Fontaine et al. v. The Attorney General of Canada et al.

[Indexed as: Fontaine v. Canada (Attorney General)]

Ontario Reports

Court of Appeal for Ontario,

Strathy C.J.O., Sharpe and MacFarland JJ.A.

April 4, 2016

130 O.R. (3d) 1 | 2016 ONCA 241

Case Summary

Civil procedure — Class proceedings — Settlement — Administration — Settlement agreement which resolved class actions by aboriginal persons who attended residential schools providing for Independent Assessment Process ("IAP") for serious claims of abuse — Supervising judge not erring in finding that only claimants may consent to archiving of IAP documents and that consent of alleged perpetrators is not required — IAP documents not government records and therefore not subject to Library and Archives of Canada Act, Access to Information Act or Privacy Act — Supervising judge's order that IAP documents be destroyed after 15-year retention period unless claimants consented to their archiving being reasonable — Access to Information Act, R.S.C. 1985, c. A-1 — Library and Archives of Canada Act, S.C. 2004, c. 11 — Privacy Act, R.S.C. 1985, c. P-21.

Class actions by aboriginal survivors of residential schools were resolved by the Indian Residential Schools Settlement Agreement ("IRSSA"). One component of the IRSSA was the Independent Assessment Process, a mechanism for compensating survivors who suffered particularly serious abuse or harm. Under the IAP, survivors could apply for additional compensation above a minimum given to all class members. They were required to submit an application form with information about their residential school experience. Claimants were given assurances of confidentiality. The parties also agreed to establish the Truth and Reconciliation Committee ("TRC") to create a historical record of the residential school system. The IRSSA was silent with respect to the disposition of the documents created within the IAP. The chief adjudicator of the IAP and the TRC each brought a request for directions about what was to happen to those documents. The supervising judge held that only claimants had a right to decide whether or not their own documents should be archived, and that other individuals and institutions affected, including the alleged perpetrators, did not have a veto over that right. He held that the IAP documents were not government documents and that the Library and Archives of Canada Act, the Privacy Act and the Access to Information Act did not apply to them. He ordered that the documents be retained for a 15-year period, during which survivors could decide whether they wanted to transfer their documents to the National Centre for Truth and Reconciliation ("NCTR"). The TRC and the NCTR were to notify survivors of their option to transfer documents to the NCTR. At the end of the 15-year period, all IAP documents in the possession of others, including the government, were to [page2 b]e destroyed. The Catholic entities appealed the order that the IAP documents were to be archived at the request of the claimants alone. Canada cross-appealed, arguing that the IAP documents were government documents.

Held, the appeal and the cross-appeal should be dismissed.

Per Strathy C.J.O. (MacFarland J.A. concurring): The standard of review of the supervising judge's findings on questions of contractual interpretation was reasonableness. The government records issue should be reviewed for correctness.

The supervising judge correctly found that only IAP claimants had the right to decide whether or not their documents should be archived. The Catholic entities relied on s. 11 of Schedule N of the IRSSA, which states: "Insofar as agreed to by the individuals affected and as permitted by process requirements, information from the Independent Assessment Process (aeIAP'), existing litigation and Dispute Resolution processes may be transferred to the Commission for research and archiving purposes". However, Schedule N deals primarily with the TRC, not the IRP, and it refers only to the transfer of IAP documents to the TRC by those responsible for administering the IAP. If s. 11 were read as giving others a say in the archiving of IAP documents, it would eviscerate other provisions of the IRSSA that give IAP claimants control over their IAP documents. Moreover, the absence of a requirement for consent by members of the Catholic entities would not breach any rights of those members. Any disclosure of information under the terms of the IRSSA flowed directly from the agreement the Catholic entities signed on behalf of their members. They and their members thereby surrendered certain rights in exchange for significant benefits. Having agreed to the terms of the IRSSA, the Catholic entities could not now complain of the loss of any rights they thereby surrendered.

The notice program was not a material amendment to the IRSSA. It fell within the supervising judge's administrative discretion.

The IAP documents were not under the control of a government institution and were not, therefore, government records. The documents were in the possession of the Residential Schools Adjudication Secretariat (the "secretariat") and the Settlement Agreement Operations Branch ("SAO"). Both of those institutions fell under Aboriginal Affairs and Northern Development Canada ("AANDC"), which was a government institution. However, the secretariat, overseen by the chief adjudicator, enjoyed significant, judicially mandated and judicially protected independence from AANDC for the administration of the IAP. The IAP documents were under the control of the chief adjudicator, not AANDC. The SAO was not an autonomous branch of AANDC. However, as a litigant, its possession of information and documents obtained through the IAP was limited to the purposes for which they were provided -- to litigate the IAP claims. That constraint on its possession was through the court's inherent jurisdiction, and based on the rationale underlying the implied undertaking rule. The IAP documents were not under its control.

The decision to destroy the IAP documents after a 15-year retention period was reasonable. The supervising judge found that near to absolute confidentiality was a necessary aspect of the IAP. The claimants relied on the confidentiality assurances in the IRSSA. Without those assurances, the IAP would not have functioned. The supervising judge also found that the IAP documents contained extremely private and intimate personal information and that the claimants would be further abused if the contents of the documents were made available to future generations. His order was a reasonable response to an administrative gap over what to do with highly sensitive documents after their intended use had [page3 b]een fulfilled. The length of the retention period was reasonable. However, it was unreasonable to order the TRC and NCTR to conduct the notice program. The chief adjudicator should do so instead. The supervising judge's order should also be varied to include documents produced in the alternative dispute resolution process that preceded the IRSSA.

Per Sharpe J.A. (dissenting in part): For the reasons given by the chief justice, the appeals of the Catholic entities should be dismissed.

Canada's cross-appeal should be allowed. IAP documents held by Canada through the SAO were government records and were therefore subject to the Library and Archives of Canada Act, the Privacy Act and the Access to Information Act. The implied undertaking rule had no application to the IAP documents. Moreover, it would be contrary to the interests of justice to destroy the IAP documents. The IAP process was an important aspect of a significant moment in Canadian history, and the decisions it produced provide a unique window on Canada's struggle to come to grips with the horrors of residential schools.

Canada (Information Commissioner) v. Canada (Minister of National Defence), [2011] 2 S.C.R. 306, [2011] S.C.J. No. 25, 2011 SCC 25, 416 N.R. 105, 2011EXP-1524, J.E. 2011-834, 331 D.L.R. (4th) 513, 201 A.C.W.S. (3d) 425; MacDonald v. Chicago Title Insurance Co. of Canada (2015), 127 O.R. (3d) 663, [2015] O.J. No. 6350, 2015 ONCA 842, 341 O.A.C. 299, [2016] I.L.R. I-5826, 61 R.P.R. (5th) 1, 392 D.L.R. (4th) 463, 260 A.C.W.S. (3d) 402,

consd

Fontaine v. Canada (Attorney General), [2014] M.J. No. 290, 2014 MBCA 93, 310 Man. R. (2d) 162, [2014] 12 W.W.R. 211, [2015] 1 C.N.L.R. 162, 245 A.C.W.S. (3d) 737, distd

Other cases referred to

Al Rawi v. The Security Service, [2011] UKSC 34, [2012] 1 A.C. 531; Andersen Consulting v. Canada, 2001 CanLII 22032 (FC), [2001] F.C.J. No. 57, [2001] 2 F.C. 324, 199 F.T.R. 150, 9 C.P.C. (5th) 245, 102 A.C.W.S. (3d) 1052 (T.D.); Attorney General of Belize v. Belize Telecom Ltd., [2009] UKPC 10, [2009] 1 W.L.R. 1988; Baxter v. Canada (Attorney General) (2006), 2006 CanLII 41673 (ON SC), 83 O.R. (3d) 481, [2006] O.J. No. 4968, 40 C.P.C. (6th) 129, 153 A.C.W.S. (3d) 1044 (S.C.J.); Bodnar v. Cash Store Inc., [2011] B.C.J. No. 947, 2011 BCSC 667, 202 A.C.W.S. (3d) 449; Canada (Information Commissioner) v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 950, 2002 FCA 270, [2003] 1 F.C. 219, 291 N.R. 236, 1 Admin. L.R. (4th) 270, 21 C.P.R. (4th) 30, 115 A.C.W.S. (3d) 2; Canada Post Corp. v. Canada (Minister of Public Works), 1995 CanLII 3574 (FCA), [1995] F.C.J. No. 241, [1995] 2 F.C. 110, 179 N.R. 350, 30 Admin. L.R. (2d) 242, 60 C.P.R. (3d) 441, 53 A.C.W.S. (3d) 695 (C.A.), affg 1993 CanLII 2970 (FC), [1993] F.C.J. No. 531, [1993] 3 F.C. 320, 64 F.T.R. 62, 19 Admin. L.R. (2d) 230, 50 C.P.R. (3d) 253, 41 A.C.W.S. (3d) 1 (T.D.); Canadian Broadcasting Corp. v. National Capital Commission, 1998 CanLII 7774 (FC), [1998] F.C.J. No. 676, 147 F.T.R. 264, 79 A.C.W.S. (3d) 1093 (T.D.); Canadian Imperial Bank of Commerce v. Canada (Canadian Human Rights Commission), [2007] F.C.J. No. 1113, 2007 FCA 272, 283 D.L.R. (4th) 513, 367 N.R. 307, 60 C.C.E.L. (3d) 178, [2008] 2 F.C.R. 509, 70 Admin. L.R. (4th) 62, 160 A.C.W.S. (3d) 202; Fantl v. Transamerica Life Canada (2009), 95 O.R. (3d) 767, [2009] O.J. No. 1826, 2009 ONCA 377, 72 C.P.C. (6th) 1, 249 O.A.C. 58; [page4 <]i>Fontaine v. Canada (Attorney General), [2015] A.J. No. 376, 2015 ABQB 225, [2015] 4 C.N.L.R. 69, 97 Admin. L.R. (5th) 146, 253 A.C.W.S. (3d) 1; Fontaine v. Canada (Attorney General), [2015] O.J. No. 2881, 2015 ONSC 3611, [2015] 4 C.N.L.R. 51, 255 A.C.W.S. (3d) 251 (S.C.J.); Fontaine v. Canada (Attorney General), [2006] Y.J. No. 130, 2006 YKSC 63, 35 C.P.C. (6th) 134; Fontaine v. Canada (Attorney General), [2014] O.J. No. 195, 2014 ONSC 283, [2014] 2 C.N.L.R. 86 (S.C.J.); Fontaine v. Canada (Attorney General) (2013), 114 O.R. (3d) 263, [2013] O.J. No. 406, 2013 ONSC 684, [2013] 2 C.N.L.R. 172, 50 Admin. L.R. (5th) 283, 225 A.C.W.S. (3d) 962 (S.C.J.); Fontaine v. Canada (Attorney General), [2012] B.C.J. No. 1154, 2012 BCSC 839; Goodman v. Rossi (1995), 1995 CanLII 1888 (ON CA), 24 O.R. (3d) 359, [1995] O.J. No. 1906, 125 D.L.R. (4th) 613, 83 O.A.C. 38, 12 C.C.E.L. (2d) 105, 37 C.P.C. (3d) 181, 56 A.C.W.S. (3d) 267 (C.A.); Hamilton v. Open Window Bakery Ltd., [2004] 1 S.C.R. 303, [2003] S.C.J. No. 72, 2004 SCC 9, 235 D.L.R. (4th) 193, 316 N.R. 265, J.E. 2004-470, 184 O.A.C. 209, 40 B.L.R. (3d) 1, [2004] CLLC Â210-025, 128 A.C.W.S. (3d) 1111; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 2002 SCC 33, 211 D.L.R. (4th) 577, 286 N.R. 1, [2002] 7 W.W.R. 1, J.E. 2002-617, 219 Sask. R. 1, 10 C.C.L.T. (3d) 157, 30 M.P.L.R. (3d) 1, 112 A.C.W.S. (3d) 991; Juman v. Doucette, [2008] 1 S.C.R. 157, [2008] S.C.J. No. 8, 2008 SCC 8, 75 B.C.L.R. (4th) 1, [2008] 4 W.W.R. 1, 50 C.P.C. (6th) 207, EYB 2008-130634, J.E. 2008-501, 290 D.L.R. (4th) 193, 372 N.R. 95, 164 A.C.W.S. (3d) 765; Lavier v. MyTravel Canada Holidays Inc., [2013] O.J. No. 674, 2013 ONCA 92, 302 O.A.C. 194, 35 C.P.C. (7th) 240, 359 D.L.R. (4th) 713, 223 A.C.W.S. (3d) 778; Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773, [2002] S.C.J. No. 55, 2002 SCC 53, 214 D.L.R. (4th) 1, 289 N.R. 282, J.E. 2002-1156, 114 A.C.W.S. (3d) 365; Lindsey v. Le Sueur (1913), 1913 CanLII 574 (ON CA), 29 O.L.R. 648, [1913] O.J. No. 168, 15 D.L.R. 809 (C.A.); Marks & Spencer Plc. v. BNP Paribas Securities Services Trust Co. (Jersey) Ltd., [2015] UKSC 72, [2015] 3 W.L.R. 1843; M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd., 1999 CanLII 677 (SCC), [1999] 1 S.C.R. 619, [1999] S.C.J. No. 17, 170 D.L.R. (4th) 577, 237 N.R. 334, [1999] 7 W.W.R. 681, J.E. 99-859, 69 Alta. L.R. (3d) 341, 232 A.R. 360, 49 B.L.R. (2d) 1, 44 C.L.R. (2d) 163, 3 M.P.L.R. (3d) 165, REJB 1999-11937, 87 A.C.W.S. (3d) 681; Nova Scotia (Attorney General) v. MacIntyre, 1982 CanLII 14 (SCC), [1982] 1 S.C.R. 175, [1982] S.C.J. No. 1, 132 D.L.R. (3d) 385, 40 N.R. 181, 49 N.S.R. (2d) 609, 65 C.C.C. (2d) 129, 26 C.R. (3d) 193, EYB 1982-149378, 7 W.C.B. 154; Ontario v. Criminal Lawyers' Assn. of Ontario, [2013] 3 S.C.R. 3, [2013] S.C.J. No. 43, 2013 SCC 43, 363 D.L.R. (4th) 17, 300 C.C.C. (3d) 137, 291 C.R.R. (2d) 265, 447 N.R. 111, 308 O.A.C. 347, 2013EXP-2543, J.E. 2013-1364, EYB 2013-225080, 4 C.R. (7th) 1, 108 W.C.B. (2d) 211; P. (D.) v. Wagg (2004), 2004 CanLII 39048 (ON CA), 71 O.R. (3d) 229, [2004] O.J. No. 2053, 239 D.L.R. (4th) 501, 187 O.A.C. 26, 184 C.C.C. (3d) 321, 46 C.P.C. (5th) 13, 120 C.R.R. (2d) 52, 130 A.C.W.S. (3d) 1098 (C.A.); R. v. Caron, [2011] 1 S.C.R. 78, [2011] S.C.J. No. 5, 2011 SCC 5, 329 D.L.R. (4th) 50, 411 N.R. 89, 2011EXP-427, 97 C.P.C. (6th) 205, 14 Admin. L.R. (5th) 30, 37 Alta. L.R. (5th) 19, 499 A.R. 309, 264 C.C.C. (3d) 320, J.E. 2011-232, EYB 2011-185762, [2011] 4 W.W.R. 1, 93 W.C.B. (2d) 265; R. v. Cunningham, [2010] 1 S.C.R. 331, [2010] S.C.J. No. 10, 2010 SCC 10, 399 N.R. 326, 2010EXP-1163, J.E. 2010-626, EYB 2010-171414, 317 D.L.R. (4th) 1, 73 C.R. (6th) 1, 254 C.C.C. (3d) 1, 283 B.C.A.C. 280, 87 W.C.B. (2d) 70; R. v. Sheppard, [2002] 1 S.C.R. 869, [2002] S.C.J. No. 30, 2002 SCC 26, 210 D.L.R. (4th) 608, 284 N.R. 342, J.E. 2002-582, 211 Nfld. & P.E.I.R. 50, 162 C.C.C. (3d) 298, 50 C.R. (5th) 68, 52 W.C.B. (2d) 360; Reynolds v. Godlee (1858), 4 K. & J. 88, 70 E.R. 37; Rubin v. Canada (Minister of Foreign Affairs and International Trade), [2001] F.C.J. No. 698, 2001 FCT 440, 204 F.T.R. 313, 34 Admin. L.R. (3d) 68, 12 C.P.R. (4th) 466, 105 A.C.W.S. (3d) 362 (T.D.); Sattva Capital Corp. v. Creston Moly Corp., [2014] 2 S.C.R. 633, [2014] S.C.J. No. 53, 2014 SCC 53, 2014EXP-2369, J.E. 2014-1345, 373 D.L.R. (4th) 393, [2014] 9 W.W.R. 427, 59 B.C.L.R. (5th) 1, 461 N.R. 335, 25 B.L.R. (5th) 1, 358 B.C.A.C. 1, 614 W.A.C. 1, 242 A.C.W.S. (3d) 266

Statutes referred to

Access to Information Act, R.S.C. 1985, c. A-1 [as am.], ss. 2, 3 [as am.], 4 [as am.], (1) [as am.], 19, (1), 25

Charter of Human Rights and Freedoms, C.Q.L.R., c. C-12 [as am.]

