independent, court-appointed official who directs the work of the Adjudication Secretariat, the administrative body that manages the IAP hearing process.

The Chief Adjudicator (CA) reports directly to the Courts that supervise the Settlement Agreement. The CA is retained on contract to ensure independence and an arms-length relationship exists between the CA and Indigenous and Northern Affairs Canada (INAC). [6]

[14] The materials placed before the Courts when approval of the IRSSA was sought in 2006 disclose that the parties to the IRSSA bargained for court supervision over the IAP and its Chief Adjudicator. [7] Consistent with that bargain, each of the Courts’ Approval Orders provides that “this Court shall supervise the implementation and this judgment, and without limiting the generality of the foregoing, may issue such orders as are necessary to implement and enforce the provisions of the [Settlement] Agreement and this judgment.” [8] Each Implementation Order expressly states that the courts “shall supervise the implementation of the [Settlement] Agreement and this order, and without limiting the generality of the foregoing, may issue such further and ancillary orders as are necessary to implement and enforce the provisions of the [Settlement] Agreement, the [Approval Order] and this order”. [9]

[15] The Ontario Court of Appeal has observed that the Approval Orders and the Implementation Orders “were designed to give effect to the court’s ultimate control of the IAP, through the Chief Adjudicato r”, who is in turn “ accountable to the court.” [10] For present purposes, this last point bears emphasis. The Chief Adjudicator is an instrument of the IRSSA, not a not a stakeholder, not a party, not an advocate for claimants or for itself.

[16] While the structure of the Adjudication Secretariat provides the Chief Adjudicator with the requisite independence from Canada, which funds the Adjudication Secretariat’s operations, the Chief Adjudicator is not independent as judges are. He is both accountable and answerable to the Supervising Courts.

[17] The Implementation Orders also require that the Courts be provided with copies of applications for the position of Chief Adjudicator, that they may make recommendations to the IAP Oversight Committee (described below) and that the selection of the Chief Adjudicator by the IAP Oversight Committee be subject to approval by the Courts. [11]

[18] Daniel Shapiro, Q.C. was appointed Chief Adjudicator by Order of former Chief Justice Winkler, my predecessor as Eastern Administrative Judge and Ontario Supervising Judge. The operative terms of the July 11, 2013 Order provide as follows :

THIS COURT ORDERS THAT Daniel Shapiro, Q.C. be approved as Chief Adjudicator until further order of this court, with the duties and responsibilities as set out in the Indian Residential Schools Settlement Agreement, effective July 29, 2013.

Another instrument of the IRSSA, the IAP Oversight Committee, [12] has a role in overseeing the Chief Adjudicator in accordance with the mandate assigned to it by Schedule “D”, item r(iii). [13]

[19] The IAP Oversight Committee’s role does not and obviously cannot limit the Courts’ plenary responsibilities and powers in supervising the IRSSA’s implementation and administration.

[20] The Supreme Court of Canada has characterized the role of the Supervising Judges as “vital” and described their jurisdiction over the implementation and administration of the IRSSA as both administrative and supervisory. [14] The Supreme Court of Canada has held that the Courts’ jurisdiction in this respect is robust, holding that the Supervising Judges possess broad powers conferred by the Approval Orders, the Implementation Orders, class proceedings legislation and as an incident of the superior courts’ inherent jurisdiction. [15]

C. The Chief Adjudicator’s Quarterly Reports

[21] The Implementation Orders oblige the Chief Adjudicator to report to the Courts at least quarterly , something which the current Chief Adjudicator and his predecessor have been doing since 2007.

[22] Court Counsel has brought to my attention the most recent quarterly report, the “43 rd Quarterly Report to the Courts”, covering the period April 1 through June 30, 2018. It was submitted through Court Counsel on August 17, 2018.

[23] In the 43 rd Quarterly Report, under the heading “External Risks”, the “Message from the Chief Adjudicator” lists court decisions released during that quarter and indicates that with the release of those decisions, external risks to the completion of the IAP have diminished considerably. That portion of the report alludes to two matters ongoing before appellate courts, and does so in the following terms:

There is certainly some risk, with the REO appeal pending before the Supreme Court of Canada, that courts might require certain IAP cases previously decided to be reconsidered in light of judicial recourse decisions. However, the only unresolved case that presently poses serious risks to the timely completion of the IAP is the Scout appeal to the British Columbia Court of Appeal. [16]

[24] Elsewhere, under the sub-heading “Ongoing Legal Actions and Requests for Directions”, the report states:

Despite several cases recently receiving decisions, there remain multiple cases before the Courts at various stages which involve the IAP. Although the majority of the ongoing legal cases involve individual claims, there are still a small number of unresolved cases that could affect the timely completion of the IAP. Responding to such matters, providing information, and preparing for and carrying out court direction, while of crucial importance, is resource-intensive and requires ongoing and challenging analysis and information-gathering work, and can in some cases necessitate delays in resolution for affected files ... [17]

