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., Hoy A.C.J.O. and Sharpe J.A.

January 16, 2017

137 O.R. (3d) 90 | 2017 ONCA 26

Case Summary

Aboriginal peoples — Residential schools — Indian Residential School Settlement Agreement ("IRSSA") — Respondent making claim of sexual abuse by priest at Indian residential school pursuant to Independent Assessment Process ("IAP") under IRSSA — Adjudicator finding that respondent did not meet test for non-resident/non-student claimant as school had closed at time of abuse — Review adjudicator and re-review adjudicator affirming that decision — Respondent bringing request for directions before administrative judge — Administrative judge exceeding limits of his authority by undertaking full-blown appeal of IAP decision on both facts and law and by awarding compensation to respondent instead of remitting claim to chief adjudicator for reconsideration — Judicial recourse to challenge IAP decisions limited to very exceptional circumstances where decision fails to enforce IRSSA or apply IAP model.

Facts

The respondent made a claim pursuant to the Independent Assessment Process ("IAP") under the Indian Residential School Settlement Agreement ("IRSSA"), alleging that he was sexually abused by a priest at a residential school when he visited his aunt, a school employee. The adjudicator accepted that the respondent had been sexually abused, but found that he did not meet the test for a non-resident/non-student claimant as the school had closed by the time of the abuse. The review adjudicator and the re-review adjudicator affirmed that decision. The respondent brought a request for directions ("RFD") before an administrative judge, seeking a declaration of his entitlement to compensation and declarations as to the standard of review which should be applied by review and re-review adjudicators.

While preparing for the RFD, Canada found documents which could have affected the outcome of the claim. The respondent had not requested the documents and the documents had not been provided to the adjudicator. Canada took the position that the claim should be remitted to the chief adjudicator for reconsideration in light of those documents and that the RFD was moot.

The administrative judge found that the RFD should be considered on its merits despite its purported mootness, as it raised significant issues respecting the proper interpretation of the review provisions in the IAP framework, among other things. The administrative judge found that Canada had not breached its IAP disclosure obligations by failing to give the adjudicator the documents. He found that the re-review adjudicator erred in his interpretation of the review provisions of the IAP as he had restricted his review to whether the review adjudicator had properly applied the IAP model to the facts as found by the adjudicator. In his opinion, the re-review adjudicator was supposed to review the decisions of both the adjudicator and the review adjudicator for palpable and overriding errors. He ruled that the re-review adjudicator erred by concluding that the adjudicator had not used extra-curial knowledge as an independent basis for her findings of fact with respect to the timing of the abuse, and that once her speculation was excised from the case, there was no basis to conclude that the respondent had failed to prove on a balance of probabilities that he was assaulted before the school closed. He refused to remit the claim to the chief adjudicator for reconsideration and found that he was entitled to award the respondent compensation. Canada appealed. The respondent cross-appealed from the finding that Canada did not breach its disclosure obligations.

Decision

Held: The appeal should be allowed; the cross-appeal should be dismissed.

The administrative judge exceeded the limits of his authority by undertaking a full-blown appeal of the IAP decisions on both fact and law. The IAP is a complete code that limits access to the courts, preserves the finality of the IAP process and respects the expertise of IAP adjudicators. Judicial recourse to challenge IAP decisions is limited to very exceptional circumstances where the IAP decision fails to enforce the IRSSA or apply the IAP model. The administrative judge engaged in a detailed review of the factual findings made by the adjudicator, and thereby improperly assumed the role of the review adjudicator. The review adjudicator had reviewed the evidence in considerable detail and explained why she found that the adjudicator made no palpable or overriding error. While the administrative judge may have disagreed with her conclusion, disagreement with the result reached does not equate to a failure to enforce the IRSSA or apply the IAP model. Even if the administrative judge had been entitled to review the adjudicator's findings, those findings did not reveal palpable and overriding errors. Finally, the administrative judge erred by making his own determination of the respondent's claim rather than remitting it to the chief adjudicator for reconsideration.