Civil Code of Québec, C.Q.L.R., c. C-1991 [as am.] [page5 ]

Library and Archives of Canada Act, S.C. 2004, c. 11 [as am.], Preamble, ss. 2 [as am.], 7, 12, (1)

Limitations Act, 2002, S.O. 2002, c. 24, Sch. B [as am.]

National Archives of Canada Act, R.S.C. 1985 (3rd Supp.), c. 1 [rep. by S.C. 2004, c. 11, s. 55]

Privacy Act, R.S.C. 1985, c. P-21 [as am.], ss. 2, 3 [as am.], 7, 8 [as am.], (2), (j) [as am.], (m)(i), (3) [as am.], 9, 10 [as am.], 12 [as am.]

Rules and regulations referred to

Privacy Regulations, SOR/83-508, ss. 4 [as am.], 6, (a), (c)

Authorities referred to

Jacob, Sir Jack, "The Inherent Jurisdiction of the Court" (1970), Curr. Legal Probs. 23

Matthews, Paul, and Hodge M. Malek, Discovery (London: Sweet & Maxwell, 1992)

Osborne, Philip H., The Law of Torts, 5th ed. (Toronto: Irwin Law, 2015)

APPEAL AND CROSS-APPEAL from the orders of Perell J. (2014), 122 O.R. (3d) 1, [2014] O.J. No. 3638, 2014 ONSC 4585 (S.C.J.) under the Indian Residential Schools Settlement Agreement.

Charles Gibson and Ian Houle, for Sisters of St. Joseph of Sault Ste. Marie.

Janine Harding, for twenty-two Catholic entities.[^1] [page6 ]

Pierre Baribeau and Paul Lepsoe, for nine Catholic entities.[^2]

Peter Grant, Diane Soroka and Sandra Staats, for independent counsel.

Gary Penner and Diane Fernandes, for Attorney General of Canada.

Julian N. Falconer and Julian Roy, for Truth and Reconciliation Commission of Canada.

Joanna Birenbaum, for National Centre for Truth and Reconciliation.

Kate Wilson and Regan Morris, for Privacy Commissioner of Canada.

Stuart Wuttke, for Assembly of First Nations.

Joseph Arvay, Q.C., Catherine Boies Parker and Susan Ross, for chief adjudicator of the Indian Residential Schools Adjudication Secretariat.

STRATHY C.J.O. (MACFARLAND J.A. concurring): —

A. Introduction

The treatment of children in Indian Residential Schools is a sad chapter in our history.

For more than a century, Indian Residential Schools separated over 150,000 Aboriginal children from their families and communities. In the 1870's, the federal government, partly in order to meet its obligation to educate Aboriginal children, began to play a role in the development and administration of these schools. Two primary objectives of the Residential Schools system were to remove and isolate children from the influence of their homes, families, traditions and cultures, and to assimilate them into the dominant culture. These objectives were based on the assumption Aboriginal cultures and spiritual beliefs were inferior and unequal. Indeed, some sought, as it was infamously said, "to kill the Indian in the child". Today, we recognize that this policy of assimilation was wrong, has caused great harm, and has no place in our country.

Statement of Apology of the Right Honourable Stephen Harper,

on behalf of the Government of Canada,

June 11, 2008

[1] These historic words prefaced the Canadian government's formal apology for Canada's role in the Indian residential school system. That apology recognized the enduring harm done to the children who attended the schools and to aboriginal culture, heritage and language. [page7 ]

[2] For over a century, the Canadian government removed aboriginal children from their families and communities and placed them in schools funded by Canada and operated by religious organizations. There, many were inadequately fed, clothed and housed. Many were abused, physically, emotionally and sexually. Their languages and cultural practices were prohibited.

[3] Canada's apology committed the country to a journey of healing, reconciliation and recovery, to remedy some of the harm done by the schools and to forge a new relationship with aboriginal communities.

[4] This appeal and cross-appeal are about a part of that journey -- the Independent Assessment Process ("IAP") provided by the Indian Residential Schools Settlement Agreement, dated May 8, 2006 ("IRSSA").

[5] The IRSSA is a comprehensive settlement of class actions and other litigation by former residential school students. The IAP is one component of that settlement -- a mechanism to compensate survivors who suffered sexual abuse, physical abuse or serious psychological harm.

[6] Under the IAP,[^3] a survivor can apply for additional compensation above a minimum given to all class members. He or she is required to submit an application form with information about their residential school experience, including details of the abuse and its impact on his or her life.

[7] The claim is then assessed after a confidential hearing conducted by a trained adjudicator. The claimant gives oral evidence and other witnesses, including alleged perpetrators, may also testify. After the hearing, the adjudicator releases a decision, awarding compensation in appropriate cases.

[8] Many of the stories are horrific. The retelling is frequently traumatic for survivors, as they relive the abuse they suffered as children. But, if the compensation and healing goals are to be achieved, they need to come forward to tell their stories. Every possible measure has been taken to encourage them to do so, and to ensure that they may do so in a private, sensitive and non-adversarial environment. They are given assurances of confidentiality. Without these assurances, many would not participate.

[9] The appeal and cross-appeal concern the disposition of the highly confidential documents created within the IAP. These include the survivors' application forms, the written and audio records of their own evidence about their abuse and suffering [page8 a]nd the compensation decisions written about their claims by the adjudicators (collectively, the "IAP documents").

[10] These appeals raise the question whether the survivors control the stories of their residential school experiences or whether others do. Will every survivor's story be preserved -- even against his or her wishes and at the risk of future disclosure -- in a government archive? Or is the survivor entitled to decide what happens to the story -- to share it with others or to take it to the grave?

[11] The supervising judge held that other individuals and institutions affected, including the alleged perpetrators and the churches, do not hold a veto over the survivors' right to share their own IAP documents. He also held that the court, not the government, controls the IAP documents and that federal legislation does not require their archiving at the government's discretion. The court was required to give effect to the survivors' wishes about their own stories. He ordered there be a 15-year retention period, during which survivors could decide whether they wanted to transfer their documents to the National Centre for Truth and Reconciliation ("NCTR"). The Truth and Reconciliation Commission ("TRC") or the NCTR would notify survivors of their option to transfer their documents to the NCTR. At the end of the 15-year period, all IAP documents in the possession of others, including the government, would be destroyed.

[12] On the appeal, the Sisters of St. Joseph of Sault Ste. Marie, the twenty-two Catholic entities and the nine Catholic entities (together, the "Catholic entities") appeal the supervising judge's order that the IAP documents may be archived at the NCTR at the request of the IAP claimant alone. They say the IRSSA expressly provides that archiving may only take place with their consent. Independent counsel agrees with the Catholic entities that the consent of everyone affected is needed before any IAP documents may be transferred to an archive.

[13] On the cross-appeal, Canada, supported by the TRC and the NCTR, says that it controls the IAP documents and that they are subject to federal privacy, access to information and archiving legislation. The chief adjudicator and the Assembly of First Nations ("AFN") disagree and generally support the supervising judge's decision. They say that the records in the possession of everyone but class members should ultimately be destroyed. Class members will have the right to archive their statements and to transfer their IAP documents to the NCTR, but the choice is theirs. Independent counsel also assert that the notice program should not be run by the TRC or NCTR, that the retention period for IAP documents should be lowered to two [page9 y]ears, and that the order should include documents from the alternative dispute resolution ("ADR") process.

[14] For the reasons that follow, I would dismiss the Catholic entities' appeal and the cross-appeals of Canada, the TRC and the NCTR. I would, however, vary the order below to give effect to independent counsel's submissions on the administration of the notice program and the ADR documents.

B. Background

(1) The IRSSA

[15] In November 2003, in the wake of individual lawsuits and class actions on behalf of former residential school students, Canada established a voluntary ADR process to compensate survivors.

[16] Discussions continued with a view to a global settlement of the outstanding litigation. In May 2005, Canada and the AFN agreed to negotiate a settlement to compensate survivors and to provide a process for truth and reconciliation and healing.

[17] These discussions culminated in the execution of the IRSSA. The parties were Canada; the plaintiffs as represented by the AFN, Inuit representatives, independent counsel and others; and the United, Anglican, Presbyterian and Roman Catholic Churches, and other Catholic entities.

[18] The settlement merged all existing class actions and all pending individual actions. It established a national class of some 79,000 former students who resided at residential schools before December 31, 1997.

[19] The goals of the IRSSA, as set out in the preamble, are to achieve a "fair, comprehensive and lasting resolution of the legacy of Indian Residential Schools" and to promote healing, education, commemoration, and truth and reconciliation.

[20] The IRSSA achieves these goals in four ways: (a) compensation to former students of residential schools; (b) a truth and reconciliation process; (c) healing programs; and (d) resolution of all outstanding litigation.

[21] The first goal, compensation, has two components: the Common Experience Payment ("CEP") and the IAP. The CEP is a minimum amount payable to all former residential school students. Canada established a $1.9 billion fund for the payment of the CEP to all class members who were alive as of May 30, 2005. Those class members are entitled to compensation of $10,000 for their first year of attendance at a residential school and $3,000 for each subsequent year. [page10 ]

[22] Compensation through the IAP is in addition to the CEP and is payable to former students who were victims of serious abuse. This is an enhancement of the ADR process established in 2003, which had resolved about 1,000 claims by the time of settlement approval. Canada agreed to fund the IAP to the extent necessary to ensure its implementation.

[23] The second goal, reconciliation, was addressed by the establishment of the TRC. Canada provided $60 million for the work of the TRC and a further $20 million for commemorative projects. The TRC was intended to be a process for reconciliation and to create a permanent public record of the residential school system. The IRSSA provided that a national centre, ultimately the NCTR, would be created for research and public information on residential schools.

[24] The third goal, healing, was facilitated by the establishment of the Aboriginal Healing Foundation to fund culturally appropriate healing programs. Canada agreed to pay $125 million as an endowment for the foundation.

[25] The fourth goal, resolution of all outstanding litigation, was addressed by the terms of the settlement. Class members are deemed to have released Canada and the Church entities from all their claims in exchange for the payments and other benefits under the IRSSA.

[26] The agreement required the approval of the supervising courts of nine provinces and territories.[^4] In Baxter v. Canada (Attorney General) (2006), 2006 CanLII 41673 (ON SC), 83 O.R. (3d) 481, [2006] O.J. No. 4968 (S.C.J.), Winkler J., then supervising judge for Ontario, approved the IRSSA subject to concerns being addressed about the lack of independence of the planned administration and implementation of the settlement. By January 2007, the supervising courts had approved the settlement as being fair, reasonable and in the best interests of class members.

[27] The approval orders incorporate all the terms of the IRSSA and confirm the court's jurisdiction to supervise the implementation of the settlement. The Ontario Superior Court order approving the IRSSA [at para. 157] states "this Court shall supervise the implementation of the Agreement 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 Agreement and this Judgment". [page11 ]

[28] In March 2007, the supervising courts issued identical implementation orders. These orders reaffirm the need for the courts to oversee and supervise the implementation and administration of the agreement.

(2) The IAP

[29] The IAP is ongoing, with all first hearings expected to be completed this year.

[30] Under the IAP, specially selected and trained adjudicators hear and decide claims for compensation by former students who were victims of sexual abuse, serious physical abuse and wrongful acts resulting in serious psychological consequences. Compensation for abusive acts and consequential harm is limited to $275,000, and compensation for consequential income loss can be awarded up to $250,000. There is a right to access the courts in complex cases, cases of catastrophic harm, or claims for more substantial income loss or loss of opportunity.

[31] Compensation is assessed depending on the nature of the acts, the consequential harm and the presence of specified aggravating factors. Compensation is payable for incidents of abuse by adults as well as for student-on-student abuse.

[32] Schedule D to the IRSSA, one of many schedules, deals with the IAP. Although 49 pages long, nowhere does the Schedule, or indeed the IRSSA itself, directly address what is to become of the IAP documents after the process is completed.

[33] Schedule D contains a provision providing for the archiving of a complainant's IAP hearing evidence, if he or she wishes. A provision in a separate schedule, dealing with the TRC, stipulates that information from the IAP can be transferred to the TRC for research and archiving purposes, "[i]nsofar as agreed to by the individuals affected". That provision, set out below, is the focus of the Catholic entities' appeal.

Application for the IAP

[34] To initiate the IAP, a claimant submits an application form to the Indian Residential Schools Adjudication Secretariat ("secretariat"). The application is then forwarded to the government and to the church entity that operated the school in question. The Settlement Agreement Operations Branch ("SAO"), a branch within Aboriginal Affairs and Northern Development Canada ("AANDC"), carries out Canada's functions as a defendant in these claims.

[35] The application is to be shared only "with those who need to see it", to assist the government with its defence or to assist the church entity with its ability to defend the claim or with [page12 ]insurance coverage. Every person with whom the application is shared is required to respect its confidentiality.

[36] If the application is given to an alleged perpetrator, information on the residence of the claimant and of any witness is redacted. Information on the effects of the abuse on the claimant is not to be provided to an alleged perpetrator, except with the consent of the claimant.

[37] The relevant section of Schedule D concludes as follows:

Copies [of the application] will be made only where absolutely necessary, and all copies other than those held by the Government will be destroyed on the conclusion of the matter, unless the Claimant asks that others retain a copy, or unless counsel for a party is required to retain such copy to comply with his or her professional obligations.

[38] Canada relies on this provision, particularly the words "other than those held by the Government", in support of its argument that the application forms and other IAP documents are "government records" and thus subject to the federal privacy and access to information regime.

[39] A guide to the IAP application was prepared to assist claimants in filing their applications.[^5] Claimants are required to provide detailed information in the application, in their own words, concerning the abuse they suffered. The guide notes that completing the application form can be an emotionally painful experience and states that claimants who are resolving their IAP claims will have access to emotional health and wellness support services. A health support program has been in place, supported by Health Canada service providers.

[40] The application form notes that because the Privacy Act, R.S.C. 1985, c. P-21 protects personal information, Health Canada requires the claimant's permission to ask other government departments for information about the claimant and their claim. The application form gives permission to Library and Archives Canada and other government departments to share the applicant's records with AANDC. It also gives AANDC permission to share information with Health Canada for the purpose of confirming eligibility for health support services. [page13 ]

[41] Appendix B to the guide is entitled "Protection of your personal information". On the first page of this document, under the heading, "Level of security", it says:

We will treat your Application Form with care and confidentiality. This means that security rules are in place to protect your Application Form. The Government of Canada uses the "Protected B" security level for sensitive and personal information. Once you submit it, we will treat your Application Form as a "Protected B" document.

[42] Under the heading "Privacy and Information Laws", the guide states:

The Privacy Act is the federal law that controls the way the government collects, uses, shares and keeps your personal information. The Privacy Act also allows people to access personal information about themselves.

The Access to Information Act is the federal law that allows access to government information. However, it protects certain kinds of information, including personal information.

We will deal with personal information about you and other people you identify in your claim privately and confidentially. We will do so in accordance with the Access to Information Act, the Privacy Act, and any other applicable law, or we will ask your permission to share information.

In certain situations, the government may have to give personal information to certain authorities. For example, in a criminal case before the courts the government may have to give information to the police if they have a search warrant. Another example is when the government has to give information to child welfare authorities or the police if the government finds out that a child needs protection. The government will also share personal information with people involved in resolving your claim, as we describe in the section "Sharing your personal information with others" on the next page.

You can find more information about these laws on the internet at www.priv.gc.ca.

[43] The guide states, under the heading "Collection of personal information":

Personal information in your Application Form and all documents we gather for your claim are collected only so we can (1) operate and administer this Independent Assessment Process and (2) resolve your residential school claim.

(Emphasis added)

[44] The document specifies the parties with whom the claimant's application will be shared. These include witnesses, the adjudicator, alleged perpetrators, church representatives, if involved in the resolution of the claim, and Health Canada, if providing counselling support.

[45] The document concludes, under the heading "Keeping your records": [page14 ]

The Privacy Act requires the government to keep your personal information for at least two years. Currently, the government keeps this information in the National Archives for 30 years, but this practice can change at any time. Only the National Archivist can destroy government records.