[25] Under the heading, “Objective: Provide Support to the Chief Adjudicator”, the report sets out as a priority “monitor[ing] and respond[ing] to matters before the Courts”. It indicates that “[t]he Secretariat provides support to the Chief Adjudicator on the many Requests for Direction before the Courts” and continues, “As Court counsel reports on these matters before the Courts, we will not duplicate that reporting here.” [18]

[26] The report also refers to 14 re-reviews that are on hold pending decisions from appellate courts and states that as of June 30, 2018, there were 34 cases on hold pending potential future admissions by Canada of staff knowledge of student-on-student abuse. [19]

[27] Unfortunately, the Chief Adjudicator’s 43 rd Quarterly Report to the Courts is incomplete. Court Counsel has brought to my attention a number of unreported matters, including the following:

a The Chief Adjudicator’s Response to Application for Leave to Appeal and his Respondent’s Factum (filed on June 27, 2018) in the appeal to the Supreme Court of Canada in the matter bearing the style of cause of J.W. and REO Law Corporation v. Attorney General of Canada, et al. , SCC Case Number 37725 ;

b The Chief Adjudicator’s Respondent’s Factum in the appeal to the Court of Appeal for British Columbia in the matter bearing the style of cause of Ronnie Gail Scout v. Attorney General of Canada et al. , BCCA File No. CA44378;

c The Chief Adjudicator’s Factum (filed July 9, 2018) in the appeal to the Court of Appeal for British Columbia in the matter bearing the style of cause of Larry Philip Fontaine et al. v. Attorney General of Canada et al. , BCCA File Nos. CA45085 and CA45093; and

d Correspondence from the Chief Adjudicator’s counsel to Court Counsel, dated February 9, 2018 addressing paragraph 100 of Justice Brown’s decision in Fontaine v. Canada (Attorney General) , 2018 BCSC 63 , Court Counsel’s subsequent email to the Chief Adjudicator’s counsel and transcript of proceedings before Justice Brown on February 15, 2018, in which there was discussion of the need to obtain a stay from the British Columbia Court of Appeal.

D. The Chief Adjudicator’s Participation in RFDs

[28] Previously, the Chief Adjudicator has been permitted to participate in the hearing of RFDs before the Courts on the basis that he would provide information but not advocate for a particular outcome. That approach is consistent with the leading authorities about the role of autonomous adjudicative bodies in matters before the courts. See the Supreme Court of Canada’s decision in Ontario (Energy Board) v. Ontario Power Generation Inc. [20] and the Ontario Court of Appeal’s decision in Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner (often referred to as “ Goodis ”) . [21]

[29] The matters that Court Counsel has brought to my attention, discussed further below, demonstrate that the Chief Adjudicator has departed from that practice and has taken to challenging decisions of Supervising Judges – the courts that supervise him, to which he reports and to which he is accountable. The matters that Court Counsel has brought to my attention demonstrate that the Chief Adjudicator has taken on the role of an advocate.

[30] The positions the Chief Adjudicator has taken in those appeals, and their implications, are examined below.

E. The Chief Adjudicator’s Participation in Appellate Proceedings

[31] The Chief Adjudicator’s 43 rd Quarterly Report to the Courts does not refer to his active and partisan involvement in appeals from decisions of Supervising Judges. While the reasons for this omission may be understandable, the omission is not excusable and, more importantly, the Chief Adjudicator’s role as an advocate is beyond his proper role, contrary to the scheme of the IRSSA and contrary to the court orders appointing him Chief Adjudicator .

[32] As will be discussed below, in two of these appeals, the Chief Adjudicator’s partisan involvement has caused him to invite appellate courts to disagree with the very courts that are tasked with supervising him and to which he reports. That is unacceptable.

[33] It bears noting that in each of these proceedings, parties to both sides in the disputes are making submissions. The Chief Adjudicator’s participation, akin to an intervention by an affected party, was not and is not required for a fully informed adjudication. It is unnecessary. It is also ill-advised. Whether the Supervising Courts whose decisions are under appeal agree or disagree with the positions being taken before the appellate courts by the Chief Adjudicator matters not. The point is that the Chief Adjudicator should not be taking positions in matters arising from IAP decisions.

[34] The cases in which the Chief Adjudicator has taken to participate or intervene are unlike the litigation concerning the disposition of IAP records, [22] where the Chief Adjudicator or the Adjudication Secretariat is the custodian of the records and has been assigned a role in the enhanced notice program to ensure that IAP (and ADR) claimants can make informed choices about what should be done with the records pertaining to their IAP (and ADR) claims. There, his active involvement in the litigation was necessary and appropriate as a part of the administration of the IRSSA.

