COURT OF APPEAL FOR ONTARIO

CITATION: Fontaine v. Canada (Attorney General), 2016 ONCA 813

DATE: 20161101

DOCKET: M47077 (C62519)

Roberts J.A. (In Chambers)

BETWEEN

Larry Philip Fontaine in his personal capacity and in his capacity as the executor of the estate of Agnes Mary Fontaine, deceased, Michelline Ammaq, Percy Archie, Charles Baxter Sr., Elijah Baxter, Evelyn Baxter, Donald Belcourt, Nora Bernard, John Bosum, Janet Brewster, Rhonda Buffalo, Ernestine Caibaiosai-Gidmark, Michael Carpan, Brenda Cyr, Deanna Cyr, Malcolm Dawson, Ann Dene, Benny Doctor, Lucy Doctor, James Fontaine in his personal capacity and in his capacity as the executor of the Estate of Agnes Mary Fontaine, deceased, Vincent Bradley Fontaine, Dana Eva Marie Francey, Peggy Good, Fred Kelly, Rosemarie Kuptana, Elizabeth Kusiak, Theresa Larocque, Jane McCullum, Cornelius McComber, Veronica Marten, Stanley Thomas Nepetaypo, Flora Northwest, Norman Pauchey, Camble Quatell, Alvin Barney Saulteaux, Christine Semple, Dennis Smokeyday, Kenneth Sparvier, Edward Tapiatic, Helen Winderman and Adrian Yellowknee

Plaintiffs Respondent in Appeal Appellant in Cross-Appeal

and

The Attorney General of Canada, The Presbyterian Church in Canada, The General Synod of the Anglican Church of Canada, The United Church of Canada, The Board of Home Missions of the United Church of Canada, The Women’s Missionary Society of the Presbyterian Church, The Baptist Church in Canada, Board of Home Missions and Social Services of the Presbyterian Church in Bay, The Canada Impact North Ministries of the Company for the Propagation of the Gospel in New England (also known as The New England Company), The Diocese of Saskatchewan, The Diocese of the Synod of Cariboo, The Foreign Mission of the Presbyterian Church in Canada, The Incorporated Synod of the Diocese of Huron, The Methodist Church of Canada, The Missionary Society of the Anglican Church of Canada, The Missionary Society of the Methodist Church of Canada (also known as the Methodist Missionary Society of Canada), The Incorporated Synod of the Diocese of Algoma, The Synod of the Anglican Church of the Diocese of Quebec, The Synod of the Diocese of Athabasca, The Synod of the Diocese of Brandon, The Anglican Synod of the Diocese of British Columbia, The Synod of the Diocese of Calgary, The Synod of the Diocese of Keewatin, The Synod of the Diocese of Qu’Appelle, The Synod of the Diocese of New Westminster, The Synod of the Diocese of Yukon, The Trustee Board of the Presbyterian Church in Canada, The Board of Home Missions and Social Service of the Presbyterian Church of Canada, The Women's Missionary Society of the United Church of Canada, Sisters of Charity, A Body Corporate also known as Sisters of Charity of St. Vincent De Paul, Halifax, also known as Sisters of Charity Halifax, Roman Catholic Episcopal Corporation of Halifax, Les Sœurs de Notre Dame-Auxiliatrice, Les Sœurs de St. François D'Assise, Institut des Sœurs du Bon Conseil, Les Sœurs de Saint-Joseph de Saint-Hyacinthe, Les Sœurs de Jésus-Marie, Les Sœurs de l'Assomption de la Sainte Vierge, Les Sœurs de L'Assomption de la Saint Vierge de L'Alberta, Les Sœurs de la Charité de St. Hyacinthe, Les Œuvres Oblates de L'Ontario, Les Résidences Oblates du Québec, La Corporation Épiscopale Catholique Romaine de la Baie James (The Roman Catholic Episcopal Corporation of James Bay), The Catholic Diocese of Moosonee, Sœurs Grises de Montréall/Grey Nuns Of Montreal, Sisters of Charity (Grey Nuns) of Alberta, Les Sœurs de la Charité des T.N.O., Hôtel-Dieu de Nicolet, The Grey Nuns of Manitoba Inc.-Les Sœurs Grises du Manitoba Inc., La Corporation Épiscopale Catholique Romaine De La Baie D'Hudson - The Roman Catholic Episcopal Corporation of Hudson's Bay, Missionary Oblates - Grandin Province, Les Oblats de Marie Immaculée du Manitoba, The Archiepiscopal Corporation of Regina, The Sisters of the Presentation, The Sisters of St. Joseph of Sault St. Marie, Sisters of Charity of Ottawa, Oblates of Mary Immaculate -St. Peter's Province, The Sisters of Saint Ann, Sisters of Instruction of the Child Jesus, The Benedictine Sisters of Mt. Angel Oregon, Les Pères Montfortains, The Roman Catholic Bishop of Kamloops Corporation Sole, The Bishop of Victoria, Corporation Sole, The Roman Catholic Bishop of Nelson, Corporation Sole, Order of the Oblates of Mary Immaculate in the Province of British Columbia, The Sisters of Charity of Providence of Western Canada, La Corporation Épiscopale Catholique Romaine de Grouard, Roman Catholic Episcopal Corporation of Keewatin, La Corporation Archiépiscopale Catholique Romaine de St. Boniface, Les Missionnaires Oblates Sisters de St. Boniface-The Missionary Oblates Sisters of St. Boniface, Roman Catholic Archiepiscopal Corporation of Winnipeg, La Corporation Épiscopale Catholique Romaine de Prince Albert, The Roman Catholic Bishop of Thunder Bay, Immaculate Heart Community of Los Angeles CA, Archdiocese of Vancouver - The Roman Catholic Archbishop of Vancouver, Roman Catholic Diocese of Whitehorse, The Catholic Episcopal Corporation of Mackenzie-Fort Smith, The Roman Catholic Episcopal Corporation of Prince Rupert, Episcopal Corporation of Saskatoon, Omi Lacombe Canada Inc. and Mt. Angel Abbey Inc.