The IAP hearing

[46] IAP hearings are closed to the public. Participants, including the claimants, Canada's representatives and alleged perpetrators are required to sign agreements to keep confidential everything disclosed at the hearing, except their own evidence "or as required by law". The claimant agrees that that they will not disclose any information presented at the hearing "except my own evidence or as required within the IAP or otherwise by law".

[47] Claimants are entitled to have a support person present at the hearing "to ensure the health and safety of the Claimant during a stressful event". Counsellors, or ready access to counselling services, are to be available as well. At the claimant's request, a cultural ceremony, such as an opening prayer or a smudge, can be incorporated into the hearing.

[48] The hearing is inquisitorial, rather than adversarial. Adjudicators are specially trained to conduct the hearing in a way that is respectful to the claimant and conducive to obtaining a full description of his or her experience. Counsel for Canada has no right to cross-examine the claimant. Instead, counsel for Canada and the claimant meet with the adjudicator to suggest questions, but the questioning itself is done by the adjudicator. The alleged perpetrator has no right of confrontation -- that is, no right to cross-examine the claimant, either personally or through counsel.

[49] Until 2012, it was common practice for adjudicators to give assurances to claimants and alleged perpetrators that their testimony would be kept confidential to the people in the hearing room. When the TRC began to request IAP records, and it became apparent that the issue might have to be addressed by the courts, the chief adjudicator sent a direction to all adjudicators. He asked them not to "give iron-clad assurances about confidentiality but to advise claimants and other participants that the information is protected by law, will be handled securely and seen by those who have a legitimate need to see it".

[50] Proceedings at the IAP hearing are recorded and are transcribed to facilitate report writing by adjudicators and for any review hearing that may occur. A claimant, but no one else, is entitled to receive a transcript of his or her evidence "for memorialization".

[51] Claimants were to be given the option of having the transcript deposited in an archive. As the supervising judge found, [page15 ]that never happened for the roughly 38,000 survivors who had submitted applications for the IAP, about 30,000 of which had been resolved at the time of his decision. The notice program, at issue in this appeal, addresses this gap.

IAP decisions

[52] Claimants are entitled to receive a copy of the adjudicator's decision, redacted to remove identifying information about any alleged perpetrators. They are free to discuss the outcome of their hearing, including the amount of any compensation they are awarded.

(3) The TRC

[53] The IRSSA also established the TRC, with a mandate, among other things, to create a record of the residential schools system that was to be accessible to the public for future use. The NCTR was to archive and store the records collected by the TRC, together with the records of the history of residential schools.

[54] The truth and reconciliation process is separate from the compensatory aspects of the IRSSA. The TRC was established to contribute to the goals of truth, reconciliation and healing. It was intended to be victim-centred, confidential when requested, and a means for former students and others to come forward to tell their stories, if they wished. As such, it was to provide a "holistic, culturally appropriate and safe setting" for survivors to tell their stories.

[55] The TRC was required to produce a final report, which it did on December 15, 2015. The report indicates that about 6,000 survivors told their stories to the commission. The TRC also provided a means for archiving all documents, materials, transcripts and recordings it received "in accordance with access and privacy legislation".

[56] In order to ensure the efficacy of the truth and reconciliation process, Canada and the churches were required to provide all relevant documents in their possession and control for the use of the TRC, subject to the privacy interests of individuals as provided by the applicable legislation.

[57] Schedule N of the IRSSA deals with the mandate of the TRC. Of particular concern to the Catholic entities is s. 11, which provides that information could be transferred to the TRC "[i]nsofar as agreed to by the individuals affected".

[58] As discussed below, the Catholic entities say that this provision gives them and alleged perpetrators a veto over a claimant's entitlement to transfer his or her IAP documents to the NCTR. [page16 ]

(4) The proceedings below

[59] In 2013, disagreements over the disposition of the records of the IAP led to the TRC and the chief adjudicator of the secretariat each bringing a request for directions ("RFD") to the court. The supervising judge heard their requests in July 2014.

[60] Both requested a direction that a notice program be developed to inform claimants that some of their IAP documents could be archived at the NCTR, if the claimant so chooses.

[61] The chief adjudicator sought an order that all other copies of the IAP documents in the hands of the parties be destroyed. The TRC sought an order that they be archived at Library and Archives Canada, which is a part of the Government of Canada.

[62] Canada and the NCTR substantially agreed with the TRC, as the AFN did with the chief adjudicator, while the Catholic entities opposed the notice program and any archiving without the consent of all individuals affected. Independent counsel agreed with the Catholic entities that consent of all individuals affected was required for archiving.

[63] The supervising judge held that IAP documents could be archived with the claimants' consent alone. He ordered a notice program to inform claimants of their right to do so. He also ordered the destruction of all other IAP documents.

[64] The supervising judge held there was no merit to the Catholic entities' opposition to claimant-requested archiving and the notice program. He found the IRSSA provided claimants the right to archive and that a notice plan could be designed that was consistent with the IRSSA.

[65] On the disposition of the IAP documents, the supervising judge concluded that a destruction order was necessary to protect the confidentiality and privacy of the information contained in the IAP documents, as bargained for in the IRSSA. Destruction would take place, he said, but only after a 15-year retention period during which the documents would be governed by the Access to Information Act, R.S.C. 1985, c. A-1 and the Privacy Act.

[66] During the retention period, there would be a court-approved notice program to advise the survivors of their right to choose to transfer some of their documents, after the redaction of personal information.

[67] He came to this disposition based on his findings of fact, and after considering and rejecting arguments that the IAP documents should be governed by the document management regime set out in the Privacy Act, Access to Information Act and the Library and Archives of Canada Act, S.C. 2004, c. 11. [page17 ]

[68] His findings of fact included that the IAP documents contained some of the most private and intimate personal information imaginable; that it was very painful and difficult for survivors to describe their claims in public, in part because some claimants were abused by other students or became abusers themselves; and that claimants and alleged perpetrators relied on the confidentiality assurances in the IAP and IRSSA. Without those assurances, he found, the IAP could not have functioned.

[69] He accepted expert evidence that preservation of records, even in an "anonymized" form, could potentially result in identification of perpetrators and survivors in small aboriginal communities, causing lasting and irreparable harm to future generations. He found that some claimants would not have participated in the IAP had they been told that their intensely private experiences might be preserved in a government archive, with the possibility, however remote, that they might be accessible by future generations.

[70] The supervising judge rejected Canada's argument that the IAP documents are "under the control of a government institution" and therefore "government records" subject to Canada's privacy, access to information and archiving regime. They are not government records because they are not under Canada's control -- they are only under the control of the various supervisory bodies established by the IRSSA, which were ultimately subject to the court's control. In any event, he held that even if they are government records, the court's jurisdiction extended over Canada's possession of them.

[71] He rejected Canada's argument that the express references in the guide to the Privacy Act and the Access to Information Act informed claimants that their documents might be disclosed. He also found that there is no express language in the IRSSA that told claimants or the defendants that their IAP documents would be archived at Library and Archives Canada where, pursuant to s. 8(3) of the Privacy Act, their personal information might be disclosed for research or historical purposes or subject to access or Privacy Act requests.

[72] He also rejected Canada's argument, repeated in this court, that a term in Schedule D to the IRSSA, which says that "all copies [of the IAP Application Form] other than those held by the Government will be destroyed on the conclusion of the matter", means that Canada is entitled to retain the application forms for archiving. This provision, he said, is simply to permit Canada to keep the application form during the retention period.

[73] The supervising judge identified three bases on which he could order the destruction of the IAP documents: to interpret, [page18 ]enforce and administer the IRSSA; to enforce the implied undertaking rule; and to remedy a breach of confidence. He noted that the court's jurisdiction flows from its inherent jurisdiction, class proceedings legislation and from the IRSSA's approval and implementation orders.

[74] His final order provides that (a) with the redaction of personal information about alleged perpetrators or affected parties and with the consent of the claimant, his or her IAP documents can be archived at the NCTR; (b) the chief adjudicator is to retain all IAP documents in his possession for 15 years after the completion of the IAP hearings; (c) after that retention period, the chief adjudicator is to destroy all IAP documents; and (d) any other person or entity in possession of the IAP documents is to destroy them after the completion of the IAP hearings.

C. Issues

[75] To resolve the appeals and cross-appeals, this court must answer the following questions:

Appeals

(1) Who must consent to archiving the IAP documents?

(2) Is the notice program a material amendment to the IRSSA?

Cross-appeals

(1) Are the IAP documents government records?

(2) Is the order to destroy IAP documents reasonable?

(3) Is the 15-year retention period reasonable?

(4) Was it reasonable to order the TRC and NCTR to conduct the notice program?

(5) Should the orders on IAP documents apply to the ADR documents?

[76] On the appeals, I conclude that IAP documents may be archived with the consent of the claimant alone. I also conclude the notice plan falls within the supervising judge's administrative discretion -- it was not a material amendment to the IRSSA.

[77] On the cross-appeals, I find that the IAP documents are not government records subject to the Library and Archives Act. Thus, the disposal or destruction of the documents is not prohibited by law. And I find that it was reasonable to make the order to ultimately destroy all IAP documents, other than those in the [page19 ]claimants' possession or archived with their consent. I also find that the 15-year retention period is reasonable.

[78] However, in my view, it was unreasonable to order the TRC and NCTR to conduct the notice program, and I would order the chief adjudicator to do so instead.

[79] Finally, I agree that the order should have included the ADR documents.

D. Standard of Review

[80] Answering these questions involves reviewing the supervising judge's contractual interpretation, his conclusions based on the application of legal standards to facts and his exercise of administrative discretion as a class action judge.

[81] In summary, my conclusions on the standards of review are as follows. First, as I will discuss further below, questions of contractual interpretation, such as whether Schedule N, s. 11 requires all affected individuals' consent for archiving, should be reviewed for reasonableness.

[82] Second, the government records issue should be reviewed for correctness. While the supervising judge correctly stated the test from Canada (Information Commissioner) v. Canada (Minister of National Defence), [2011] 2 S.C.R. 306, [2011] S.C.J. No. 25, 2011 SCC 25, he did not apply the factors set out therein, nor did he distinguish between the two entities that possess the IAP documents and through which Canada claims control. The analysis called for different considerations in each case: see Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 2002 SCC 33, at paras. 27, 31.

[83] Finally, the remaining questions relate to gaps and unfulfilled promises in the IRSSA. Their resolution required the supervising judge to exercise his administrative discretion as a class action judge. As I elaborate on in my analysis, the supervising judge's decision on these issues should be afforded deference, and reviewed for reasonableness: see, e.g., Lavier v. MyTravel Canada Holidays Inc., [2013] O.J. No. 674, 2013 ONCA 92, 359 D.L.R. (4th) 713, at para. 20.

[84] The standard of review of the supervising judge's interpretation of the IRSSA was a subject of some controversy among the parties. I will therefore explain further why, absent an extricable error in law, or a palpable and overriding error in the assessment of the evidence, that interpretation, and conclusions based on that interpretation, are to be reviewed on a deferential standard.

[85] In Sattva Capital Corp. v. Creston Moly Corp., [2014] 2 S.C.R. 633, [2014] S.C.J. No. 53, 2014 SCC 53, at para. 50, the [page20 ]Supreme Court unanimously held that "[c] ontractual interpretation involves issues of mixed fact and law as it is an exercise in which the principles of contractual interpretation are applied to the words of the written contract, considered in light of the factual matrix". Rothstein J., writing for the court, held that the "historical approach" that treated the interpretation of a contract as a question of law should be abandoned.

[86] He offered two justifications for abandoning the historical approach. First, contract interpretation has progressed from technical rules toward a "practical, common-sense approach" in which the decision maker considers the "surrounding circumstances" or "factual matrix": Sattva, at paras. 46-47. Second, the distinction in the Supreme Court's jurisprudence between questions of law and questions of mixed fact and law suggests that contract interpretation falls into the latter category, because, when interpreting a contract, a decision maker must "ascertain the objective intent of the parties -- a fact-specific goal -- through the application of legal principles of interpretation": Sattva, at para. 49.

[87] Rothstein J. noted, at paras. 53-55, that it may be possible to extricate a question of law from the interpretation of a contract, but observed that "courts should be cautious in identifying extricable questions of law in disputes over contractual interpretation" and that "the circumstances in which a question of law can be extricated from the interpretation process will be rare".

[88] In this court's recent decision in MacDonald v. Chicago Title Insurance Co. of Canada (2015), 127 O.R. (3d) 663, [2015] O.J. No. 6350, 2015 ONCA 842, Hourigan J.A. applied a correctness standard to a motion judge's interpretation of a title insurance policy. In doing so, he explained, at paras. 20-21, the two primary reasons underlying the Supreme Court's departure from the correctness standard of review for contract interpretation in Sattva.

[89] First, the modern focus on contextual factors in contact interpretation makes the exercise one of mixed fact and law, in which interpretative principles are applied in light of the factual matrix. Second, principles of judicial economy and finality dictate that cases turning on their facts, which have no impact beyond the immediate parties, should be resolved by first-instance decision makers, in the absence of an extricable error of law.

[90] These considerations led Hourigan J.A. to find that it remained appropriate to apply a correctness standard to the title insurance policy in question. It was a standard form policy in common and extensive use. The factual context was of little [page21 ]significance in the interpretive exercise, since it was a contract of adhesion. Furthermore, the decision would have significant precedential value.

[91] Here, unlike in MacDonald, the examination of the factual matrix featured large in the interpretive exercise. This suggests a reasonableness standard.

[92] Nevertheless, the appellants and cross-appellants challenging the decision of the supervising judge argue that the applicable standard of review is correctness, because the outcome of the case will affect thousands of people. They rely on a prior appellate decision interpreting the IRSSA: Fontaine v. Canada (Attorney General), [2014] M.J. No. 290, 2014 MBCA 93, 310 Man. R. (2d) 162.

[93] In that case, the main issue was whether an IAP claimant advancing a claim for actual income loss greater than $250,000 had fully and finally exited the IAP process if granted access to the courts by the chief adjudicator. The supervising judge determined that the claimant did not exit the IAP process, and Canada appealed.

[94] At the outset of its analysis, the Manitoba Court of Appeal stated, at para. 40, that the applicable standard of review was correctness:

The parties agree, as do I, that both issues involve errors of law or extricable questions of law and are reviewable on a standard of correctness. As was stated by Rothstein J. in Sattva, one of the purposes of drawing a distinction between questions of law and those of mixed fact and law "is to limit the intervention of appellate courts to cases where the results can be expected to have an impact beyond the parties to the particular dispute" . . . In this case, the Agreement has applicability to thousands of claimants across the country and as such, the manner in which it is interpreted has great precedential value, and brings certainty to others involved in similar disputes[.]

(Citations omitted; emphasis added)

[95] In my view, counsel's reliance on this case is misplaced. The question is not whether the decision will impact many people, but whether it will have precedential value, in the sense that it provides guidance to adjudicators or resolves an issue that could arise in future litigation. The fact that the outcome of the interpretation of the agreement will affect many -- indeed many thousands -- of claimants, is not, of itself, a reason to elevate the standard of review to correctness.

[96] This is not a case like the decision of the Manitoba Court of Appeal in Fontaine, in which the decision had precedential value for future cases. There will be no future cases like this one. This is a once-and-for-all determination of the rights of all parties relating to these issues under the IRSSA. [page22 ]

[97] Here, the fact-based, contextual nature of the interpretative process mandates deference in the absence of an extricable error of law or a palpable and overriding error in the assessment of the evidence. The standard of review is reasonableness.

E. Analysis -- The Appeal of the Catholic Entities

[98] The Catholic entities argue that the supervising judge's order that IAP documents may be archived at the NCTR at the request of a claimant alone is contrary to the IRSSA and to the promise that the IAP would be confidential.

[99] They also say that the supervising judge's order of a notice program to advise claimants of their right to archive IAP documents is a material amendment to the terms of the IRSSA and exceeded his jurisdiction.

[100] I would dismiss the Catholic entities' appeals for the reasons that follow.

(1) Who must consent to archiving the IAP documents?

[101] Various terms of the IRSSA deal with the capacity of claimants to access and obtain copies of their own IAP documents and to reveal the contents of those documents.

[102] Schedule D of the IRSSA concerns the IAP. Article III(o)(ii) of that schedule provides that the IAP proceedings will be recorded and transcribed for certain purposes. Adjudicators may request a transcript to facilitate report writing. Transcripts may also be prepared in the event a decision is reviewed. The same provision provides that a claimant may request a "copy of their own evidence for memorialization". Finally, and crucially for present purposes, the provision states that "[c]laimants will also be given the option of having the transcript deposited in an archive developed for the purpose."