REO Law Appeal (SCC)

[35] In the appeal to the Supreme Court of Canada in J.W. and REO Law Corporation v. Attorney General of Canada, et al. , the Chief Adjudicator portrayed himself as a respondent, opposed leave to appeal being granted and now argues that the IAP claimant, J.W.’s appeal should be dismissed. The Supreme Court of Canada’s website indicates that the appeal is to be argued on October 10, 2018. [23]

[36] In that case, the appeal is from a decision of the Manitoba Court of Appeal, [24] which overturned the decision of Justice Edmond, the Manitoba Supervising Judge in a “judicial recourse” case [25] – that is, an RFD in which resort to one of the Courts was sought following a decision by the Chief Adjudicator or his designate on re-review of a decision determining an IAP claim. The effect of dismissing J.W.’s appeal would be to affirm the dismissal of his IAP claim.

[37] In his respondent’s factum, the Chief Adjudicator characterizes the issue in the appeal as “when a supervisory court can interfere with the determinations made by IAP adjudicators on the interpretation or application of the specialized IAP compensation rules in the course of deciding individual claims”. [26] Although just an instrument of the IRSSA, the Chief Adjudicator submits that the parties to the IRSSA did not intend for individual IAP claims to be appealed to the Courts and that “[t]he mistake made by the [Manitoba] supervising judge was fundamental, because he misapprehended the nature of the exercise he was engaged in.” [27]

[38] This submission goes far beyond a submission about his own jurisdiction and is a submission about the jurisdiction of the Supervising Courts to supervise the IAP.

Scout Appeal (BCCA)

[39] The issue in the Scout appeal to the British Columbia Court of Appeal is whether the Adjudication Secretariat correctly established the deadline for submitting IAP claims. The Adjudication Secretariat set that deadline as September 19, 2012, but the appellant contends that it should have been September 20, 2012. Justice Brown dismissed the RFD on the basis of res judicata , [28] having dismissed an earlier RFD in which the appellant sought an extension of time beyond September 19, 2012 in which to file an IAP claim, [29] a decision that was upheld by the British Columbia Court of Appeal. [30] While this case was mentioned in his report, there was no reference to the Chief Adjudicator’s active participation in the appeal.

[40] In his factum in the Scout appeal, the Chief Adjudicator “offers submissions concerning the background context that should inform the Court’s analysis of whether the Western Administrative Judge erred by failing to exercise her discretion to refuse to apply the doctrine of res judicata .” [31] Although the Chief Adjudicator purports to take no position on the outcome of the appeal, it is apparent that he is weighing in against Ms. Scout (an IAP claimant)’s position. The Chief Adjudicator argues that the appellant’s position challenges the date for the implementation of the IRSSA generally, that the parties to the IRSSA have conducted themselves on the basis that the Implementation Date (from which the IAP application deadline is calculated [32] ) was September 19, 2007, that the parties’ interpretation of the Implementation Date is consistent with the plain language of the IRSSA and that the remedy sought by the appellant amounts to a four year extension of the IAP application deadline. [33]

Appeal from Justice Brown’s Decision re: Canada’s RFD (BCCA)

[41] In a decision released on January 17, 2018 in connection with an RFD brought by Canada, Justice Brown rejected the contention that the administrative law doctrine of procedural fairness could be used to re-open decided IAP claims on the basis of after-acquired information in the form of admissions made by Canada as a result of subsequently decided claims. [34] In doing so, Justice Brown disagreed with the position taken by the Chief Adjudicator and his delegates.

[42] Justice Brown reasoned as follows:

[100] The goal of finality was contracted for and built into the IRSSA. Use by the Chief Adjudicator and his designates of procedural fairness as a means of re-opening IAP claims or holding them in abeyance pending the potential receipt of future relevant SOS Admissions would compromise or defeat that important goal. Most SOS Admissions are made on the basis of decided IAP claims. Applying the reasoning of the Chief Adjudicator and his designates, every claim subsequently decided in a claimant’s favour could beneficially impact on previously dismissed claims. Claims that were dismissed could result in awards and claims where lower awards were made initially could result in higher awards. If the approach propounded by the Chief Adjudicator and his designates is permitted to prevail, finality would be either impossible or very difficult to achieve. That is not what the parties contracted for.

[101] I agree with the position advanced on Canada’s behalf that implying a term into the IAP in the manner the Chief Adjudicator and others are suggesting constitutes an impermissible amendment to the IRSSA and a contravention of the terms of settlement. “Procedural fairness” should not be used as a label to avoid complying with the Settlement Agreement’s clear terms, which preclude admission of new or fresh evidence on review or re-review and restrict reviews to scrutiny of hearing adjudicators’ decisions for an overriding and palpable error, allowing the review adjudicator to “substitute their own decision or order a new hearing”, or a misapplication of the IAP Model, allowing the review adjudicator to correct the hearing adjudicator’s decision. On re-review, the inquiry is limited to whether there was a misapplication of the IAP Model by the review adjudicator. Despite what the Chief Adjudicator and his designates have claimed – for example, at paragraph 145 of the C-14114 Re-Review (Chief Adjudicator Shapiro; August 8, 2017) – what they have been doing is re-opening decided IAP claims, in violation of the IAP Model’s terms.