Defendants Appellant in Appeal/Moving Party Respondent in Cross-Appeal

Proceedings under the Class Proceedings Act, 1992, S.O. 1992 c. 6

Catherine Coughlan, for the appellant/moving party

No one appearing for the respondent, M.F. (claimant)

Heard: October 28, 2016

Motion by the appellant for a stay pending appeal.

ENDORSEMENT

[1] The appellant moves for an order staying the July 5, 2016 order of Mr. Justice Paul Perell of the Ontario Superior Court of Justice, until 30 days following the final disposition of the appeal and cross-appeal from this order. The appellant and the claimant/respondent, M.F., also ask that the hearing of the appeal and cross-appeal be expedited.

[2] For the reasons that follow, I would allow the appellant’s motion for a stay and expedite the hearing of the appeal and cross-appeal.

Background

[3] This matter arises out of the adjudication of M.F.’s claim for compensation pursuant to the Independent Assessment Process (“IAP”) established under the Indian Residential Schools Settlement Agreement (“IRSSA”). There is no dispute that over 50 years ago, when he was a child, M.F. was sexually abused by a priest associated with an Indian Residential School known as Spanish Boys’ IRS, and that he has suffered and continues to suffer ongoing serious psychological injuries as a result of this abuse.

[4] Following two reviews of the adjudication and denial of his claim, M.F. made a request for direction to Perell J., as an administrative judge under the IRSSA. M.F.’s claim had previously been denied because of the erroneous finding that M.F. had been abused after the closure of the Spanish Boys’ IRS and therefore did not qualify for compensation under the terms of the IRSSA. By the time of the hearing of M.F.’s request for direction, a document had come to light that demonstrated that M.F. had in fact been abused while the school was still in operation. As a result, the appellant conceded that M.F.’s claim should be referred back for adjudication with directions but that his request for directions was otherwise moot.

[5] The administrative judge agreed with the position of M.F. and the Independent Counsel Group (the participating parties) that the request was not moot because the court’s direction was needed in the interests of justice concerning the review process in relation to factual findings; the appellant’s obligation to produce documents for the adjudicator during the course of an IAP hearing; and the court’s role in supervising the review and re-review process under the IRSSA. The administrative judge concluded and ordered as follows:

(1) although Canada made a mistake in redacting Father B’s name from one of the after-the-fact examined documents, Canada did not breach the IRSSA;

(2) without the benefit of hindsight, I conclude that the Re-Review Adjudicator: (a) erred and did not apply the correct standard for a Re-Review; (b) should have found that the Adjudicator and Re-Adjudicator had failed to apply the IAP Model; and (c) should have made an IAP award to M.F.;