[103] The provision dealing with the transcript of a claimant's evidence is consistent with other parts of the IRSSA. Their overall effect is that residential school survivors are free to disclose their own experiences, despite any claims that others may make with respect to confidentiality and privacy.

[104] For example, the "Declaration" signed by an IAP claimant as part of the IAP application form requires a claimant to "respect the private nature of any hearing" and not to disclose any witness statement or anything said at the hearing. However, it explicitly permits the claimant to disclose "what I say myself".

[105] The confidentiality agreement likewise exempts the claimant's "own evidence" from the obligation to keep confidential the information that is presented at the hearing. Article III(o)(i) of Schedule D explicitly permits claimants to disclose [page23 ]their own evidence, despite the fact that the hearing is closed to the public. That article also provides that claimants will receive a copy of the decision, redacted to remove identifying information about any alleged perpetrators, and that claimants "are free to discuss the outcome of their hearing, including the amount of any compensation they are awarded".

[106] At the heart of the Catholic entities' appeals is the submission that a term in a different schedule, Schedule N, requires the consent of any person or institution against whom a claimant makes allegations of wrongdoing ("persons of interest") before information or documents are archived.

[107] The relevant provision in Schedule N is s. 11, which I set out here in its entirety:

11. Access to Relevant Information

In order to ensure the efficacy of the truth and reconciliation process, Canada and the churches will provide all relevant documents in their possession or control to and for the use of the Truth and Reconciliation Commission, subject to the privacy interests of an individual as provided by applicable privacy legislation, and subject to and in compliance with applicable privacy and access to information legislation, and except for those documents for which solicitor-client privilege applies and is asserted.

In cases where privacy interests of an individual exist, and subject to and in compliance with applicable privacy legislation and access to information legislation, researchers for the Commission shall have access to the documents, provided privacy is protected. In cases where solicitor-client privilege is asserted, the asserting party will provide a list of all documents for which the privilege is claimed.

Canada and the churches are not required to give up possession of their original documents to the Commission. They are required to compile all relevant documents in an organized manner for review by the Commission and to provide access to their archives for the Commission to carry out its mandate. Provision of documents does not require provision of original documents. Originals or true copies may be provided or originals may be provided temporarily for copying purposes if the original documents are not to be housed with the Commission.

Insofar as agreed to by the individuals affected and as permitted by process requirements, information from the Independent Assessment Process (IAP), existing litigation and Dispute Resolution processes may be transferred to the Commission for research and archiving purposes.

(Emphasis added)

[108] The Catholic entities place particular reliance on the concluding paragraph of s. 11 and argue that, because disclosure of allegations of wrongdoing made by claimants in the IAP would impact the reputations of others -- alleged perpetrators, other witnesses, students, church institutions and staff -- any such individual or institution falls within the class of "individuals affected". The individual or institution, they say, is thereby [page24 ]given the right to refuse the consent required before IAP documents are archived.

[109] This submission is bolstered by the Catholic entities' contention that the lack of procedural protections for persons of interest in the IAP makes it unfair to deny them a right to prevent the transfer of the IAP documents. They point out that under the IAP they did not have the right to face or cross-examine their accusers or to test the evidence led in support of a claim in the usual adversarial manner.

[110] The Catholic entities submit that the lack of procedural fairness renders the evidence heard and the findings made one-sided, untested and unreliable. They say that the reputations of persons of interest will be unfairly besmirched if IAP documents can be archived at the sole request of the claimant. They further submit that the IRSSA promised them confidentiality, and that confidentiality is denied by the supervising judge's order that the IAP documents may be transferred to the NCTR with the sole consent of the claimant.

[111] In my view, when the words "individuals affected" are read in the context of Schedule N, s. 11 and the IRSSA as a whole, they cannot reasonably bear the meaning contended for by the Catholic entities.

[112] The purpose of s. 11 is to require Canada and the churches to provide relevant documents in their possession for the use of the TRC "subject to the privacy interests of an individual as provided by applicable privacy legislation, and subject to and in compliance with applicable privacy and access to information legislation". Canada and the churches must provide copies of documents in their possession and provide access to any archives they maintain to permit the TRC to carry out its mandate.

[113] Schedule N deals primarily with the TRC, not the IAP. Section 11 refers only to the transfer of IAP documents to the TRC by those responsible for administering the IAP. It does not deal with the very different question that is before us on this appeal, namely, the right given to IAP claimants to have their IAP documents deposited in the NCTR archive.

[114] If the Catholic entities' argument were accepted, s. 11 would eviscerate important rights granted by the other provisions of the IRSSA that give IAP claimants control over their IAP documents, the right to disclose their complaints and to have their evidence archived.

[115] In their factum, the nine Catholic entities also argue that any transfer of IAP documents without the knowledge and written consent of their members would breach those members' rights under the Civil Code of Québec, C.Q.L.R., c. C-1991 and [page25 ]the Charter of Human Rights and Freedoms, C.Q.L.R., c. C-12. However, this argument was not advanced in oral submissions and it appears to have been only tangentially raised before the supervising judge.

[116] In my view, the argument has no merit. Any disclosure of information under the terms of the IRSSA flows directly from the agreement the nine Catholic entities signed on behalf of their members. They and their members thereby surrendered certain rights in exchange for significant benefits. Having agreed to the terms of the IRSSA, the nine Catholic entities cannot now complain of the loss of any rights they thereby surrendered.

[117] Nor do I see any merit in the contention that alleged perpetrators and other individuals and institutions should have the right to veto the archiving of IAP documents because of the lack of procedural protections accorded in the IAP.

[118] The IAP was a negotiated solution to a difficult problem that benefited all parties, including the Catholic entities and alleged perpetrators. By signing the IRSSA, the Catholic entities agreed to surrender certain procedural rights they would have enjoyed had the claims been pursued by way of ordinary litigation, in exchange for significant benefits. Ordinary litigation was avoided, the burden of liability was assumed by Canada and the Catholic entities gained immunity from a significant potential liability. They enjoyed limited procedural rights in the IAP precisely because they agreed to forgo those rights in exchange for protection from the legal jeopardy they would have otherwise faced.

[119] A claimant's archiving of documents with the NCTR does nothing more than preserve the documents for what they are: the stories of claimants who say they suffered mistreatment and abuse in residential schools. Residential school survivors are entitled to tell those stories. Untested stories remain untested allegations, not proven according to the ordinary exacting standards of the law. They do not have to be the product of a contested adversarial hearing to make them eligible for archiving.

[120] By allowing claimants to archive their IAP transcripts, the IRSSA merely provides claimants with an alternative and expeditious means of preserving their stories as part of the TRC process. There was nothing to stop an IAP claimant from entering the TRC process and telling his or her story there so that it would be preserved for all to see. The IAP claimant would not have required anyone's permission or consent to take that step.

[121] I fail to see any reason why a claimant should require permission or consent to accomplish the very same result simply by depositing the IAP transcript with the NCTR. [page26 ]

[122] I therefore conclude that the supervising judge correctly found that IAP claimants may deposit their transcripts in an archive at the NCTR without the consent of any other party or person.

[123] I turn to the second question on the appeal: whether the notice program ordered by the supervising judge is a material amendment to the IRSSA.

(2) Is the notice program a material amendment to the IRSSA?

[124] The Catholic entities submit that the supervising judge effectively amended the IRSSA by ordering the notice program. They say there is nothing in the IRSSA that contemplates or authorizes the notice program.

[125] I do not accept that submission.

[126] As I noted above, art. III(o)(ii) of Schedule D expressly contemplates that "[c]laimants will be given the option of having the transcript deposited in an archive developed for the purpose." In my view, it is clear that the IRSSA gives claimants the right to obtain their IAP documents and a transcript of their evidence, and the right to deposit that material in the institution created to preserve the history of the abuses of residential schools, the NCTR.

[127] The notice program does not add to that right; it merely ensures that claimants are aware of it and able to exercise it. The notice program does not alter the terms of the IRSSA, create new rights or ignore other rights. It serves only to ensure that the rights accorded by the IRSSA are understood and respected. Indeed, the issue of notice is expressly contemplated in the IRSSA. The notice program falls squarely within the supervising judge's responsibility and jurisdiction as the supervising class action judge to ensure that the IRSSA is properly implemented and that it delivers the promised benefits to class members: see Baxter, at paras. 12, 50.

[128] For these reasons, I would dismiss the appeals of the Catholic entities.

F. Analysis -- The Cross-Appeals

[129] Canada, supported by the TRC and NCTR, argues that the IAP documents are government records and thus cannot be destroyed. It also challenges the reasonableness of the supervising judge's order to destroy the IAP documents.

[130] Independent counsel, supported by the chief adjudicator, seeks amendments to three collateral aspects of the final order. They say that the 15-year retention period is too long, that the [page27 ]chief adjudicator -- not the TRC and NCTR -- should conduct the notice plan, and that the supervising judge's order should have included the ADR documents.

[131] For the reasons that follow, I am in substantial agreement with the decision of the supervising judge and would dismiss Canada's cross-appeal. I would, however, vary the order in the court below to include the ADR documents and to require the chief adjudicator to conduct the notice plan.

(1) Are the IAP documents "government records"?

[132] The threshold question on the cross-appeals is whether the IAP documents are "government records" as defined in the federal privacy, access to information and archiving legislation -- that is, records under the control of a government institution.

[133] There are two significant consequences if the IAP documents are government records.

[134] The first is that no government record can be disposed of, except with the consent of the librarian and archivist because of s. 12(1) of the Library and Archives of Canada Act. That section reads:

12(1) No government or ministerial record, whether or not it is surplus property of a government institution, shall be disposed of, including by being destroyed, without the written consent of the Librarian and Archivist or of a person to whom the Librarian and Archivist has, in writing, delegated the power to give such consents.

[135] According to Canada, this section prevents anyone other than the librarian and archivist -- even the court -- from ordering the destruction of a government or ministerial record. It says the supervising judge's order is contrary to law because IAP documents are government records. As I find that the IAP documents are not government records, it is not necessary to explore this proposition, which the supervising judge rejected in obiter.

[136] The second implication of the IAP documents being government records, which I will discuss further below, is that they would be subject to transfer and disclosure without the consent of the IAP claimant under the Privacy Act, Access to Information Act and Library and Archives of Canada Act.

[137] In most cases, once the information is disclosed through those Acts, there is no further limitation on how it may be used.

[138] Canada, the TRC and the NCTR argue that the IAP documents are under the control of a government institution, AANDC. Canada and the TRC note that possession generally suffices for control, and Canada possesses the IAP documents through the secretariat and the SAO, branches of AANDC. [page28 ]

[139] These parties also say that the supervising judge erred in concluding that the documents could be subject to the access and privacy legislation for a limited time. Either the documents are within the scope of the legislation or they are not.

[140] Finally, they argue that references in the IRSSA and in the guide to the federal legislation mean that as a matter of contract, the IAP documents are government records. This is at odds with their argument that the parties cannot contract into and out of the federal legislation, an argument with which I agree.

[141] As I will explain, whether the IAP documents are government records subject to the federal legislation turns on whether they are under the control of a government institution. That in turn depends on factors such as who possesses the records, the independence of the entity in possession of the records, the nature and origin of the records, and whether or not possession is constrained by the court. References to the federal legislation in the IRSSA are more appropriately considered in the analysis of whether the order was reasonable in light of the expectations of the parties, and other factors.

[142] In my view, the IAP documents are under the court's control, but not under AANDC's control. They are not government records. While possession may often suffice for control, this is not always the case. When the government is in possession of records only as a result of litigation, and is constrained in its use of those records by the court process or a specific court order, those records are not "under the control of a government institution".

[143] As mentioned, I agree with the cross-appellants that the parties could not "contract into" the federal legislation. Because the IAP documents are not government records, those acts also do not apply during the retention period. To that extent, I respectfully disagree with the reasons of the supervising judge. Notwithstanding that conclusion, IAP documents in the possession of the government during the retention period are subject to strict confidentially in accordance with the IRSSA.

(a) Statutory context

[144] Three federal statutes govern government records: the Privacy Act, the Access to Information Act and the Library and Archives of Canada Act.

[145] The purpose of the Privacy Act, as its name suggests, is to protect the privacy and integrity of individuals' personal information held by government institutions and to provide individuals with a right of access to government-held information about themselves. It limits the government's collection, use and disclosure of personal information. [page29 ]

[146] The purpose of the Access to Information Act is to provide transparency and accountability to government operations by making government information available to the public and by providing a public right of access to that information, subject to limited exceptions and under the oversight of an independent body. The legislation promotes transparency and aims to enhance democracy: Canada (Information Commissioner) v. Canada (Minister of National Defence), at para. 15.

[147] Section 4(1) of the Access to Information Act gives an overriding right of access to Canadian citizens or permanent residents to, with some exceptions, "any record under the control of a government institution". Section 19 provides that the head of a government institution shall refuse to disclose a record that contains personal information unless the information falls within one of the exceptions in s. 8 of the Privacy Act. In addition to those discussed below, the exceptions include disclosure to Library and Archives Canada for archiving purposes and disclosure to others for research or statistical purposes.

[148] The Library and Archives of Canada Act governs, among other things, the preservation, disposal and destruction of government records.

[149] The preamble to that Act sets out its purposes. These include (a) to preserve Canada's documentary heritage for the benefit of present and future generations; (b) to provide an institution that is a source of enduring and accessible knowledge, thereby contributing to the cultural, social and economic advancement of Canada; . . . and (d) to serve as a continuing memory of the government of Canada and its institutions (emphasis added).

[150] The relevant parts of these statutes apply only to government records: see, e.g., Privacy Act, ss. 7-10, 12; Access to Information Act, s. 4; Library and Archives of Canada Act, ss. 2, 12.

[151] A "government record" is defined in s. 2 of the Library and Archives of Canada Act as "a record that is under the control of a government institution". Thus, a document is only a "government record" when a "government institution" has "control" of it.

[152] "Government institution" has the same meaning in the Library and Archives of Canada Act as in s. 3 of the Privacy Act and s. 3 of the Access to Information Act. Those Acts define "government institution" as "any department or ministry of state of the Government of Canada, or any body or office, listed in Schedule I".[^6] [page30 ]

[153] Of note for this appeal, the Department of Indian Affairs and Northern Development, the legal name for AANDC, is a "government institution" listed in the schedules of the Privacy Act and the Access to Information Act.

[154] "Control", unlike "government institution", is not defined by statute.

(b) Judicial interpretation of "under the control of a government institution"

[155] With one notable exception, a decision of the Federal Court discussed below, the meaning of "under the control of a government institution" has derived from Access to Information Act cases.

[156] Those cases have explained that "control" should be given its ordinary and popular meaning, and interpreted broadly and liberally to achieve the purpose of the Access to Information Act: see Canada (Information Commissioner) v. Canada (Minister of National Defence), at para. 48.

[157] The Supreme Court, in Canada (Information Commissioner) v. Canada (Minister of National Defence), explained that courts have considered various forms of control, but cautioned that its meaning cannot be stretched beyond reason, at para. 48:

In reaching a finding of whether records are "under the control of a government institution", courts have considered "ultimate" control as well as "immediate" control, "partial" as well as "full" control, "transient" as well as "lasting" control, and "de jure" as well as "de facto" control. While "control" is to be given its broadest possible meaning, it cannot be stretched beyond reason. Courts can determine the meaning of a word such as "control" with the aid of dictionaries. The Canadian Oxford Dictionary defines "control" as "the power of directing, command (under the control of)" (2001, at p. 307). In this case, "control" means that a senior official with the government institution (other than the Minister) has some power of direction or command over a document, even if it is only on a "partial" basis, a "transient" basis, or a "de facto" basis.

[Citation omitted; emphasis omitted]

[158] The Supreme Court also said that "[t]he contents of the records and the circumstances in which they came into being are relevant to determine whether they are under the control of a government institution for the purposes of disclosure under the Act" [citation omitted].

[159] Possession, as noted in that case, often plays a leading role in determining control: at para. 54. Generally, a government institution's possession of records, "whether in a legal or corporeal sense, is sufficient for such records to be subject to the Access to Information Act": Canada Post Corp. v. Canada (Minister of Public Works), 1993 CanLII 2970 (FC), [1993] F.C.J. No. 531, [1993] 3 F.C. 320 (T.D.), at pp. 346-47 F.C., [page31 ]per Rothstein J., affd 1995 CanLII 3574 (FCA), [1995] F.C.J. No. 241, [1995] 2 F.C. 110 (C.A.).

[160] Even without physical possession, a government institution may still control a record if "a senior official of the government institution, based on all relevant factors, reasonably should be able to obtain a copy of the record": Canada (Information Commissioner) v. Canada (Minister of National Defence), at para. 56 (emphasis in original). The relevant factors include the "substantive content of the record, the circumstances in which it was created, and the legal relationship between the government institution and the record holder".