[102] The ability to act in an impartial manner is a criterion for the selection of IAP Adjudicators and I do not doubt that the IAP Model requires that IAP adjudicators be impartial. It may be that the requirement to act impartially rests on an implied term. But even if procedural fairness could be implied more generally (a proposition that I do not accept), it goes well beyond the proper limits of the concept of procedural fairness to say that the discovery of new evidence is a sufficient basis for re-opening a hearing. As has been submitted on Canada’s behalf, based on the outcome of the re-reviews in H-15019 and C-14114, any resolved IAP claim may be successfully reviewed or re-reviewed in order to assess the claim in light of further evidence. Combined with the Chief Adjudicator’s discretion to extend deadlines for requesting reviews and re-reviews, as demonstrated in the review in P-12110, this would jeopardize the goal of finality.

[103] Used in the context in which the Chief Adjudicator and his designates have used it in the IRSSA, “procedural fairness” is a misnomer, and one which erroneously invokes the administrative law paradigm. The IRSSA is a contract, and while the IAP Model provides an important means of providing redress to those who suffered abuse at IRSs, the courts and their officers such as the Chief Adjudicator and his designates must honour what the parties to that contract negotiated. Neither the courts nor the Chief Adjudicator and his designates should do anything that materially alters the bargain that the parties made. So far as the IAP is concerned, that bargain is set out in the IAP Model. When describing the concept of fairness in that context, the appropriate phrase – and one which should help to ensure that confusion does not arise in the future – is “IAP Model fairness”, for that is what the parties bargained for and the Courts approved. As the Manitoba Court of Appeal has observed, the IAP Model contains features that are not available within the court system, or for that matter, the adversarial process, and those features enure to the benefit of IAP claimants.

[104] The IAP Model contemplated that Canada could make SOS Admissions or provide progressive disclosure after a hearing was concluded that could impact on IAP claims that were yet to be resolved, but it did not provide that claims that had been decided would be re-opened and reconsidered in light of those admissions. [35]

[43] Not only has the Chief Adjudicator deemed it appropriate to participate in appeals taken from Justice Brown’s decision; in doing so, he has taken an overtly partisan position. Excerpts from his factum demonstrate this point:

Opening Statement

“The Chief Adjudicator agrees with the appellants that the supervising judge fundamentally erred in not recognizing that fairness is an essential component of the IAP, which can and must be given effect in review and re-review decisions.”

“The supervising judge erred in holding that if the initial hearing proceeds without the benefit of [admissions made by Canada about staff knowledge about student-on-student abuse as a result of subsequently decided cases ], the importance of finality means that there can be no remedy for claimants.”

“By holding that IAP adjudicators cannot remedy a breach of procedural fairness, the supervising judge’s decision unduly privileges Canada’s interest in minimizing its liability, and deprives some IAP claimants of what the IRSSA promised …”

Paragraph 40

“The supervising judge erred in finding that by relying on procedural fairness the Chief Adjudicator and his designates have ‘erred in implying a term into the IRSSA for which the parties did not contract.”

Paragraph 41

“The supervising judge’s error in not recognizing the importance of fairness in the administration and application of the IAP led her to further err by giving undue precedence to the values of finality and efficiency over justice to claimants. The result was a blanket rejection of the possibility of reconsidering claims in light of information not previously available, based on an erroneous interpretation of the IAP as demanding the final conclusion of claims even in the face of manifest injustice.” “The supervising judge erred when she found that the Chief Adjudicator and his designates had impermissibly ‘undermined the finality of the determination of individual IAP claims’.”

Paragraph 43

“Once it is accepted that the principles of fairness and natural justice apply in the IAP and may, in appropriate circumstances, require claims to be reconsidered, it is clear that the supervising judge erred in holding that the Chief Adjudicator had acted contrary to the IAP Model in the cases under review.” “The supervising judge erred when she failed to show any deference to the determinations made by the Chief Adjudicator about what the IAP Model required, despite her own decisions to this effect.”

Paragraph 44

“The supervising judge also erred in holding that any specific provisions of the IAP prohibited review and re-review adjudicators from providing remedies to claimants prejudiced by the timing of Canada’s disclosures and admissions.”

Paragraph 46

“The supervising judge cited no authority for her conclusion that procedural fairness did not apply to the IAP. Her basis for this conclusion seems to be three-fold [and] none of these conclusions can be supported.”