Canada did not breach its disclosure obligations.

This was an appropriate case in which to award the unsuccessful respondent his costs of the appeal and the RFD.

Reasons for Judgment

M.F.'s Claim

[1] M.F. was born on May 12, 1950. He was not a resident or a student at an Indian residential school (an "IRS"). His aunt worked as a cook at the Spanish Boys IRS in Spanish, Ontario. M.F. stated that when he was about ten years old, in about 1960, he sometimes visited his aunt at the Spanish Boys IRS with his cousin after school to have milk and cookies before going home.

[2] In his claim, M.F. stated that he was altar boy at the church on the property of the Spanish Boys' IRS between 1960 and 1962, when he was between the ages of ten and 12. While working as an altar boy, he was sexually assaulted in the sacristy of the church by a priest named Father B. He met Father B. at the Spanish Boys IRS when he visited his aunt. Father B. recruited and trained M.F. to become an altar boy. At his initial IAP hearing, M.F. testified that he thought he may have been eight years old at the time of the abuse, placing it sometime after May 12, 1958. The Spanish Boys IRS closed on June 30, 1958. There was also some suggestion at the hearing that the abuse might have occurred in relation to the Spanish Girls IRS, which had used the church of the Boys IRS after the Boys IRS had closed.

[3] IAP documents revealed that M.F.'s aunt was employed as a cook at the Spanish Boys IRS from 1951 until 1957. Father B. appeared on staff lists for the Spanish Boys IRS for December 1957 and June 30, 1958 as living at the school, but not having any duties.

[4] M.F. brought his claim in January 2012, at the age of 61.

[5] Claimants, like M.F., who were not IRS students or residents, may claim compensation pursuant to the IAP for physical or sexual abuse in certain circumstances. To succeed as a non-resident claimant, a claimant such as M.F. has to show that:

(1) the perpetrator was an adult employee of the government or church entity that operated the IRS; (2) the perpetrator was lawfully on the premises of the IRS; (3) the claimant was under the age of 21 at the time of the assault; (4) an adult employee of the government or church entity gave the claimant permission to be on the premises of the IRS for the purpose of taking part in school activities; and (5) the assault arose from or was connected with the operation of the school.

The IAP Adjudication

[6] The IAP is a contractual component of the IRSSA that provides for the post-class litigation assessment of the individual claims of class members. The IAP consists of three levels of adjudication under the supervision of the chief adjudicator. Adjudicators use an inquisitorial model. Only parties may call witnesses or produce evidence, but adjudicators manage hearings, question all witnesses and test evidence through cross-examination. The process was described by Brown J., the Western Administrative Judge, in Fontaine v. Canada (Attorney General), [2012] B.C.J. No. 1154, 2012 BCSC 839, at paras. 29-30, as follows:

The hearings are to be inquisitorial in nature and the process is designed to minimize further harm to claimants. The adjudicator presiding over the hearing is charged with asking questions to elicit the testimony of claimants. Counsel for the parties may suggest questions or areas to explore to the adjudicator but they do not question claimants directly.

The hearings are meant to be considerate of the claimant's comfort and wellbeing but they also serve an adjudicative purpose where evidence and credibility are tested to ensure that legitimate claims are compensated and false claims are weeded out.

[7] The IAP empowers adjudicators to make binding findings on credibility, liability and compensation within defined standards. Claimants must meet the civil standard of proof on a balance of probabilities to show an entitlement to compensation. Adjudicators are required to issue decisions outlining key factual findings and their rationale for finding or not finding compensability within the IAP, and for the compensation assessed, if any.

The Adjudicator's Reasons

[8] The adjudicator found M.F.'s testimony credible and concluded that he had suffered the abuse he described. However, the adjudicator found that M.F. had not established on a balance of probabilities that he met the IAP test for non-resident/non-student claimants.