[161] Notably, confidentiality agreements in contracts have been held not to negate government control -- the Access to Information Act, for instance, applies to [at para. 18] "any record, or information in a record, which happens to be within the custody of the government regardless of the means by which that custody was obtained": Rubin v. Canada (Minister of Foreign Affairs and International Trade), [2001] F.C.J. No. 698, 2001 FCT 440 (T.D.).

[162] However, it has been held that restrictions on possession imposed by the court, such as the implied undertaking rule, may preclude a government institution's control over documents: Andersen Consulting v. Canada, 2001 CanLII 22032 (FC), [2001] F.C.J. No. 57, [2001] 2 F.C. 324 (T.D.), at para. 17; but see Canadian Imperial Bank of Commerce v. Canada (Canadian Human Rights Commission), [2007] F.C.J. No. 1113, 2007 FCA 272, 70 Admin. L.R. (4th) 62, which distinguished statutory restrictions on the basis that s. 4 of the Access to Information Act begins with the words "notwithstanding any other Act of Parliament".

[163] In Andersen Consulting, a decision relied upon by the supervising judge, Hugessen J. of the Federal Court held that the National Archives of Canada Act[^7] did not prevent an order for the disposal of records obtained by Canada through litigation.

[164] He distinguished the case before him from other cases that had found documents to be under government control, despite expectations of confidentiality. In the case before him, unlike those cases, the law itself through the implied undertaking rule imposed a condition on the documents before they came into the possession of the government. That rule, derived from the court's inherent jurisdiction, bound the government to deal with the documents only as permitted by the undertaking. The documents were not therefore under the government's control. [page32 ]

(c) Application

[165] Canada, and those who support its position, claim that AANDC, a listed government institution, controls the IAP documents through the secretariat and the SAO. I will explain why I disagree.

(i) The secretariat

[166] The secretariat's independence from the listed government institution, AANDC, for administering the adjudicative functions of the IAP, and the nature and origin of the IAP documents, lead me to conclude that those documents are not under the listed government institution's control.

[167] In all ways material to this appeal, the secretariat is an organization independent of AANDC.

[168] At the outset, it is critical to understand that the IAP was not a federal government program. It was the product of the court-approved settlement of class actions and other litigation in which Canada was a defendant and was overseen by the court through the chief adjudicator, a court-appointed officer of the court.

[169] From the very inception of the IRSSA, it was recognized that although Canada's administrative infrastructure was required to carry out the settlement, it was vital to ensure that the court, not Canada, was in control of the process.

[170] This concern is not unique to this settlement. It arises frequently in the settlement of class actions when the defendant is proposed as the administrator of the settlement. The defendant's resources and infrastructure may make it well equipped to carry out the administration of the settlement. In very large claims, such as claims against the state, it may be the only entity capable of administering the settlement. But in every such case the court approving the settlement has a responsibility to ensure that the defendant, qua administrator, is not able to manipulate the administration of the settlement for its purposes.

[171] It was because of this concern that Winkler J. conditionally approved the IRSSA in Baxter, at paras. 37 and 38, requiring that the parties ensure Canada could not directly or indirectly influence the administration of the IAP:

[T]he court has a general concern whenever a defendant proposes to change roles and become the administrator of a settlement. There must be a clear line of demarcation between the defendant as litigant and the defendant as neutral administrator. Further, there must be an express recognition by the defendant proposed as administrator that the settlement is being implemented and administered in a court supervised process and not subject to the direction of the defendant either directly or indirectly. The difficulty in drawing the [page33 ]distinction, and adhering to the underlying concept, is the reason why the court must be especially circumspect when considering the approval of a defendant as administrator. The line is even more blurred in this case where Canada, as defendant, will still be an instructing respondent in respect of individual claims made under the IAP.

. . . In order to satisfactorily achieve this requisite separation, the administrative function must be completely isolated from the litigation function with an autonomous supervisor or supervisory board reporting ultimately to the courts. This separation will serve to protect the interests of the class members and insulate the government from unfounded conflict of interest claims. . . . [T]he requisite independence and neutrality can be achieved by ensuring that the person, or persons, appointed by Canada with authority over the administration of the settlement shall ultimately report to and take direction, where necessary, from the courts and not from the government.

(Emphasis added)

[172] This was confirmed by the IRSSA approval and implementation orders, which were designed to give effect to the court's ultimate control of the IAP, through the chief adjudicator.

[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.

[174] The secretariat administers the IAP. It was initially established in 2007 as an autonomous branch of Indian and Residential Schools Resolution Canada ("IRSRC"), which was an existing government department. In 2008, IRSRC integrated into AANDC. In addition to its adjudicative functions, the secretariat provides secretarial and administrative support for the chief adjudicator and functions as the registry of the IAP. As such, and on behalf of the chief adjudicator, it retains possession of the documents provided to and generated by the IAP.

[175] Save for specific financial, funding, auditing and human resource matters, the secretariat is under the direction of the chief adjudicator and is independent from AANDC. The secretariat's employees work in separate office space with separately keyed entrances.

[176] The secretariat's independence is reflected in its handling of IAP documents. The secretariat uses the same digital database as the SAO, but that database functions with an asymmetrical access system. That system allows the secretariat and SAO to access different, but overlapping, sets of records. Electronic records belonging to the secretariat may be transferred to the SAO, but only after the secretariat grants access [page34 ]permission. The secretariat maintains a set of paper files separate from AANDC. It also keeps a secure database of hearing transcripts, and a set of unredacted IAP and ADR decisions.

[177] The secretariat is not a listed government institution, but it falls under AANDC, which is listed. Significantly, other institutions that operate independently from the department they are under, such as the Military Police Complaints Commission, are separately listed as government institutions in the schedules.

[178] The IAP documents -- documents relating solely to the secretariat's adjudicative function -- are under the control of the chief adjudicator, not AANDC. It is the chief adjudicator, overseen by the court, who controls the management and distribution of IAP documents in accordance with the IRSSA. And the chief adjudicator does not answer to AANDC.

[179] Were the head of AANDC to receive an access to information request -- say a request for a claimant's application form, a transcript of a claimant's evidence or an adjudicator's decision -- it would have no reasonable legal or practical expectation that it could obtain copies of such IAP documents from the secretariat. The legal firewall established by the approval orders and the implementation orders would prevent it. The chief adjudicator would be duty-bound to refuse the request and the court would support that refusal. That may not be the case for documents of a different nature, such as those relating to funding, auditing and human resources -- documents for which AANDC would have a much stronger claim for control.

[180] The secretariat, overseen by the chief adjudicator, enjoys significant, judicially mandated and judicially protected independence from AANDC for the administration of the IAP. IAP documents in its possession are simply not under the control of AANDC.

(ii) The SAO

[181] The SAO, unlike the secretariat, is not an autonomous branch of AANDC. However, as a litigant, its possession of information and documents obtained through the IAP is limited to the purposes for which they were provided -- to litigate IAP claims. That constraint on its possession is through the court's inherent jurisdiction, and based on the rationale underlying the implied undertaking rule. The IAP documents -- derived from that information and those documents -- are not under its control.

[182] The SAO carries out Canada's functions as a litigant under the IAP. The SAO is part of a section of AANDC known as the Resolution and Individual Affairs Sector ("RIAS"). RIAS is [page35 ]responsible for paying compensation for settlements reached under the IAP. The SAO is responsible for representing Canada at IAP hearings, including challenging IAP claims on behalf of Canada. The SAO also performs Canada's document disclosure obligations for individual IAP claims. In these capacities, the SAO possesses a complete set of IAP documents.

[183] In my view, the implied undertaking rule is not a precise fit for the IAP documents. However, applying the rationale underlying the rule to these documents -- documents made and obtained through a litigation process within a court-approved settlement agreement -- to limit their use to the purpose for which they were produced, is a harmonious exercise of the court's inherent jurisdiction.

[184] It is well established that a superior court has inherent jurisdiction to ensure access to justice, protect the rule of law and preserve the integrity of the administration of justice: see, e.g., R. v. Cunningham, [2010] 1 S.C.R. 331, [2010] S.C.J. No. 10, 2010 SCC 10, at para. 18.

[185] Lord Dyson in Al Rawi v. The Security Service, [2011] UKSC 34, [2012] 1 A.C. 531, at paras. 20-22, observed that, absent statutory regulation, the court has "an untrammelled power to manage litigation in whatever way it considers necessary or expedient in the interests of justice" so long as it does not alter substantive procedural law, such as natural justice.

[186] Often, the question is not whether the court has jurisdiction, but whether it should use it. Because of its breadth, judges must carefully exercise this power. As Binnie J. warned, "the very plenitude of this inherent jurisdiction requires that it be exercised sparingly and with caution": R. v. Caron, [2011] 1 S.C.R. 78, [2011] S.C.J. No. 5, 2011 SCC 5, at para. 30.

[187] The inherent jurisdiction of the court extends to control over the use and disclosure of documents derived from its process. Dickson J. expressed this principle in Nova Scotia (Attorney General) v. MacIntyre, 1982 CanLII 14 (SCC), [1982] 1 S.C.R. 175, [1982] S.C.J. No. 1, at p. 189 S.C.R.: "Undoubtedly every court has a supervisory and protecting power over its own records. Access can be denied when the ends of justice would be subverted by disclosure or the judicial documents might be used for an improper purpose."

[188] To protect privacy and prevent improper uses, the court exercises its inherent jurisdiction to control documents and its own process in a variety of ways, including issuing publication bans, holding hearings in camera, sealing information in court proceedings, and enforcing the implied undertaking rule.

[189] The point is this: to ensure access to justice, protect the rule of law and preserve the integrity of the administration of [page36 ]justice, the court always maintains control over information and documents obtained or originating because of its process. When that control is exercised, it constrains others' possession of such documents.

[190] I accept that the traditional implied undertaking rule is not tailored to the circumstances under which the IAP documents came into being. That rule has generally been confined to documents produced in the course of civil discovery. In cases that settle, its protection continues. However, its protection ends when the documents are produced in open court. The IAP documents, on the other hand, were documents obtained and created through a litigation process within the settlement of civil litigation.

[191] That being said, the broader principle underlying the implied undertaking fits this context. In Goodman v. Rossi (1995), 1995 CanLII 1888 (ON CA), 24 O.R. (3d) 359, [1995] O.J. No. 1906 (C.A.), Morden J.A. examined the historical origins of the implied undertaking rule. He referred [at para. 19] to Reynolds v. Godlee (1858), 4 K. & J. 88, 70 E.R. 37, in which the court described the rule governing the situation as follows:

If, on the other hand, the rule be this, that, where documents have been produced in obedience to an order of this Court, the Court has a right to say to the person who has obtained their production: -- aeThose documents shall never be used by you except under the authority of the Court," the course of proceeding would be intelligible and safe, and no inconvenience would ensue to either party.

[192] After considering other early expressions of the rule, Morden J.A. stated [at para. 23],

[T]he principle is based on recognition of the general right of privacy which a person has with respect to his or her documents. The discovery process represents an intrusion on this right under the compulsory processes of the court. The necessary corollary is that this intrusion should not be allowed for any purpose other than that of securing justice in the proceeding in which the discovery takes place.

(Emphasis added)

[193] He suggested that the broader principle was expressed in Lindsey v. Le Sueur (1913), 1913 CanLII 574 (ON CA), 29 O.L.R. 648, [1913] O.J. No. 168 (C.A.), at p. 655 O.L.R. In that case, Meredith C.J.O. said that because a party had been "given access to and the use of the documents for a particular purpose . . . there is necessarily an implication that they are not to be used for any other purpose". Rosenberg J.A. similarly identified that there could be a broader application of the civil implied undertaking rule in P. (D.) v. Wagg (2004), 2004 CanLII 39048 (ON CA), 71 O.R. (3d) 229, [2004] O.J. No. 2053 (C.A.), at paras. 29-47. [page37 ]

[194] Andersen Consulting, in 2001, is the sole reported decision to have wrestled with the issue whether documents obtained through litigation and constrained by the court's rules are subject to the archivist's sole discretion for disposal or destruction. It held they are not [at para. 17]:

Documents received by Justice in the discovery process are not subject to a merely voluntary condition. Lawyers for the Crown do not have the option of refusing to give the implied undertaking: by accepting the documents they are bound towards the Court to deal with them only in the way permitted by the undertaking. That condition is imposed upon the solicitors and upon the department and the government they serve prior to the documents ever coming into their possession. Furthermore, the undertaking extends not only to the documents themselves but, much more significantly, to all information obtained as a result of the discovery process, e.g. through answers to oral questions. The Court in extracting the undertaking is concerned not so much with the documents as pieces of paper but rather, and significantly, with the information they may contain. That information is to remain private unless and until it comes out in open Court. While the point does not arise for decision herein, I seriously doubt that it could be called "government information". It is not in the government's control because the latter's possession of it is constrained and restricted by law.

[195] I agree, in particular, with the concluding sentence of this extract. The IAP documents are not in the SAO's control because its possession of them -- and Canada's possession of them through the SAO -- is constrained and restricted by law.

[196] In my view, the application of the broader principle underlying the implied undertaking rule is the relevant legal constraint. Having obtained the IAP documents through a court-controlled process, the SAO could only use those documents for the purpose of that process, and when the process had run its course, the documents had to be returned or destroyed. Its possession of the documents was always constrained by the court's inherent jurisdiction and the principle underlying the implied undertaking.

(d) Conclusion

[197] For these reasons, I find that the IAP documents are not under the control of the secretariat or the SAO. They are therefore not government records and they are not subject to the relevant portions of the Privacy Act, Access to Information Act or the Library and Archives of Canada Act.

(2) Is the order to destroy the IAP documents reasonable?

[198] Having found that the supervising judge's destruction order was not prohibited by s. 12 of the Library and Archives of Canada Act, I now turn to the second question on the cross-appeal, whether the order was reasonable. [page38 ]

[199] Canada, the TRC and the NCTR challenge the overall reasonableness of the supervising judge's order to destroy the IAP documents. They say that the IAP documents are needed to preserve the historical record of residential schools. These parties point to references to federal legislation in the IRSSA and the guide and to the statement in the IRSSA that all parties other than Canada had to destroy the IAP applications immediately upon completion of a claim. They say these references support their submission that the IAP documents were meant to be archived by the government. Canada also argues the IAP documents serve as proof of the resolution of claims and are needed to prevent double recovery by claimants.

[200] In my view, the supervising judge's order was reasonable. Ordering the eventual destruction of the IAP documents was within the supervising judge's supervisory jurisdiction as a class action judge. It was a reasonable response to a gap in the IRSSA, based on his thorough and thoughtful interpretation of that agreement and the surrounding factual matrix. I will explain.

(a) Supervisory jurisdiction of a class action judge

[201] The court's responsibility under class action legislation to promote access to justice and to protect the interests of class members gives it broad supervisory jurisdiction over class proceedings.

[202] The court's supervisory jurisdiction is engaged from the inception of an intended class proceeding and "continues throughout the aestages' of the proceeding until a final disposition, including the implementation of the administration of a settlement or, where applicable, a resolution of all individual issues": Fantl v. Transamerica Life Canada (2009), 95 O.R. (3d) 767, [2009] O.J. No. 1826, 2009 ONCA 377, at para. 39. That jurisdiction exists independent of any jurisdiction conferred by the settlement agreement.

[203] Class proceedings legislation provides the court "with a broad, discretional jurisdiction to aemake any order it considers appropriate respecting the conduct of a class proceeding to ensure its fair and expeditious determination'": Fantl, at para. 42. Such broad jurisdiction has been held to apply to remedy administrative deficiencies in general, and those encountered in the IAP specifically: Bodnar v. Cash Store Inc., [2011] B.C.J. No. 947, 2011 BCSC 667, at paras. 118-21; Fontaine v. Canada (Attorney General), [2006] Y.J. No. 130, 2006 YKSC 63, 35 C.P.C. (6th) 134, at para. 54; Fontaine v. Canada (Attorney General), [2014] O.J. No. 195, 2014 ONSC 283, [2014] C.N.L.R. 86 (S.C.J.), at para. 157. [page39 ]

[204] In my view, this supervisory jurisdiction provided the supervising judge with the most direct source of authority to remedy the IRSSA's administrative deficiency on the disposition of IAP documents.

[205] As I mentioned earlier, the IRSSA was silent on the disposition of the documents. There was a gap which the supervising judge was entitled to remedy in the exercise of his administrative jurisdiction and in accordance with the principles embodied in the IRSSA, its factual matrix and the evidence before him.