Paragraph 51

“The supervising judge began her reasons by noting that because of the contractual and sui generis nature of the IAP, it is ‘wrong’ to import administrative law concepts into the IAP and that ‘[a]nalogizing IAP adjudicators to administrative tribunals is inapt’ (para. 5). With respect, the Chief Adjudicator does not agree.”

Paragraph 59

“The supervising judge’s ruling is inconsistent with the case law about the IAP, decided both before and after the decision under appeal, including decisions of the same supervising judge.”

Paragraph 64

“The supervising judge assumes that the parties intended to exclude the application of principles of procedural fairness generally, but nonetheless intended certain of those principles to be applied. The better approach is that the parties intended all such principles to be applicable unless specifically excluded.”

Paragraph 85

“The Chief Adjudicator submits that the supervising judge misapprehended the IAP Model.”

Paragraph 92

“The consequences of the supervising judge failing to show deference to adjudicators are evident in the errors and misapprehensions of the IAP contained in her judgment. As Independent Counsel explain at para. 73-76 of their factum, the supervising judge misapprehended the term ‘progressive disclosure,” which relates to sexual assault survivors’ ability to disclose the details of the abuse they suffered, and instead applied it to alter the nature of Canada’s disclosure obligations.”

Paragraph 101

“As noted, the supervising judge accepted that the IAP Model requires independent adjudication. But if she is right that new hearings can never be ordered to remedy a misapplication of the model, it would not be possible to order a new hearing to remedy any real or apparent bias. This cannot be correct.”

Paragraph 102

“The supervising judge acceded to Canada’s request with almost no analysis of the decisions made by adjudicators steeped in the IAP. In doing so, she not only privileged finality over justice, but allowed Canada to escape liability and gain advantage from procedural errors – including some of its own making.”

Paragraph 103

“The supervising judge erred in not recognizing the authority of IAP adjudicators in this regard [i.e., ensuring that the IAP Model is implemented in a manner consistent with the principles of procedural fairness and natural justice], and in not giving deference to the Chief Adjudicator’s interpretation of the IAP that numerous cases have found is due.”

Paragraph 104

“The Chief Adjudicator asks that the appeal be allowed.”

[44] It can be seen that the Chief Adjudicator’s factum does not just go a little too far. This is beyond the pale. It is overtly partisan. It amounts to open defiance of the Court and is nothing short of insubordination. The Chief Adjudicator – a creature of the IRSSA, not a stakeholder or a party to it, and certainly not someone privy to the negotiations leading up to it – also takes it upon himself to make submissions as to what the parties to the IRSSA intended. [36]

[45] Troublingly, despite the Chief Adjudicator’s discussion of other cases before various courts (including appellate courts) in his 43 rd Report to the Courts, there is no mention of this case at all – let alone the Chief Adjudicator’s participation in the appeal and the positions he has taken in it.

F. Partisan Advocacy

[46] The Chief Adjudicator’s active and partisan involvement in the appeals described above causes two significant concerns for the court. One of my concerns is there is a possible appearance of compromised impartiality. Partisan advocacy or the appearance of bias is antithetical to the role of a neutral decision-maker.

[47] Both Ontario (Energy Board) , supra and Goodis, supra make clear that a tribunal whose decision is under review is not automatically entitled to standing at common law, and a primary consideration in whether they should be permitted to address the court is the importance of maintaining tribunal impartiality. [37] As the Supreme Court of Canada put it in Ontario (Energy Board) , “[t]he principle of impartiality is implicated by tribunal argument on appeal, because decisions in some cases may be remitted to the tribunal for further consideration.” [38]

[48] Should the Supreme Court of Canada allow the appeal in J.W. and REO Law Corporation v. Attorney General of Canada, et al. , J.W.’s IAP claim will be remitted to the Chief Adjudicator for consideration. Given the Chief Adjudicator’s adversarial position to the one taken on behalf of J.W., how could J.W. expect an impartial determination of his claim?

[49] Similarly, if the British Columbia Court of Appeal allows her appeal and remits her IAP claim to the Adjudication Secretariat for hearing, what would Ms. Scout think about her chances for an impartial hearing?

[50] It is worth noting here that the IRSSA’s Administrative Judges have previously considered it necessary to direct the Chief Adjudicator to abstain from activity that could compromise his impartiality. Several years ago, the Chief Adjudicator took an active role in investigating allegations of misconduct on the part of IAP claimants’ counsel. In a Joint Direction issued on November 25, 2014, the Administrative Judges said [at para. 26]:

26. What is at stake has been described by the Federal Court of Appeal as “the principle of impartiality”. A tribunal’s active and even aggressive participation in disputes between participants in proceedings before them and those participants’ lawyers can compromise and discredit its impartiality. Adjudicators should not be perceived as claimants’ champions in disputes between claimants and their own lawyers. If left unchecked, this could result in a reasonable apprehension of bias.