[9] She noted that M.F. testified that he was abused for a period of two years, from the ages of about ten to 12, when he had been an altar boy. That would place the abuse after the date in 1958, when the school closed and after Father B.'s employment at the IRS had terminated. Even if she accepted that the abuse occurred when M.F. was eight years old, the school closed in June 1958, one month after M.F.'s eighth birthday, making it unlikely that M.F. had been recruited, trained as an altar boy and sexually assaulted before the school closed. There was no evidence that Father B. was employed by the girls school, the alternate theory advanced by M.F. to explain how the abuse may have occurred in connection with an IRS after the closure of the boys' school. Even if Father B. had given M.F. permission to be on the premises to receive altar boy training, "given the probable time when this training likely took place, it was likely after the school closed".

[10] The adjudicator concluded that the abuse did not arise from and was not connected to the operation of the Spanish Boys IRS.

[11] M.F. takes issue with the following passage in the adjudicator's reasons, in which she relied on extra-curial knowledge regarding the age at which M.F. could have served as an altar boy:

It is my understanding that standard practice is that a boy cannot serve as an altar boy until he is confirmed in the Catholic Church. Confirmation usually takes place when a boy turns 8 years of age. If [M.F.] was confirmed at age 8 (May, 1958), then he was confirmed in the year the Spanish Boys' school closed that June. It is highly unlikely that in the time between his 8th birthday and the time the school closed, that he was able to be confirmed and trained to be an altar boy.

[12] The IAP allows adjudicators to use extra-curial knowledge to make decisions, including background or personal knowledge of the IRS system and the effects of child abuse. They may carry forward information from hearing to hearing, such as information about the modus operandi of alleged perpetrators, conditions at a particular school or past credibility findings. However, such extra-curial knowledge cannot be relied on "as an independent basis for their conclusions of fact".

Review and Re-review

[13] If a claimant is dissatisfied with the adjudicator's decision, the IAP provides that he or she may ask for a review by another adjudicator, and if dissatisfied with the review, for a further review, referred to by the parties as a "re-review".

[14] The review and re-review of adjudicators' decisions is governed by s. III(l), which provides as follows:

(i) For cases within the standard or complex track, any party may ask the Chief Adjudicator or designate to determine whether an adjudicator's, or reviewing adjudicator's, decision properly applied the IAP Model to the facts as found by the adjudicator, and if not, to correct the decision, and the Chief Adjudicator or designate may do so.

(ii) In both the standard and the complex issues tracks, Claimants may require that a second adjudicator review a decision to determine whether it contains a palpable and overriding error.

(iii) . . .

(iv) If a palpable and overriding error is found, the reviewing adjudicator may substitute their own decision or order a new hearing.

The Review Adjudicator's Reasons

[15] M.F. sought review. The review adjudicator upheld the adjudicator's decision. Although M.F. had not specifically raised palpable and overriding error as a ground of review, the review adjudicator considered it.

[16] The review adjudicator cited Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33, at para. 23, and Waxman v. Waxman, [2004] O.J. No. 1765, at paras. 296-97, for the proposition that a palpable and overriding error is "one that is plainly seen" (emphasis in original). She also cited Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, for the proposition that the adjudicator's factual findings should not be disturbed if her reasoning path was clear and her outcome fell within a range of reasonable alternatives.

[17] The review adjudicator concluded that the adjudicator did not commit a palpable and overriding error in holding that M.F. had failed to demonstrate on a balance of probabilities that the abuse he suffered occurred while the Spanish Boys IRS was in operation. The adjudicator had taken into account M.F.'s birth date (May 12, 1950), his claim that he was an altar boy in the period 1960-1962, that according to M.F.'s own testimony, it takes from a couple of weeks to a month to become an altar boy, that M.F. was abused after he became an altar boy, and that the Spanish Boys IRS closed on June 30, 1958. The review adjudicator concluded that the adjudicator's decision fell within a range of reasonable outcomes, and was supported by the facts and reasonable inferences.

Re-review Adjudicator's Reasons

[18] M.F. sought re-review and submitted that the adjudicator committed a palpable and overriding error. M.F. argued that the adjudicator should have found that as M.F. was invited onto the premises of the IRS by his aunt, and as his aunt and Father B. were not on the premises after the IRS closed, then M.F. must have been abused before the IRS closed.