(3) although the court could remit M.F.’s IAP Application to the Chief Adjudicator to assign an Adjudicator to quantify M.F.’s entitlement to an IAP award, the court also had the jurisdiction to quantify M.F.’s award or to direct that it be quantified by a referee of whom, a Master of this court or Court counsel appointed under the IRSSA would be appropriate referees;

(4) in the immediate case, I shall not send the matter back to the Chief Adjudicator or appoint a referee; rather, subject to providing the parties a 30-day opportunity from the date of this decision to settle M.F.’s IAP award and his claim for costs, I shall quantify M.F.’s IAP award and I shall also determine M.F.’s claim for costs;

(5) if the parties are unable to settle the amount of the award and the amount for costs, the parties shall make submissions in writing based on: (a) the record now before the court; (b) a bill of costs with supporting documents; (c) a factum of no more than 30 pages; and (d) a book of authorities; and,

(6) subject to the parties settling the matter, M.F. shall have 60 days from the date of this decision to make his submissions followed by Canada’s submissions within a further 30 days. There shall be no reply submissions without leave.

[6] The issued and entered order also provides for a declaration that M.F. is entitled to compensation for sexual abuse at the SL4 level and for consequential harm at the H4 level.

[7] No further submissions were made by the parties because the appellant launched an appeal from the July 5, 2016 order. M.F. commenced a cross-appeal.

Stay pending appeal

[8] Counsel for the appellant advised that M.F. and the Independent Counsel Group do not oppose the motion for a stay. In their email correspondence that counsel produced, counsel confirmed that they do not oppose the stay motion because of the Chief Adjudicator’s position that if a stay is ordered by this court, current and future re-reviews of claims under the IAP in relation to allegations of factual errors will also be stayed pending the disposition of the appeal.

[9] The test for a stay pending appeal is well-settled and mirrors the test for an interlocutory injunction: the appellant must demonstrate that there is a serious issue to be tried; irreparable harm will result if the stay is not granted; and the balance of convenience favours a stay pending the disposition of the appeal: Longley v. Canada (Attorney General), 2007 ONCA 149, at para. 14. It is also well established that these criteria are not to be viewed in isolation from each other but as interrelated considerations, and that the overarching question is whether the stay is warranted in the interests of justice: Longley, at para. 15.

[10] In my view, in the interests of justice, a stay is warranted in the circumstances of this case.

Serious issue to be tried

[11] First, there is no question that the appellant has raised serious issues to be tried on appeal with respect to the ongoing supervisory role of the courts and the scope of review of factual errors under the IAP of the IRSSA.

[12] Specifically, the appellant submits that the administrative judge exceeded his jurisdiction and erred in law by expanding the scope of review to include the consideration of factual errors and in assuming the role of an adjudicator in fixing the level of M.F.’s compensation and setting out a judicial process to quantify that claim and legal fees. In this way, the appellant submits, the administrative judge has created a fourth level of review and failed to apply this court’s decision in Fontaine v. Duboff, Edwards Haight & Schachter, 2012 ONCA 471.

[13] In Fontaine, this court directed at para. 78 that a request for direction can only be brought in the following very limited circumstances:

In particular, a Request for Direction may only be brought where it is alleged that the Chief Adjudicator’s decision reflects a failure to enforce the provisions of the [IRSSA] and the implementation orders. This very limited availability of a right to seek review of a Chief Adjudicator’s decision reflects both the importance of the finality of decisions under the [IRSSA] and the relative expertise of the Chief Adjudicator … .

[14] As a result, whether or not the administrative judge’s decision has erroneously expanded the scope of review and the court’s supervisory role are serious issues to be tried.

Irreparable harm to the public interest

[15] Further, the appellant has satisfied the criterion of irreparable harm to the public interest in the consistent and timely adjudication of claims under the IRSSA and IAP if the stay is not granted.

[16] The public interest is a special factor that the appellant is required to protect: it includes the concerns of society generally and the particular interests of the identifiable group represented in this class action that culminated in the IRSSA and the streamlined adjudicative process of the IAP: RJR – MacDonald Inc. v. Canada, 1994 117 (SCC), [1994] 1 S.C.R. 311, at paras. 71 and 76. As noted by this court in Fontaine, at para. 58, there is the need to protect vulnerable claimants and the need for finality, efficiency and the timely adjudication of the claims under the IRSSA, especially given the age of many of the claimants.