27. … The involvement of the Chief Adjudicator in investigating the conduct of counsel and initiating proceedings before the supervising courts creates a problem that the courts can and should avoid. Motions for disqualification should be avoided, if possible …

28. The courts’ concern about compromising the principle of impartiality is a real one. As Canada has submitted, “[t]he integrity of the IAP requires that the Chief Adjudicator and IAP Adjudicators be seen as impartial and without bias” … [39]

[51] Unfortunately, the Chief Adjudicator has not applied the spirit of that guidance to the matters described above and has now taken partisan positions before the appellate courts.

G. Challenging the Decisions of the Supervising Courts

[52] The other concern is that without disclosing in his reports that he is challenging the Court’s supervision of the IAP, the Chief Adjudicator has taken to challenging decisions of his supervising courts. This makes a mockery of his reporting obligations and makes it impossible for the Supervising and Administrative Courts to properly carry out their supervisory and administrative role under the IRSSA.

[53] It is impossible to square the Chief Adjudicator’s role as a functionary of the Courts (with limited standing on matters before them) with his current practice of challenging the decisions of those very courts.

[54] I pause here to note that when the Chief Adjudicator’s standing was challenged in the British Columbia Court of Appeal on a previous occasion, Justice Groberman permitted him to participate as an intervenor, on the express understanding that his submissions would be limited to questions of jurisdiction and standard of review, and would not touch on the merits. [40] It appears that the Chief Adjudicator did not understand the important message delivered by the British Columbia Court of Appeal.

[55] The Chief Adjudicator has not only chosen to participate in several appeals but has amplified that partisan position and now defies the Courts to which he is accountable.

[56] It is no answer for the Chief Adjudicator to point out that the Supreme Court of Canada and the British Columbia Court of Appeal have afforded him an audience. His standing in the pending appeals, and in particular his standing to make partisan arguments, has not been adjudicated and he obviously did not advise the Supreme Court of his prescribed and limited role under the IRSSA.

[57] In connection with Canada’s RFD, his defiance goes even further. His counsel advised the Court that he intended to put on hold re-review cases that engaged what were called “procedural fairness” issues. Madam Justice Brown directed that the matter be spoken to in open court, and she made it clear that for cases to be put on hold, a stay from the Court of Appeal would be required. No stay has been sought. Nevertheless, as the Chief Adjudicator’s 43 rd Report to the Courts reflects, [41] the Chief Adjudicator put a hold on the cases anyway.

H. Conclusion

[58] As is acknowledged on the Adjudication Secretariat’s website, the Chief Adjudicator reports to the Courts. As the Ontario Court of Appeal has put it, he is accountable to the Courts. As the Supreme Court of Canada has recognized, the Courts possess a robust jurisdiction over the implementation and administration of the IRSSA, one that is both administrative and supervisory.

[59] In my view, the Chief Adjudicator’s actions amount to insubordination of the Courts to which he is accountable through the Approval Orders and the Implementation Orders, and his conduct runs the risk of compromising his impartiality or of having the risk of an appearance of a compromised impartiality.

[60] I regard these unreported activities of the Chief Adjudicator as outside his proper role, contrary to the scheme of the IRSSA, and contrary to the court orders appointing him. These circumstances necessitate urgent corrective action on the part of this court. I have consulted with Justice Brown and she agrees.

I. Direction

[61] Given the foregoing, I direct as follows:

a By 5:00 p.m. Eastern Daylight Time (3:00 p.m. Central Standard Time) on Thursday, September 13, 2018, the Chief Adjudicator shall

i Direct the counsel he has retained to represent him to immediately terminate involvement in:

1 the appeal to the Supreme Court of Canada in the matter bearing the style of cause of J.W. and REO Law Corporation v. Attorney General of Canada, et al. , SCC Case Number 37725 ,

2 the appeal to the Court of Appeal for British Columbia in the matter bearing the style of cause of Ronnie Gail Scout v. Attorney General of Canada et al. , BCCA File No. CA44378, and

3 the appeal to the Court of Appeal for British Columbia in the matter bearing the style of cause of Larry Philip Fontaine et al. v. Attorney General of Canada et al. , BCCA File Nos. CA45085 and CA45093,

ii Direct the counsel he has retained to represent him to immediately request the registries of the following Courts to remove from the court files the facta filed on behalf of the Chief Adjudicator in relation to:

1 the appeal to the Supreme Court of Canada in the matter bearing the style of cause of J.W. and REO Law Corporation v. Attorney General of Canada, et al. , SCC Case Number 37725 ,

2 the appeal to the Court of Appeal for British Columbia in the matter bearing the style of cause of Ronnie Gail Scout v. Attorney General of Canada et al. , BCCA File No. CA44378,