[19] The re-review adjudicator ruled that he had no authority to review the adjudicator's decision for factual error, and that he was restricted to considering whether the review adjudicator and the adjudicator had correctly applied the IAP framework.

[20] M.F. once again raised the argument that the abuse could have occurred in relation to the use of the chapel at the boys' school by the residents of the girls' school after the boys' school had closed. He argued that the adjudicator had failed to take judicial notice of the fact that the residents of the girls school would be expected to attend mass performed by a priest. The re-review adjudicator dismissed this argument, pointing out that M.F. had testified that he was not sure whether he had seen any residential school students at the masses when he served as altar boy.

[21] M.F. submitted for the first time on re-review that the adjudicator had erroneously relied on extra-curial knowledge of the age at which a Catholic boy may become an altar boy.

[22] The re-review adjudicator agreed with M.F. that the age at which a boy may serve as an altar boy in the Catholic Church is not obvious, that it was "ill-advised" for the adjudicator to rely on her personal knowledge, and that the adjudicator may have been wrong as to the age. However, the IAP only prevents adjudicators from relying on extra-curial knowledge "as an independent basis for their conclusions of fact". The re-review adjudicator concluded that the adjudicator's finding that M.F. had not established on a balance of probabilities that the abuse occurred prior to the closure of the IRS was well supported by other facts and evidence, and that it was not independently based on her use of extra-curial knowledge. The re-review adjudicator concluded, accordingly, that the adjudicator had not failed to apply or misapplied the IAP model.

M.F.'s Request for Directions

[23] M.F. brought a RFD asking for a declaration of his entitlement to compensation at a specified level, and for declarations as to the standard of review which should be applied by review and re-review adjudicators. Independent counsel, an IRSSA entity, supported M.F.'s position.

Newly Discovered Evidence

[24] The IAP imposes an obligation on the Government of Canada to search for and collect relevant documents and provide a report setting out the dates a claimant attended an IRS. Canada must provide a "person of interest" or "POI" report detailing information about alleged perpetrators of abuse, including their jobs at the IRS and the dates they worked or attended there. Canada must also gather documents about the IRS that the claimant attended and provide the claimant with an "IRS school narrative" summarizing those documents. The claimant is entitled to request copies of documents located by Canada.

[25] When preparing for the RFD, Canada found documents that had been listed as source documents in the POI report and the IRS school narrative created pursuant to M.F.'s claim, but ignored at the IAP hearing. The first new document was a copy of a diary referenced in the POI report. The second was an excerpt from the Dictionary of Jesuit Biography referenced in the IRS school narrative. M.F. had not requested copies of either document, nor was either document requested by or provided to the adjudicator.

[26] Canada provided copies of these documents to M.F. Initially, Father B.'s name was improperly redacted in the relevant portion of the diary. Canada agreed to provide an unredacted copy. These documents showed that Father B. had left Spanish, Ontario for Winnipeg the day after the IRS closed, never to return. It is common ground that these documents could have affected the outcome of M.F.'s claim, as they undermined the adjudicator's finding that the abuse of M.F. by Father B. probably occurred after the IRS closed.

[27] Canada took the position that M.F.'s claim should be remitted to the chief adjudicator for reconsideration in the light of the documents that had been revealed and that given that concession, the RFD was moot. M.F. resisted having the matter remitted for reconsideration, and insisted that the RFD should proceed.

The Administrative Judge's Reasons

Jurisdiction

[28] The administrative judge held that he had four sources of jurisdiction: (1) the court's jurisdiction over the administration of a class action settlement; (2) the court's plenary jurisdiction from s. 12 of the Class Proceedings Act, 1992, S.O. 1992, c. 6; (3) the court's jurisdiction derived from the IRSSA, which includes its jurisdiction to interpret and enforce contracts and its own orders, including its approval and implementation orders of the IRSSA; and (4) the court's "general curial jurisdiction" with respect to matters arising from the IAP. As authority for the court's "general curial jurisdiction", the administrative judge cited this court's decision in Fontaine v. Duboff Edwards Haight & Schachter, (2012), 111 O.R. (3d) 461, 2012 ONCA 471. As I will explain below, Canada takes serious issue with the administrative judge's reading of Schachter v. Canada, [1992] 2 S.C.R. 679.