[17] As counsel submits, the administrative judge’s decision could affect hundreds of cases under review or already settled, in which requests for direction to the administrative judge could be sought to review alleged factual errors and set compensation and legal fees. There is the risk of inconsistent results and of different treatment among class members. The decision affects the integrity of the IAP process also in that the non-adversarial and inquisitorial approach of the adjudicators with respect to fact-finding and the setting of compensation and legal fees may be subsumed into the adversarial court process, which appears contrary to the intention of the IRSSA.

Balance of convenience

[18] With respect to M.F. and the Independent Counsel Group, their lack of opposition to the appellant’s motion for a stay satisfies me that they do not contest that the balance of convenience favours a stay. As counsel submits, the requested stay will not further delay the payment of compensation to M.F. because the appeal would automatically stay any order for the payment of money, under r. 63.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[19] In considering the balance of convenience, the position of the Chief Adjudicator requires me to look at this factor not only in relation to the parties to the appeal but also with regard to the claimants whose claim re-reviews might be held in abeyance for several additional months pending the disposition of the appeal.

[20] In the October 25, 2016 letter that the Chief Adjudicator’s counsel asked be produced to this court, counsel indicated that the Chief Adjudicator will take the following approach to re-reviews until the appeal in this case is determined:

There will be no change to the processing of first reviews. The parties will continue to be expected to bring re-review requests with the 30-day time period or to seek timely extensions to the period of time within which a re-review request may be brought. The parties will continue to be expected to provide their written statement of objections and replies to statements of objections with the usual time frames.

Claimant re-reviews involving allegations of errors of fact will be put in abeyance until the Court’s decision is released, unless claimants want their re-review to proceed prior to that time. The Chief Adjudicator Claimant will inform claimants seeking a re-review that, at this time, re-review adjudicators cannot consider claims that the original adjudicator made a factual error that the reviewing adjudicator failed to correct, but that the Ontario Court of Appeal is currently considering a case that may decide that re-review adjudicators can consider these kinds of errors in some circumstances. The Chief Adjudicator will provide Claimants with an opportunity to ask that their re-reviews proceed, but will otherwise await the outcome of the Court’s decision before proceeding with re-reviews involving allegations of factual error.

[21] Counsel for the appellant submits that while the results from the re-review process may be delayed a few months, the balance of convenience nevertheless favours a stay because of the need for consistency, fairness and certainty in the process. Moreover, expediting the appeal will attenuate any prejudice to the other claimants that may be caused by the increased delay in the determination of their re-reviews on alleged factual errors. I agree with these submissions.

[22] For these reasons, the appellant’s motion for a stay is allowed. The appellant did not seek costs of the motion.

Expediting the appeal and cross-appeal

[23] The hearing of the appeal and cross-appeal is at present scheduled for March 20 and 21, 2017. On October 25, 2016, with the consent of the parties, the Chief Adjudicator was granted leave to intervene as a friend of the court. Five hours have been allocated to the hearing of the appeal and cross-appeal and twenty minutes have been allotted for the Chief Adjudicator’s submissions. Counsel for the appellant fairly acknowledges that the hearing of this matter will take more than one day.

[24] In my view, given that M.F.’s claim has been outstanding for several years and having regard to the Chief Adjudicator’s position regarding the stay of all re-reviews that involve allegations of factual errors, it is in the interests of justice that the appeal be expedited.

[25] On the hearing of the motion, counsel for the appellant advised that all counsel were available for the hearing of the appeal and cross-appeal on the following dates: December 5 to 11, 2016; January 18-19, and 25-26; and February 1 and 2, 2017. By letter yesterday, counsel for the appellant confirmed that all counsel were still available on those dates and would hold them until the court office confirms the new hearing dates.

Disposition

[26] Accordingly, the July 5, 2016 order of Perell J. is stayed until 30 days following the final disposition of the appeal and cross-appeal from this order. The hearing of the appeal and cross-appeal shall be expedited and rescheduled to two consecutive days in accordance with counsel’s following available dates that they shall leave open until the appeal and cross-appeal are rescheduled: December 5 to 11, 2016; January 18-19, and 25-26; and February 1 and 2, 2017.

“L.B. Roberts J.A."