3 the appeal to the Court of Appeal for British Columbia in the matter bearing the style of cause of Larry Philip Fontaine et al. v. Attorney General of Canada et al. , BCCA File Nos. CA45085 and CA45093,

iii Bring this Direction to the attention of the Supreme Court of Canada and the Court of Appeal for British Columbia, and

iv Provide written confirmation to Court Counsel that he has complied with items i, ii and iii, above.

b If by 5:00 p.m. Eastern Daylight Time (3:00 p.m. Central Standard Time) on Thursday, September 13, 2018, the Chief Adjudicator does not comply with the above direction,

i. Court Counsel shall bring this Direction to the attention of the Supreme Court of Canada and the Court of Appeal for British Columbia, and

ii. Daniel Shapiro, Q.C. shall appear before me on September 20, 2018 to show cause why the Order approving his appointment as Chief Adjudicator should not be rescinded.

c From the date of this Direction, legal fees incurred by the Chief Adjudicator shall not be paid unless payment is authorized by Court Counsel; and

d Court Counsel shall forthwith bring this Direction to the attention of: (a) the Chief Adjudicator; (b) the Chair of the IAP Oversight Committee; (c) the Chair of the National Administration Committee; (d) counsel for the parties in each of (1) J.W. and REO Law Corporation v. Attorney General of Canada, et al. , SCC Case Number 37725 , (2) Ronnie Gail Scout v. Attorney General of Canada et al. , BCCA File No. CA44378, and (3) Larry Philip Fontaine et al. v. Attorney General of Canada et al. , BCCA File Nos. CA45085 and CA45093, and (e) each of the Supervising Judges.

PERELL J.

Released: September 5, 2018

COURT FILE NO.: 00-CV-192059 DATE: 20180905 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

DIRECTION

Perell, J.

Released: September 5, 2018

Footnotes

[1] Court Administration Protocol, paragraph 1.

[2] Implementation Orders, paragraph 12.

[3] The other means of compensation under the IRSSA is the Common Experience Payment (or “CEP”). As that term suggests, the CEP was designed to compensate for the IRS experience and the attendant lack of connection with family and loss of culture and language.

[4] These duties are to: • Assist in the selection of adjudicators. • Implement training programs and administrative measures designed to ensure consistency among the decisions of adjudicators in the interpretation and application of the IAP. • Assess on an ongoing basis the other training and mentoring needs of adjudicators and develop appropriate programs. • Assign adjudicators to hearings and reviews or to assist with settlement discussions. • Provide advice to adjudicators on compliance with this IAP. • Prepare for consideration by the Oversight Committee any proposed instructions to better give effect to the provisions of the IAP. • Receive complaints about the performance of adjudicators and as appropriate meet with adjudicators to discuss concerns and develop remedial actions to resolve same. • Determine, in his or her exclusive authority, whether to terminate or renew the contract of an adjudicator. • Conduct reviews as provided for in item l(i) above, or assign such to designates approved by the Oversight Committee. • Set the policies and standards for the Secretariat and direct its operations. • Make the final decision on a request by a Claimant for a reconsideration of a decision by the Secretariat that their application to this IAP process fails to allege matters which can be resolved within it. • Conduct hearings as he or she determines appropriate, provided that designates have been approved for the purpose of item l(i) above. • Carry out all other functions assigned by this IAP. • Prepare annual reports to the Oversight Committee on the functioning of the adjudicative process under this IAP.

[5] See Fontaine v. Canada (Attorney General) , 2016 ONCA 241 at para. 171 , referring to Baxter v. Canada (Attorney General) at paras. 37-38 .

[6] http://www.iap-pei.ca/about-eng.php .

[7] See the Affidavit of Leonard S. Marchand, sworn July 27, 2006, subparagraph 20(z) (the IAP is an improvement over the pre-IRSSA ADR process in that it is ultimately overseen by the National Administration Committee and the Courts, and not Canada), accessible on the IRSSA Official Court Website at http://www.classactionservices.ca/irs/PDFs/JointMotionRecordVOL4.pdf and the Affidavit of Richard Courtis, sworn July 27, 2006, paragraph 101 (“[T]he entire implementation of the settlement, including the IAP, will ultimately be subject to judicial supervision”), accessible on the IRSSA Official Court Website at http://www.classactionservices.ca/irs/PDFs/JointMotionRecordVOL5.pdf .

[8] See, for example, the Order of Winkler, R.S.J., dated December 15, 2006, paragraph 13.

[9] See, for example, the Order of Winkler, R.S.J., dated March 7, 2007, paragraph 23.

[10] Fontaine v. Canada (Attorney General) , 2016 ONCA 241 at paras. 172-173 .

[11] See, for example, the Order of Winkler, R.S.J., dated March 7, 2007, paragraph 8.