(b) Reasonableness of discretionary order

[206] The supervising judge's exercise of this broad, discretionary jurisdiction to remedy administrative gaps in the IRSSA is owed deference on review. As this court held in Lavier v. MyTravel Canada Holidays Inc., at para. 20, "An appellate court will generally be reluctant to interfere with the exercise of discretion by an experienced class action judge."

[207] Deference is also owed to his factual findings and interpretation of the IRSSA. The supervising judge's interpretation of the IRSSA reflects his experience and expertise in his supervisory capacity. It also reflects his thorough, insightful and sensitive analysis of the factual matrix of the agreement.

[208] Those factual findings and interpretations of the IRSSA strongly support his decision to order the eventual destruction of IAP documents. I would not interfere with it.

[209] The supervising judge found that near to absolute confidentiality was a necessary aspect of the IAP. He noted that privacy and confidentiality concerns were an extremely important part of the factual nexus of the negotiation of the IRSSA -- lawyers for class members and lawyers for the church entities were concerned to ensure the privacy and confidentiality of the IAP process.

[210] The claimants and the alleged perpetrators then relied on the confidentiality assurances in the IRSSA in the course of the IAP. Without those assurances the IAP would not have functioned, and the IRSSA would not have achieved its goal of compensation.

[211] The supervising judge also found [at para. 176] that the IAP documents contained the "most private and most intimate personal information", including allegations of sexual abuse, serious physical abuse and [at para. 212] "atrocious acts committed against children". The documents contained first-hand [at para. 212] "accounts of the suffering and of the harm inflicted [page40 ]on the children and the consequences to their physical, mental and serial health".

[212] Those claims were intensely private and difficult to describe in public, particularly because, in the "toxic" environment of the residential schools, some claimants had been abused by other students, or were themselves abusers.

[213] Indeed, the prospect of the IAP documents being archived and potentially disclosed to the public [at para. 214] "caused severe stress and anxiety to Claimants". "[H]aving regard to the various assurances of confidentiality", the supervising judge noted, "they regard disclosure as a betrayal and an egregious breach of confidence and contrary to the IRSSA." The supervising judge accepted the evidence before him that the claimants would be further abused if the contents of the documents were made available to future generations.

[214] Having found that the IAP was intended to be private and confidential, and that claimants and alleged perpetrators were given assurances of confidentiality, the supervising judge was entitled to develop a process to give effect to those intentions and assurances, to protect vulnerable class members from re-victimization and to preserve the integrity of the IAP. In crafting a remedy, he was entitled to consider what the claimants were told, in the guide or elsewhere, about the disposition of their records.

[215] In my view, the supervising judge's order was a reasonable response, harmonious with the IRSSA, to an administrative gap over what to do with highly sensitive documents after their intended use had been fulfilled.

[216] None of the cross-appellants' arguments convince me otherwise.

[217] First, the supervising judge gave [at para. 178] a reasonable interpretation to the statement in Schedule D that "all copies [of the IAP Application Form] other than those held by the Government will be destroyed on the conclusion of the matter". Canada was to retain the documents during a retention period contemplated by the IRSSA when they might be required for legal proceedings. At the end of that period, they would be destroyed.

[218] In any event, I do not think these words can reasonably bear the interpretation suggested by Canada. Canada was a defendant. The mere fact that it was not required to destroy the IAP application immediately on conclusion of an individual's claim does not imply or import a right to keep all IAP documents forever, in an archive, to share with researchers and others.

[219] Second, I do not agree with the argument that the granularity of the stories of every individual survivor who went [page41 ]through the IAP needs to be preserved -- in their applications, evidence, transcripts and the adjudicators' decisions -- to ensure public confidence in the integrity of the IAP or to ensure confidence and transparency in the use of public funds. Public confidence is achieved by Canada's participation in the IRSSA and by the court's approval of the agreement and its supervision of the compensation process. A public record will be preserved through the work of the TRC and the NCTR, which will include thousands of individual stories, freely given. The NCTR will preserve the history of residential school and the stories of survivors who have willingly shared them.

[220] Nor is the preservation of the stories necessary to prevent relitigation of claims. The approval of the settlement provided that all class members who did not opt out were deemed to have released their claims. Any class member who made an IAP claim and exhausted his or her right of appeal will have no further claim as a matter of law, regardless of the outcome of that claim.

[221] Third, I do not agree that the references in Appendix B of the Guide to the Privacy Act and the Access to Information Act mean that the IAP documents are to be under the control of the government. As Canada itself argues, parties cannot contract into or out of the federal legislation. And, as I have found, the documents are not under government control, and thus not subject to those statutes. Mere references to those acts in a document that was not part of the IRSSA does not bring the entire process into the scope of the federal legislation.

[222] There is nothing in the IRSSA, the application form or the guide that would reasonably lead a claimant to understand that his or her intensely private story might be preserved and made available to future generations, in the hands of the very party that funded and supervised the residential school in which he or she was abused. There is nothing to indicate that the information may be shared with the TRC or the NCTR without their consent. There is nothing that tells claimants that in return for compensation, they are surrendering control of their stories.

[223] On the contrary, claimants are assured that their personal stories of abuse will be kept confidential and used for one purpose only -- to obtain compensation under the IAP. Indeed, the express provision that the claimant may choose to deposit their transcript in an archive supports the conclusion that the parties intended that the choice of archiving was to be the claimant's, not the government's.

[224] At most, the guide suggested personal information may be held in the National Archives for about 30 years. And the [page42 ]guide, a document that is not part of the IRSSA or the approval order, stated that the IAP would deal with personal information in accordance with the Access to Information Act, Privacy Act and any other applicable law. Those statements suggest that the government would hold information because it was required to by law, not by choice. As I have explained, the underlying understanding was mistaken, as the IAP documents are not government records.

[225] I also note that the guide does not inform claimants of the potential for disclosure under federal legislation. It does not explain that privacy protection ceases 20 years after the death of the individual, or 110 years after his birth, so that private [information] could be disclosed to his children, family members, friends or members of his community: Privacy Act, s. 3 "personal information" (m); Privacy Regulations, SOR/83-508, s. 6(c). Nor that other individuals identified in IAP documents, including alleged perpetrators, may be able to obtain any documents in which they are mentioned: Privacy Act, s. 12. Nor that the head of the government institution holding the documents always has the discretion to disclose the documents if, in his or her view, the public interest outweighs the individual's privacy interest: Privacy Act, s. 8(2)(m)(i). And it did not inform claimants that records archived with Library and Archives Canada may be accessed by anyone granted departmental research status, nor that the TRC had been granted this status.

[226] Finally, I disagree that retention of all IAP documents is necessary to preserve the historical record of residential schools.

[227] The IRSSA gave careful consideration to how the history of residential schools would be preserved. It gave the TRC the task of creating a permanent record of the residential school system and it created the NCTR as a permanent repository for documentation related to residential schools, including some documents used in or created by the IAP.

[228] But the IRSSA put the survivors, not Canada and not anyone else, in control of their own stories. Many survivors -- thousands -- have chosen to share their stories with the TRC. Others have shared or will share some or all of their documents with the NCTR. Those who have not chosen to do so, or do not wish to do so, should not have to run the risk that any part of their stories will be stored, against their will, in a government archive and possibly disclosed at some time, even far into the future. This unacceptable risk would be antithetical to the very purpose of the IRSSA -- healing and reconciliation.

[229] In my view, this was done advisedly -- that is, to take the preservation of the history of residential schools out of the [page43 ]hands of Canada, which bore responsibility for the residential school system, and into the hands of the survivors, under the oversight of an independent body.

[230] The supervising judge's disposition of the IAP documents, together with the right of claimants to tell their stories to the TRC and to archive their records with the NCTR, is faithful to the intent of the IRSSA and provides an appropriate balance between preserving the history of residential schools and protecting claimants' privacy.

[231] I would therefore dismiss this cross-appeal.

(3) Collateral issues

[232] I will address the remaining issues in the cross-appeal under this heading. I will also address submissions by the TRC on the supervising judge's costs award.

(a) The retention period

[233] The supervising judge concluded that the IAP documents should be destroyed after a 15-year retention period, during which they might be disclosed for the very limited purpose of criminal or child protection proceedings. During this period, claimants would have an opportunity to archive their documents with the NCTR. He concluded this reflected the intent of the parties as expressed in the IRSSA. His selection of 15-year period was based on the "ultimate limitation period" in the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B.

[234] While I agree with the submissions of the chief adjudicator and independent counsel that a longer retention period increases the risk of accidental disclosure, in my view, the 15-year period is not unreasonable, and I would not interfere with it. The 15-year period recognizes that the IAP documents may unexpectedly become relevant years after the claim process appears to have been completed. For example, this could be for legal purposes such as the late filing of appeals where an extension of time would be granted, to pursue claims of solicitor's negligence, to investigate issues of misconduct, or to deal with complications in the administration of the notice program and the transfer of documents to the NCTR with the claimant's consent.

(b) The notice program

[235] The next question is whether the notice program should be administered by the TRC, the NCTR or by some other entity.

[236] I concluded earlier that the supervising judge had jurisdiction to establish a notice program to inform claimants of their rights and to permit them to exercise those rights. He [page44 ]directed that the TRC or the NCTR may give notice to claimants that, with their consent, their IAP applications, transcripts or audio recordings of their evidence and the adjudicator's decisions could be archived at the NCTR, provided personal information about alleged perpetrators or affected parties was redacted. He stated that the terms of the notice program would be settled at another hearing. He found that the precise terms of the notice program would have to be designed in a way that [at para. 372] "respects what is a very difficult, very private and very personal decision".

[237] I agree with the submissions of independent counsel, supported by the chief adjudicator, that it is unreasonable for either the TRC or the NCTR to conduct the notice program. The notice does not fall within the mandate of either entity and, most importantly, it would be a breach of confidence to provide them with the information necessary for a notice program.

[238] While I expect both could provide a meaningful contribution to the program, particularly since the NCTR would be housing the archived documents, in my opinion, the notice program should be carried out by the chief adjudicator, on such terms as may be approved by the supervising judge. As the supervising judge indicated, this should be determined after an evidence-based inquiry.

[239] Given the passage of time since the IAP began, and the advanced age of some of the claimants, I repeat the supervising judge's entreaty that the notice program should be undertaken at the earliest possible time. It behooves all parties to co-operate in this undertaking.

(c) Documents produced in the alternative dispute resolution process

[240] The supervising judge did not explicitly address the disposition of the documents produced in the ADR process that preceded the IRSSA. Article 15.02 of the IRSSA and Schedule N para. 11 provided that the pending claims under the dispute resolution process would be transferred to the IAP and that documentation from the dispute resolution process could be transferred to the TRC. The secretariat holds the records of all claims in which there was a dispute resolution hearing before the IRSSA or where a claim in progress was transitioned to the IAP. It has been held that the IAP is a successor to the dispute resolution process: Fontaine v. Canada (Attorney General), [2012] B.C.J. No. 1154, 2012 BCSC 839, at para. 31.

[241] Since the intent of the IRSSA was to roll all existing litigation into the IAP, the records of the predecessor process are [page45 ]subject to the court's supervisory jurisdiction. Consistency and fairness require that they be treated in the same manner as the IAP documents.

(d) Costs award

[242] The TRC appeals the supervising judge's order that it pay costs to independent counsel in the amount of $35,000, all inclusive. In ordering those costs, the supervising judge acknowledged that there was some attraction to making no order as to costs, partly because the TRC, although not a party to the IRSSA, had an important role to play in it.

[243] However, he was persuaded to award costs for two reasons. First, the important role played by independent counsel in the proceedings for IAP claimants. Second, in bringing its RFD the TRC could have anticipated that it would have to bear the costs of discharging its mandate under the IRSSA, including the costs of those who opposed the RFD.

[244] The TRC has not established that the supervising judge made an error in principle in the exercise of his discretion as to costs. Nor is the award plainly wrong: Hamilton Open Window Bakery Ltd., [2004] 1 S.C.R. 303, [2003] S.C.J. No. 72, 2004 SCC 9, para. 27. There is no merit to the suggestion that the TRC was denied procedural fairness by not having an opportunity to deliver further reply costs submissions when it had already replied to the submissions of independent counsel. I would therefore dismiss this appeal.

G. Conclusion

[245] The IRSSA established a comprehensive framework for the compensation of survivors and preservation of the history of residential schools, guided by the principle that the survivors should control the fate of their own stories. That provided them with the right to archive the stories they told in the claims process for survivors of serious sexual, physical or psychological harm. It also provided, and was structured accordingly to do so, that no one else could keep those stories against their wishes, not even the government, except in accordance with the process designed to enforce their right to access justice for the harms done to them.

[246] In my view, the supervising judge's order was harmonious with this principle. Save for two procedural details, I would affirm it in its entirety.

H. Disposition

[247] For these reasons, the order of the supervising judge is varied to provide (a) that the chief adjudicator shall conduct the [page46 ]notice program; and (b) that the ADR documents are to be dealt with in the same manner as the IAP documents.

[248] The appeals and cross-appeals are otherwise dismissed.

[249] No submissions were made as to costs. In view of the public importance of this appeal, it is arguable that there should be no order as to costs. I would, however, provide that any party seeking costs may deliver written submissions, no more than five pages in length, excluding the costs outline, within 30 days of the release of these reasons. Any party responding to those submissions may deliver its submissions, also no more than five pages, within 30 days of receipt.

SHARPE J.A. (dissenting): --

A. Overview

[250] I agree with the chief justice, for the reasons he gives, that the appeals of the Catholic entities should be dismissed. However, I respectfully disagree with his conclusion that the cross-appeals brought by the Truth and Reconciliation Commission ("TRC") and Canada should be dismissed. For the following reasons, I would allow the cross-appeals on the ground that the IAP documents held by Canada through the Settlement Agreement Operations Branch ("SAO") of Aboriginal Affairs and Northern Development Canada ("AANDC") are "government records", and set aside the supervising judge's order to the extent that it requires the destruction of the IAP documents in the possession and control of the SAO.

[251] In my view, the IAP documents held by Canada, which include the decisions of IAP adjudicators ordering Canada to pay claimants millions of dollars, fall squarely within the legal definition of government records. The IAP documents are therefore subject to the regime mandated by Parliament in the Privacy Act, R.S.C. 1985, c. P-21 the Access to Information Act, R.S.C. 1985, c. A-1 and the Library and Archives of Canada Act, S.C. 2004, c. 11 for the protection of private information, access to government records and the preservation of Canada's documentary heritage for the benefit of present and future generations.

[252] In my respectful view, the legal doctrines relied on by the supervising judge, namely, the implied undertaking rule and breach of confidence, do not apply to the IAP documents held by Canada and do not remove them from the category of government records subject to federal legislation. Nor does the doctrine of inherent jurisdiction, applied by the chief justice, justify exempting the IAP documents from the legislation. In my [page47 ]view, neither the supervising judge nor the chief justice offers any valid legal basis to justify an order for the destruction the IAP documents possessed and controlled by Canada contrary to the express provisions of the federal legislation.

[253] I recognize that the IAP process involved claimants revealing traumatic and highly sensitive personal matters to the adjudicators who decided their claims. I fully accept that claimants are entitled to the protection afforded by the law to such highly sensitive matters.

[254] The IAP process was, however, also an integral part of truth and reconciliation, an important moment in Canadian history when all Canadians, aboriginal and non-aboriginal, confronted the shocking treatment of generations of aboriginal children in the residential school system and searched for ways to repair the damage.

[255] The TRC took the lead in resisting the request that the IAP documents be destroyed. In a letter to Dean Mayo Moran, chair of the IAP Oversight Committee, quoted at para. 239 of the supervising judge's reasons, Justice Murray Sinclair, chair of the TRC, explained why:

The preservation of IAP records is fundamental to maintaining a full and complete record of Residential Schools. Future generations will never know what went on in the schools if the records are lost. It will be easy to dismiss second and third hand accounts of that history without the first-hand accounts to add their weight of truth.

As the TRC puts it in its factum, reconciliation requires knowledge, not destruction of our past.

[256] The three statutes to which I have referred define a carefully considered balance between the conflicting interests at issue on this appeal: individual privacy and confidentiality on the one hand and the public interest in the preservation of Canada's history on the other.

[257] The legislative scheme extends a significant level of protection for the privacy and confidentiality of IAP claimants. Finding the IAP documents to be government records, to be archived rather than destroyed, will not have the effect of making them immediately or readily available to the public as is suggested by many of the submissions we have heard. The effect will be, rather, to subject the IAP documents to a legislative scheme carefully designed to balance the interests of privacy and confidentiality with the interest of preserving Canada's historical heritage, a balance that extends generous protection to the interests of privacy and confidentiality by preventing disclosure until many years after the death of the IAP claimant. [page48 ]

[258] I also agree with Canada and the TRC that the terms of the IRSSA did not contemplate the destruction of the IAP documents but rather point to their treatment under the statutory scheme as government records.