[12] Schedule “D”, item r (i) provides that the IAP Oversight Committee “shall be composed of an independent chair and 8 other members, two reflecting the interests of each of the following constituencies: former students; plaintiffs’ counsel; church entities; government”. Currently there are no former students on the IAP Oversight Committee. The Assembly of First Nations has not had a representative on the committee since November 29, 2017, when (now) Justice Paul Favel was appointed to the Federal Court. After a period of illness, Les Carpenter, the Inuit Representatives’ representative of the on the IAP Oversight Committee, died in early July, 2018. Neither has been replaced.

[13] Schedule “D”, item r (iii) provides as follows: iii. The duties of the Oversight Committee are to: • Recruit and appoint, and if necessary terminate the appointment of, the Chief Adjudicator. • Provide advice to the Chief Adjudicator on any issues he or she brings to it. • Recruit and appoint adjudicators, and approve training programs for them. • Approve designates to exercise the Chief Adjudicator’s review authority as set out in item l(i) above. • On the advice of the Chief Adjudicator, renew or terminate the contract of an adjudicator. • Recruit and appoint experts for psychological assessments. • Consider any proposed instructions from the Chief Adjudicator on the interpretation and application of the IAP Model, and as appropriate prepare its own instructions or forward proposed instructions from the Chief Adjudicator for approval by the National Administration Committee, provided that: o no instruction may alter pages 2-6 of this IAP, nor the interpretation of those pages set out elsewhere in this IAP, nor the provisions of the IAP allocating claims to the standard or complex issues tracks or requiring expert evidence or medical assessments; and, o instructions only come into force when approved by the National Administration Committee and published by the Oversight Committee, and only bind participants who have had at least two weeks notice of the instructions before their hearing. • Monitor the implementation of the IAP and make recommendations to the National Administration Committee on changes to the IAP as are necessary to ensure its effectiveness over time.

[14] Canada (Attorney General) v. Fontaine , 2017 SCC 47 at para. 31 .

[15] Canada (Attorney General) v. Fontaine , 2017 SCC 47 at paras. 32-33 .

[16] 43 rd Quarterly Report to the Courts, p. 5. As the report sets out at p. 9, the Scout Appeal is an appeal from Justice Brown in which it is contended that the Adjudication Secretariat erroneously set September 19, 2012 as the IAP application deadline when in fact it ought to have been September 20, 2012, one day later.

[17] 43 rd Quarterly Report to the Courts, p. 16.

[18] 43 rd Quarterly Report to the Courts, pp. 25-26.

[19] 43 rd Quarterly Report to the Courts, p. 10.

[20] 2015 SCC 44 .

[21] 2005 11786 (ON CA) .

[22] Canada (Attorney General) v. Fontaine , 2017 SCC 47 , aff’g Fontaine v. Canada (Attorney General) , 2016 ONCA 241 , substantially aff’g Fontaine v. Canada (Attorney General) , 2014 ONSC 4585 .

[23] See https://www.scc-csc.ca/case-dossier/info/dock-regi-eng.aspx?cas=37725.

[24] The Attorney General of Canada v. J.W. and Reo Law Corporation et al. , 2017 MBCA 54 .

[25] Fontaine v. Canada (Attorney General) , 2016 MBQB 159

[26] Respondent’s Factum (filed on June 27, 2018) in the appeal to the Supreme Court of Canada in the matter bearing the style of cause of J.W. and REO Law Corporation v. Attorney General of Canada, et al. , SCC Case Number 37725 , para. 2.

[27] Ibid ., para. 119.

[28] Fontaine v. Canada (Attorney General) , 2017 BCSC 418 .

[29] Fontaine v. Canada (Attorney General) , (5 May 2014), (BCSC) L051875.

[30] Fontaine v. Canada (Attorney General) , 2015 BCCA 95 .

[31] Factum of the Chief Adjudicator of the Indian Residential Schools Adjudication Secretariat, para. 16.

[32] Section 1.01 of the IRSSA defines “IAP Application Deadline” as meaning “the fifth anniversary of the Implementation Date ”. Section 6.02(1) provides that “[a] pplications to the IAP will not be accepted prior to the Implementation Date or after the IAP Application Deadline .”

[33] Factum of the Chief Adjudicator of the Indian Residential Schools Adjudication Secretariat , “Opening Statement” and paras. 20-33.

[34] Fontaine v. Canada (Attorney General) , 2018 BCSC 63 .

[35] Ibid ., paras. 100-104 (footnotes deleted).

[36] Factum of the Chief Adjudicator, Indian Residential Schools Adjudication Secretariat, Opening Statement and paras. 40, 43, 45 and 76.

[37] Ontario (Energy Board) at para. 57 ; Goodis at para. 43 .

[38] Ontario (Energy Board) at para. 50 .

[39] Joint Direction of Brown and Perell JJ, released on November 25, 2014, paras. 26, 27, 29 (footnotes deleted).

[40] N.N v. Canada (Attorney General) , 2017 BCCA 398 .

[41] Chief Adjudicator’s 43 rd Report to the Courts, p, 10.