B. Are the IAP Documents "Government Records"?

[259] The central issue on this appeal is whether the IAP documents are government records within the meaning of the Privacy Act, Access to Information Act and Library and Archives of Canada Act. As the chief justice has carefully set out, records that are under the "control" of a government institution are "government records" that are subject to the regime of these three closely related statutes.

[260] It is not disputed that the SAO of AANDC is a government institution, and that it has physical possession of copies of the IAP documents in its capacity as the department of government responsible for carrying out Canada's functions as a defendant in the IAP. It follows that if SAO's possession amounts to "control" of the IAP documents, the three-statue regime for the protection of privacy and preservation of government documents applies.

[261] "Control" is not a defined term in the legislation, but there is an extensive body of jurisprudence from the Federal Court holding that "control" is to be given a broad and liberal interpretation consistent with its ordinary and popular meaning. The tenor of that jurisprudence is thoroughly explained in the chief justice's reasons and needs no repetition here.

[262] As I read the chief justice's reasons, he agrees that but for an expansion of the implied undertaking rule by way of the inherent jurisdiction doctrine, SAO has control of the IAP documents within the meaning of the legislation. Before explaining why I cannot agree that either the implied undertaking rule or the inherent jurisdiction doctrine apply to the IAP documents, I propose to outline the statutory scheme that I say does apply.

(1) The legislation

[263] The purpose of the Privacy Act, as stated in s. 2, is "to extend the present laws of Canada that protect the privacy of individuals with respect to personal information about themselves held by a government institution and that provide individuals with a right of access to that information". Personal information is broadly defined in the Privacy Act and would unquestionably include the information about claimants revealed by the IAP documents. [page49 ]

[264] The purpose of the Access to Information Act, as stated in s. 2, is "to provide a right of access to information in records under the control of a government institution" in accordance with certain principles, namely "that government information should be available to the public", that exceptions to the right of access "should be limited and specific" and that "decisions on disclosure of government information should be reviewed independently of government".

[265] Given the importance of protecting privacy in personal information and ensuring public access to government records, the Supreme Court of Canada has described the Privacy Act as "quasi-constitutional": see Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773, [2002] S.C.J. No. 55, 2002 SCC 53, at para. 24.

[266] It is common ground on these appeals and cross-appeals that the IAP documents contain "personal information", and that if they are "government records", they would attract the protection of the Privacy Act. When that Act is read together with the Access to Information Act, so long as the records are held by the government institution, the legislative scheme protects the right of the claimant to access his or her personal information, but precludes others from doing so by requiring the head of the government institution to refuse disclosure of the record; disclose only the parts of the record that can reasonably be severed from the parts containing personal information; or disclose the personal information for only very limited and specific purposes in accordance with the Privacy Act: see Access to Information Act, ss. 19(1), 25; Privacy Act, s. 8(2). Even where the head of the government institution has the discretion, under the Privacy Act, s. 8(2)(j), to disclose personal information for research or statistical purposes, disclosure is made in a way that ensures the ongoing protection of an individual's privacy.

[267] Canada provided evidence of the policies and practices AANDC has developed generally to deal with access to information requests for records containing personal information while the records are still within its control. These policies and practices ensure the protection of the privacy and confidentiality of IAP claimants in accordance with the legislative regime.

[268] The final piece of the trilogy of federal legislation is the Library and Archives of Canada Act. The purposes of the Act, described in the preamble, include the preservation of "the documentary heritage of Canada . . . for the benefit of present and future generations" and to create an institution to "serve as the continuing memory of the government of Canada and its institutions". The objects of the Library and Archives of Canada ("LAC"), [page50 ]as described in s. 7, include serving as "the permanent repository of . . . government and ministerial records that are of historical or archival value".

[269] In general, upon the expiry of the mandated period of retention by the government department that holds the documents, a minimum of two years after last use under the Privacy Regulations, SOR/83-508, s. 4, the disposition of records is dealt with pursuant to an arrangement referred to as a Records Disposition Authority ("RDA") issued by the Librarian and Archivist of Canada. Records considered by LAC to be of historic and archival importance must be transferred to LAC. The remaining documents can be disposed of by the department when they are no longer required for operational or legal reasons.

[270] Of particular significance to this appeal is that s. 12 of the Library and Archives of Canada Act makes clear that government institutions do not have the option of destroying their "government records" without the approval of LAC:

12(1) No government or ministerial record, whether or not it is surplus property of a government institution, shall be disposed of, including by being destroyed, without the written consent of the Librarian and Archivist or of a person to whom the Librarian and Archivist has, in writing, delegated the power to give such consents.

[271] The IAP documents were evaluated by LAC and, in August 2012, LAC and AANDC entered an agreement for the transfer of records. LAC subsequently issued an RDA specifying that all "electronic copies of the Notice of Decision document and Settlement Package for each IAP and ADR case" must be transferred to it. In addition, records relating to strategic aspects of the IAP process and certain other documents relating to the ADR process were to be transferred. This latter category of documents is uncontroversial and falls outside the class of documents with which we are concerned on this appeal. While LAC can issue new directions, the only IAP documents covered by the current RDA are the notices of decision of the IAP adjudicators. AANDC is at liberty to dispose of the remaining documents.

[272] The Privacy and Access Acts, read together, prescribe a limited period during which only the individual has access to his or her personal information by excluding from the definition of personal information in the Privacy Act, "information about an individual who has been dead for more than twenty years". The Privacy Regulations, s. 6, also provide, among other things, as follows with respect to personal information that has been transferred to the control of LAC:

6. Personal information that has been transferred to the control of the Library and Archives of Canada by a government institution for archival or [page51 ]historical purposes may be disclosed to any person or body for research or statistical purposes where

(a) the information is of such a nature that disclosure would not constitute an unwarranted invasion of the privacy of the individual to whom the information relates;

(c) 110 years have elapsed following the birth of the individual to whom the information relates[.]

[273] I think it clear that disclosure of the personal information contained in the IAP documents transferred to LAC could not be justified under s. 6(a). Other provisions found in s. 6 either would not apply to the IAP documents or would require (as with disclosure under the Privacy Act, s. 8(2)(j)) additional measures to be taken to protect individual privacy. The net result is that although government records are preserved for their historic and archival importance, access to the records is highly restricted. For the purposes of this appeal, the outcome of the legislative scheme is that the personal information of IAP claimants cannot be accessed by anyone other than the IAP claimant during the claimant's lifetime except for narrow and restrictive purposes or in ways that ensure the ongoing protection of individual privacy. The combination of the 20-year after death provision in the Privacy Act and the one hundred and ten years after birth provision in the Library and Archives of Canada Act protects the information from disclosure for a minimum period of 20 years after death of the IAP claimant unless the IAP claimant lives past 90.

(2) The implied undertaking rule

[274] In my view, the supervising judge erred in law in holding that the implied undertaking rule applied to the IAP documents and that they were therefore not under the control of SAO. He relied on Andersen Consulting v. Canada, 2001 CanLII 22032 (FC), [2001] F.C.J. No. 57, [2001] 2 F.C.R. 324 (T.D.), where the Trial Division of the Federal Court applied the implied undertaking rule to order the return or destruction of documents obtained by the government through the discovery process in a civil action. When the case settled before trial, Canada took the position that it was obliged by law to retain the documents and archive them at what is now the LAC under the predecessor to the Library and Archives of Canada Act. Hugessen J. rejected that contention and concluded that as the documents had been obtained through discovery, the operation of the implied undertaking rule removed them from government control. [page52 ]

[275] Assuming, without deciding, that Andersen Consulting was correctly decided, in my view, it has no application to this case. The implied undertaking rule relates to the discovery process in civil litigation. The rule, recognized by this court in Goodman v. Rossi (1995), 1995 CanLII 1888 (ON CA), 24 O.R. (3d) 359, [1995] O.J. No. 1906 (C.A.), precludes a party to a civil action from using information disclosed on discovery for any purpose other than the litigation in which the information was produced. In Juman v. Doucette, [2008] 1 S.C.R. 157, [2008] S.C.J. No. 8, 2008 SCC 8, at para. 27, Binnie J. explained the rule as follows:

[T]he law imposes on the parties to civil litigation an undertaking to the court not to use the documents or answers [obtained on discovery] for any purpose other than securing justice in the civil proceedings in which the answers were compelled (whether or not such documents or answers were in their origin confidential or incriminatory in nature).

(Emphasis in original)

[276] There are two rationales for the rule. First, the "rule rests on the statutory compulsion that requires a party to make documentary and oral discovery regardless of privacy concerns": Juman, at para. 3. Second, the rule encourages complete and candid participation in the discovery process: see Juman, at para. 26. In Goodman v. Rossi, at p. 369 O.R., this court adopted the following statement (from Paul Matthews and Hodge M. Malek, Discovery (London: Sweet & Maxwell, 1992), at p. 253), as a compendious statement of these rationales:

The primary rationale for the imposition of the implied undertaking is the protection of privacy. Discovery is an invasion of the right of the individual to keep his own documents to himself. It is a matter of public interest to safeguard that right. The purpose of the undertaking is to protect, so far as is consistent with the proper conduct of the action, the confidentiality of a party's documents. It is in general wrong that one who is compelled by law to produce documents for the purpose of particular proceedings should be in peril of having those documents used by the other party for some purpose other than the purpose of the particular legal proceedings and, in particular, that they should be made available to third parties who might use them to the detriment of the party who has produced them on discovery. A further rationale is the promotion of full discovery, as without such an undertaking the fear of collateral use may in some cases operate as a disincentive to proper discovery. The interests of proper administration of justice require that there should be no disincentive to full and frank discovery.

[277] In my view, neither the implied undertaking rule nor the rationales that underlie it apply to the IAP documents.

[278] The IAP claimants were not compelled to produce any of the IAP documents in a discovery-like process. They were, of course, required to follow the prescribed procedure to make a claim, but it was for them to decide what to submit. That is quite different from a party to litigation being compelled to respond in [page53 ]a pre-hearing discovery process to requests from the opposing party for documents or information they would not otherwise reveal.

[279] The application form, moreover, closely resembled a statement of claim: see Fontaine v. Canada (Attorney General), [2014] O.J. No. 195, 2014 ONSC 283, at para. 76: "The IAP begins with an application that appears to serve functions similar to a statement of claim." It has never been suggested that a pleading is subject to the implied undertaking rule. Nor does the rule apply to documentary or testimonial evidence led at a hearing, even when used by the opposing party: see Juman, at para. 51: "When an adverse party incorporates the answers or documents obtained on discovery as part of the court record at trial the undertaking is spent[.]"

[280] Even more remote from the reach of the implied undertaking rule are the decisions of the IAP adjudicators. I see no basis for finding that the final decision in a proceeding is caught by the implied undertaking rule. This is particularly pertinent because, as I have pointed out, the decisions are the only IAP documents to be archived with LAC under the current RDA.

[281] Canada paid millions of dollars of public funds to IAP claimants on the basis of the IAP decisions. How could it possibly be that a decision used to justify the expenditure of public funds was not a document within the "control" of the government?

[282] Finally, the implied undertaking rule governs the improper use of documents obtained through discovery: one party cannot force the other party to disclose a document for one purpose and then use document for a different purpose. In my view, preserving documents in the national archives does not amount to using, let alone improperly using, the documents.

(3) Inherent jurisdiction

[283] In his reasons, the chief justice acknowledges that "the implied undertaking rule is not a precise fit for the IAP documents". But he then resorts to the doctrine of inherent jurisdiction and, referring to the rationale underlying the implied undertaking rule, extends it to the IAP documents, thereby removing them from the control of the SAO and the reach of the federal legislative regime.

[284] I respectfully disagree with that reasoning. The rationales underlying the implied undertaking rule that have been identified in the decisions of this court and the Supreme Court of Canada rest on the need to protect the integrity of the discovery [page54 ]process in civil litigation. As I have attempted to explain, those rationales do not apply to the IAP process.

[285] If the implied undertaking rule and its underlying rationales do not apply, we are left with this: applying the legislation and the settled jurisprudence on "government records" and the meaning of "control", the IAP documents are government records and subject to the regime legislated by Parliament. That regime provides that government records can only be destroyed with the written consent of LAC. I respectfully disagree that this or any other court has inherent jurisdiction to exempt the IAP documents from the reach of the statutory regime because it thinks that it would be fairer to all concerned if the documents were destroyed.

[286] In his seminal and often quoted article, "The Inherent Jurisdiction of the Court" (1970), Curr. Legal Probs. 23, Sir Jack Jacob states, at p. 24: "[T]he court may exercise its inherent jurisdiction even in respect of matters which are regulated by statute or by rule of court, so long as it can do so without contravening any statutory provision" (emphasis added). That passage has been quoted with approval by the Supreme Court of Canada and by the Supreme Court of the United Kingdom: see R. v. Caron, [2011] 1 S.C.R. 78, [2011] S.C.J. No. 5, 2011 SCC 5, at para. 32; Ontario v. Criminal Lawyers' Assn. of Ontario, [2013] 3 S.C.R. 3, [2013] S.C.J. No. 43, 2013 SCC 43, at para. 23; Al Rawi v. The Security Service, [2011] UKSC 34, [2012] 1 A.C. 531, at para. 18. Caron states, at para. 30: "Of course the very plenitude of this inherent jurisdiction requires that it be exercised sparingly and with caution." Ontario v. Criminal Lawyers' Assn. of Ontario cautions, at para. 23: "It has long been settled that the way in which superior courts exercise their powers may be structured by Parliament and the legislatures."

[287] Parliament has determined the level of protection to be accorded to personal information in government records when balanced with the need to preserve Canada's historical heritage. Although this may be less protection than the respondents to the cross-appeal seek, and that the supervising judge and the chief justice think is appropriate, it is a generous level of protection and it is the level of protection that Parliament has decreed.

[288] I add here that the supervising judge made no reference to inherent jurisdiction in his reasons and inherent jurisdiction was not raised or argued before this court in either oral or written submissions.

[289] The concerns I have identified apply to all of the IAP documents, but I find it particularly difficult to justify resorting [page55 ]to the doctrine of inherent jurisdiction in this case to order the destruction of the decisions of IAP adjudicators.

[290] The integrity of any judicial or tribunal decision-making process ultimately rests on the quality of the decisions it produces. The Supreme Court of Canada has recognized that reasoned judgments are "central to the legitimacy of judicial institutions in the eyes of the public": R. v. Sheppard, [2002] 1 S.C.R. 869, [2002] S.C.J. No. 30, 2002 SCC 26, at para. 5. In my respectful view, the court should not resort to a residual, discretionary and exceptional doctrine to justify the destruction of decisions that are central to the legitimacy of the very process the court is administering.

C. The Terms of IRRSA Relating to the Destruction of IAP Documents

(1) Standard of review

[291] I do not propose to engage in a lengthy discussion of the standard of review applicable to the supervising judge's interpretation of the IRSSA, and in particular, to his conclusion that the agreement explicitly or implicitly provides for the destruction of the IAP documents. In my view, whether the standard of review is reasonableness, as the chief justice suggests, or correctness, this conclusion cannot withstand scrutiny.

[292] I do not, however, wish to be taken to agree that the standard of review is reasonableness in this case. At issue is an agreement that bound the Government of Canada to establish one of the most important public inquiries in Canadian history and to spend over $2 billion of public funds. The agreement affects the rights of tens of thousands of residential school survivors, and impacts the interests of a long list of religious institutions and alleged perpetrators. The agreement relates to a pressing issue of public policy and the righting of a dreadful historical wrong.

[293] The case before us, it seems to me, is radically different than the decision of an arbitrator resolving a dispute between two private commercial entities, disputing the value of a finder's fee, that was at issue in Sattva Capital Corp. v. Creston Moly Corp., [2014] 2 S.C.R. 633, [2014] S.C.J. No. 53, 2014 SCC 53.

[294] The IRRSA is a contract, but it is not a contract that deals with merely private commercial interests. It is an agreement that has an overwhelmingly public law flavour and has very significant implications for Canada and our aboriginal peoples. Goudge J.A. made this very observation in [page56 ]Fontaine v. Canada (Attorney General) (2013), 114 O.R. (3d) 263, [2013] O.J. No. 406, 2013 ONSC 684 (S.C.J.), at para. 56:

I am not sure that the Settlement Agreement can be said to be simply a private contract that should be governed only by private law concepts like privity. There are arguably aspects of the Settlement Agreement that seek to structure relationships between Canada and Aboriginal people. The preamble of Sch. N says as much. Moreover, the TRC itself, while a product of the Settlement Agreement is established by an Order-in-Council which sets out its mandate. These two considerations raise the possibility that the Settlement Agreement can be viewed through the lens of public law as well as private law.

And, as the supervising judge put it, at para. 88 of his reasons: "The IRSSA is not a treaty between Canada and its Aboriginal peoples, but it is at least as important as a treaty." He has since echoed this observation: see Fontaine v. Canada (Attorney General), [2015] O.J. No. 2881, 2015 ONSC 3611 (S.C.J.), at para. 53.

[295] In any event, even if the standard of review is reasonableness, it is my view that the Supervising Judge made extricable errors of law and palpable and overriding errors of fact justifying this court's intervention.

(2) Interpreting the IRRSA's express terms

[296] The supervising judge found that the parties bargained for destruction of the documents but, despite the fact that the IRRSA dealt at some considerable length with confidentiality, he could point to no specific term of the IRRSA that authorized the destruction of all IAP documents. In my view, the only references to destruction of documents in the agreement and its schedules point to preservation of the documents in the hands of Canada as government records, not their complete destruction.

[297] Schedule D, Appendix II, provides for making the IAP application documents available to the government or a church entity. The use to which such documents may be made is carefully circumscribed to preclude disclosure to others in violation of the promise of confidentiality. Copying and destruction of copies of the application form is dealt with, at para. iv, as follows:

pCopies will be made only where absolutely necessary and all copies other than those held by the Government will be destroyed on the conclusion of the matter, unless the claimant asks that others retain a copy, or unless counsel for a party is required to retain such copy to comply with his or her professional obligations.

(Emphasis added)

[298] This provision indicates that the parties did turn their minds to the question of the destruction of documents. [page57 ]They specifically provided that documents held by the government would not be destroyed.

[299] The supervising judge, at para. 321 of his reasons, interpreted this provision as providing for a "retention period", with reference to a provision in Appendix B to the guide. He found that while the IAP documents would be kept confidential, there were situations where the government would have to provide information to the police if needed for a criminal investigation or if needed in connection with child welfare proceedings. He found that the provision stating that "all copies other than those held by the Government will be destroyed on the conclusion of the matter" was there "precisely because there needs to be a retention period where the IAP Documents would be available for criminal and child welfare proceedings".

[300] In my respectful view, that is not a reasonable interpretation. The provision relied on by the supervising judge merely states that while the government has the documents, it must respond to lawful investigatory requests. There is nothing in the provision that requires the government to hold the documents for a different or longer period to be able to respond to inquiries from the police or child welfare authorities. The words "all copies other than those held by the Government will be destroyed on the conclusion of the matter" cannot reasonably be explained away on the basis of a retention period that the agreement does not contemplate.

[301] I do not accept the submission that this provision should be read down and only applied to documents held by the government during a "retention period" for so long as they are needed to resolve the claim. The agreement does not refer to any "retention period". Nor can that reading be reasonably reconciled with the language of the provision itself which specifically refers to "the conclusion of the matter". That language is sufficient to cover any period, retention or otherwise, during which the documents are needed in relation to the IAP claim, after which all documents other than those held by the government are to be destroyed.

[302] The other specific reference to destruction of documents is found in Appendix B to the guide. As the chief justice points out in his reasons, the parties disagree as to whether the guide was formally part of the IRRSA. It is undisputed, however, that the terms of the guide had been negotiated and agreed upon by the parties at around the time when the IRRSA was approved. In my view, the guide provides clear evidence that the parties understood that the IAP documents were to be governed by the [page58 ]privacy, access and preservation of government records provisions of federal legislation.

[303] Appendix B, entitled "Protection of your personal information", explains to claimants that the application form will be treated "with care and confidentiality", under the umbrella of federal privacy and access to information legislation:

The Privacy Act is the federal law that controls the way the government collects, uses, shares and keeps your personal information. The Privacy Act also allows people to access personal information about themselves.

The Access to Information Act is the federal law that allows access to government information. However, it protects certain kinds of information, including personal information.

We will deal with personal information about you and other people you identify in your claim privately and confidentially. We will do so in accordance with the Access to Information Act, the Privacy Act, and any other applicable law, or we will ask your permission to share information.

(Emphasis added)

[304] The IRSSA deals at considerable length and in considerable detail with the issue of confidentiality and nowhere does it mention the possibility that the IAP documents will be destroyed other than with the approval of LAC. The crucial reference to destruction of documents is found in Appendix B under the heading "Keeping your records":

The Privacy Act requires the government to keep your personal information for at least two years. Currently, the government keeps this information in the National Archives for 30 years, but this practice can change at any time. Only the National Archivist can destroy government records.

(Emphasis added)

This statement indicates that the parties did turn their minds both to the need to protect confidentiality and to the need to preserve records in accordance with the law. They recognized and accepted that under that legal framework, "[o]nly the National Archivist can destroy government records".

[305] The supervising judge quoted the guide provision stating that "[o]nly the National Archivist can destroy government records", at para. 179 of his reasons, but did not explain why he gave it no effect. In my respectful view, he erred in law by failing to give effect to this express provision or to provide some adequate explanation for why he chose not to.

[306] The supervising judge stated, at para. 322 of his reasons, that the parties bargained for destruction of the documents but, in the same paragraph, stated that the guide omitted "the point that eventually the documents would be destroyed". Those findings are contradictory and cannot survive even [page59 ]a deferential standard of review. They fly in the face of the only terms in the IRRSA and the guide that dealt with the destruction of documents.

(3) Implied term

[307] In his reasons, the chief justice refers to the supervising judge being entitled to order destruction of the IAP documents to fill "gaps and unfulfilled promises". Later in his reasons he refers to the supervising judge's authority "to remedy the IRRSA's administrative deficiency on the disposition of IAP Documents". With respect, there is no gap or administrative deficiency, unless the supervising judge was entitled to create one because he did not like the result the terms of the agreement produced. The task of the court when interpreting an agreement is to give effect to the plain meaning of the express language chosen by the parties in drafting the agreement. The agreement clearly states that the documents can only be destroyed with the consent of the LAC. Nor is there any basis for finding that this carefully negotiated, detailed and comprehensive agreement left any promise unfulfilled.

[308] It is not appropriate to imply a term that contradicts the express words of the agreement: see Attorney General of Belize v. Belize Telecom Ltd., [2009] UKPC 10, [2009] 1 W.L.R. 1988, at para. 16; Marks & Spencer Plc v. BNP Paribas Securities Services Trust Co (Jersey) Ltd., [2015] UKSC 72, [2015] 3 W.L.R. 1843, at para. 21. The only references to destruction of documents in the agreement point to the preservation of the documents held by Canada. This leaves no room to imply a term to the contrary.

[309] Even if the agreement were silent on destruction, which it is not, silence is not a void permitting the court to imply a term requiring destruction in the face of the legislation. As Hoffman L.J. observed in Belize Telecom, at para. 17:

The question of implication arises when the instrument does not expressly provide for what is to happen when some event occurs. The most usual inference in such a case is that nothing is to happen. If the parties had intended something to happen, the instrument would have said so. Otherwise, the express provisions of the instrument are to continue to operate undisturbed. If the event has caused loss to one or other of the parties, the loss lies where it falls.

(Emphasis added)

[310] The supervising judge identified but failed to apply the proper test for the implication of a contractual term. As Iacobucci J. observed in M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd., 1999 CanLII 677 (SCC), [1999] 1 S.C.R. 619, [1999] S.C.J. No. 17, at para. 29: [page60 ]

What is important . . . is a focus on the intentions of the actual parties. A court, when dealing with terms implied in fact, must be careful not to slide into determining the intentions of reasonable parties. That is why the implication of the term must have a certain degree of obviousness to it, and why, if there is evidence of a contrary intention, on the part of either party, an implied term may not be found on this basis. As G.H.L. Fridman states in The Law of Contract in Canada (3rd ed. 1994), at p. 476:

In determining the intention of the parties, attention must be paid to the express terms of the contract in order to see whether the suggested implication is necessary and fits in with what has clearly been agreed upon, and the precise nature of what, if anything, should be implied.

(Italics in original, underlining added)

[311] The express language to which I have referred is clear evidence of the parties' intention that the government's copy of the application form would not be destroyed and that the IAP documents would be kept by Canada in accordance with federal privacy, access and archives legislation. The supervising judge failed to grapple with that language or explain how it was possible to imply a term to the contrary.

D. Breach of Confidence

[312] The respondents to the cross-appeal also rely on oral assurances of confidentiality given to IAP claimants, which the supervising judge also relied on to find that the transfer of the IAP documents to the LAC would amount to a breach of confidence. In my view, there are two reasons why any such assurances cannot be used to justify the exclusion of the documents from the statutory scheme or the destruction of the IAP documents.

[313] First, it is well settled that the government cannot escape the reach of federal privacy and access to information legislation by agreement: Canadian Broadcasting Corp. v. National Capital Commission, 1998 CanLII 7774 (FC), [1998] F.C.J. No. 676, 147 F.T.R. 264 (T.D.), at para. 31; Canada (Information Commissioner) v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 950, 2002 FCA 270, [2003] 1 F.C. 219, at para. 11. The fact that a record contains confidential information that a government department has promised not to disclose does not remove the record from the control of that department: see Rubin v. Canada (Minister of Foreign Affairs and International Trade), [2001] F.C.J. No. 698, 2001 FCT 440, 204 F.T.R. 313 (T.D.), at paras. 17-18.

[314] Second, IAP adjudicators and staff could not promise IAP claimants that the laws of Canada would not apply, nor [page61 ]could they bind Canada, and even if they could, as I have noted, Canada could not promise a level of confidentiality that would take the documents outside the reach of the legislative regime. The point that no one could promise the IAP claimants a level of confidentiality beyond that contemplated by the IRSSA and the law of the land was recognized in a statement made by Daniel Ish, the chief adjudicator, in April 2012 when some concern about the assurances of confidentiality being made by adjudicators was raised:

I think that the best that can be done is rely on [Schedule D to the Settlement Agreement] which essentially says that information will be kept confidential except "as required within this process or otherwise by law". . . In short, I ask adjudicators not to give iron-clad assurances about confidentiality but to advise claimants and other participants that the information is protected by law, will be handled securely and seen by those who have a legitimate need to see it.

[315] As observed in Philip H. Osborne, The Law of Torts, 5th ed. (Toronto: Irwin Law, 2015), at p. 460: "The action for breach of confidence is available when three elements are established namely, the information disclosed is confidential, it is communicated in confidence, and the information is misused by the person to whom it was communicated." The supervising judge found, at para. 360 of his reasons: "[T]he parties and participants contracted out of absolute confidentiality and privacy. There were to be exceptions but those exceptions did not include the imperatives of the Library and Archives of Canada Act." As I have already explained, this interpretation of the IRSSA is an unreasonable one and ignores the plain language of the agreement and guide that provided for Canada's retention of the documents in accordance with the legislative regime.

[316] In my view, it follows that the supervising judge erred in law when he found that the AANDC's agreement with LAC for the transfer of records amounted to a breach of confidence by Canada. The information in IAP documents was communicated in confidence only to the extent that Canada could promise confidentiality in accordance with the applicable legislation. As I have observed, that legislative regime provides for a significant level of protection of personal information. In agreeing to transfer documents to LAC, AANDC was simply following the dictates of the Library and Archives of Canada Act which it could not escape, even if the records contained confidential information. Given the legislative scheme and the express terms of the IRSSA, I also cannot accept that the transfer of the IAP documents to LAC could constitute a "misuse" of the information. [page62 ]

E. Conclusion

[317] The only justification given by the chief justice for removing the IAP documents from the category of "government records" under the applicable federal legislation is an expansion of the implied undertaking rule, created by application of the inherent jurisdiction doctrine. In my respectful view, the settled jurisprudence on the meaning and reach of the implied undertaking rule makes clear that the rule has no application to the IAP documents. The inherent jurisdiction doctrine does not give this or any other court the right to provide exemptions from valid and otherwise applicable legislation because we do not like the result the legislation produces.

[318] Moreover, in my respectful view, it would be contrary to the interests of justice to destroy the IAP documents. The IAP process was an important aspect of a significant moment in Canadian history. The decisions it produced provide a unique window on Canada's struggle to come to grips with the horrors of residential schools. Past wrongs may fester even after we think we have dealt with them. Sometimes errors are made and injustices need to be corrected. There is currently ongoing litigation concerning the legitimacy of arguments made in the IAP process and accepted by IAP adjudicators: see Fontaine v. Canada (Attorney General), [2015] A.J. No. 376, 2015 ABQB 225. While the country moves forward in the hope that we have closed the door on the residential schools travesty, it is impossible to say that the interests of justice will never demand a re-examination of the IAP process.

[319] The point was put eloquently in a statement made by Justice Murray Sinclair, TRC chair, and quoted in the TRC's factum:

Rather than denying or diminishing the harm done, we must agree that this damage requires serious, immediate and ongoing repair. We must endeavour instead to become a society that champions human rights, truth and tolerance, not by avoiding a dark history but rather by confronting it.

[320] If the IAP documents are destroyed, we obliterate an important part of our effort to deal with a very dark moment in our history. If the IAP documents are preserved according to the law, they will be kept from view for many years after the death of the IAP claimants but available thereafter should the need arise to revisit a terrible injustice.

F. Disposition

[321] For the reasons given by the chief justice, I would dismiss the appeals of the Catholic entities, but for these [page63 ]reasons, I would allow the cross-appeals and set aside the supervising judge's order to the extent that it requires the destruction of the IAP documents possessed and controlled by Canada through the SAO.

[322] It follows that I would also set aside the supervising judge's order as to costs and invite written submissions from the parties as to costs both here and below.

Appeal and cross-appeal dismissed.

Notes

[^1]: 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, Les S[pounds]urs de Notre Dame-Auxiliatrice, Les S[pounds]urs de St. Francois d'Assise, Institut des S[pounds]urs du Bon Conseil, Les S[pounds]urs de Saint-Joseph de Saint-Hyacinthe, Les S[pounds]urs de Jésus-Marie, Les S[pounds]urs de l'Assomption de la Sainte-Vierge, Les S[pounds]urs de l'Assomption de la Sainte-Vierge de l'Alberta, Les S[pounds]urs de la Charité de Saint-Hyacinthe, Les Oeuvres Oblates de l'Ontario, Les Résidences Oblates du Québec, S[pounds]urs Grises de Montréal/Grey Nuns of Montreal, Sisters of Charity (Grey Nuns) of Alberta, Les S[pounds]urs de la Charité des T.N.O., Hôtel-Dieu de Nicolet, The Grey Nuns of Manitoba Inc./Les S[pounds]urs Grises du Manitoba Inc., Missionary Oblates - Grandin Province, Les Oblats de Marie Immaculée du Manitoba, The Sisters of the Presentation, The Sisters of St. Joseph of Sault St. Marie, Oblates of Mary Immaculate -- St. Peter's Province, The Sisters of Saint Ann, Sisters of Instruction of the Child Jesus, The Roman Catholic Bishop of Kamloops 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 Archiepiscopal Corporation of Winnipeg, Immaculate Heart Community of Los Angeles, Ca., The Catholic Episcopale Corporation of Mackenzie-Fort Smith, and The Roman Catholic Episcopal Corporation of Prince Rupert.

[^2]: Les S[pounds]urs de Notre-Dame Auxiliatrice, Les S[pounds]urs de Saint-François d'Assise, L'Institut des S[pounds]urs du Bon-Conseil, Les S[pounds]urs de Saint-Joseph de Saint-Hyacinthe, les S[pounds]urs de Jésus-Marie, Les S[pounds]urs de l'Assomption de la Sainte-Vierge, Les S[pounds]urs de l'Assomption de la Sainte-Vierge de l'Alberta, Les S[pounds]urs Missionnaires du Christ-Roi, and Les S[pounds]urs de la Charité de Saint-Hyacinthe.

[^3]: The IAP remains in progress but the application deadline has passed. All IAP hearings have not yet been completed.

[^4]: Quebec, Ontario, Manitoba, Saskatchewan, Alberta, British Columbia, Nunavut, Yukon and Northwest Territories. Residents of the maritime provinces and outside Canada were deemed to be residents of Ontario.

[^5]: The guide went through a number of drafts and it does not appear that there was any final approved draft in place when the IRSSA was signed. The parties do not agree whether the guide was a part of the IRSSA, but a draft version was available when the settlement received court approval. I will refer to the version of the guide in the joint compendium filed by the parties, which does not appear to be materially different from the document referred to by the supervising judge at para. 179 of his reasons.

[^6]: The Privacy Act states "the schedule" instead of "Schedule I".

[^7]: R.S.C. 1985 (3rd Supp.), c. 1, the predecessor to the Library and Archives of Canada Act.

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