Mootness

[29] The administrative judge held that M.F.'s RFD should be considered on its merits despite its purported mootness, as it raised significant issues respecting the proper interpretation of the review provisions in the IAP framework, as well as respecting the court's jurisdiction to fashion remedies when the IAP adjudication produces "a patent miscarriage of justice".

Canada's Disclosure Obligations

[30] The administrative judge rejected M.F.'s contention that Canada had breached its IAP disclosure obligations by failing to give the adjudicator the documents disclosing Father B.'s departure from Spanish after the Spanish Boys IRS closed.

[31] Canada had referred to the documents in the IRS school narrative and POI report. Those reports had accurately reported what the documents said about when Spanish Boys IRS had closed, and about the dates when Father B. was at the school, although they had not reported that Father B. had left Spanish the day after the IRS closed. The documents were identified and available. M.F. could have obtained copies and ensured that the adjudicator had them, but he did not do so. The adjudicator could have examined the documents herself. The erroneous redaction of Father B.'s name in the diary did not breach Canada's IAP disclosure obligation because the adjudicator had not read the diary and M.F. had not requested it.

Review and Re-review

[32] The administrative judge found that the re-review adjudicator erred in his interpretation of the review provisions of the IAP. The re-review adjudicator had restricted his review to whether the review adjudicator had properly applied the IAP model to the facts as found by the adjudicator. In the administrative judge's opinion, the re-review adjudicator was supposed to review the decisions of both the adjudicator and the re-review adjudicator.

[33] The administrative judge rejected the re-review adjudicator's view that the IAP did not permit him to review the decisions of the adjudicator or the review adjudicator for palpable and overriding errors as "a dangerous over-simplification". The administrative judge found that with respect to the present claim, review of the first two adjudicators' decisions for a correct application of the IAP framework was inseparable from review of the facts found by the adjudicator.

[34] The administrative judge ruled that the re-review adjudicator erred by concluding that the adjudicator had not used extra-curricular knowledge as an independent basis for her findings of facts. The administration judge stated, "[o]nce the adjudicator's speculation is excised from the case, there is no basis to conclude that M.F. had failed to prove on a balance of probabilities that he was assaulted before the school closed".

[35] The administrative judge implicitly exercised the error-correcting jurisdiction of an appellate court by identifying what he described as "an inconsistent, discordant, and with respect, perverse finding of fact" regarding the timing of the abuse alleged in M.F.'s claim. The adjudicator had found that M.F. had been sexually assaulted and, in the administrative judge's view, there was no evidence indicating that the assault occurred after the IRS closed. It was, therefore, a palpable and overriding error for the adjudicator to conclude that M.F. had not met the standard of proof for entitlement to IAP compensation, quite apart from the impact of the newly discovered evidence. Once he had identified that purported error, the administrative judge assumed the role of a trier of fact, re-weighed the evidence and concluded that M.F. was entitled to compensation.

[36] The administrative judge went on to hold that even if the re-review adjudicator was only required to review the review adjudicator's decision, he erred in affirming that decision because the review adjudicator failed to apply the IAP framework and correct the palpable and overriding error made by the adjudicator. Moreover, the review adjudicator did not articulate the correct test for what constitutes a palpable and overriding error. She relied on Dunsmuir to hold that she had to defer to the adjudicator if the adjudicator's decision was reasonable, but Dunsmuir "[is not] relevant to the exercise of a Review Adjudicator's jurisdiction to review decisions of Adjudicators".

Remedy

[37] The administrative judge rejected Canada's position that a rehearing of M.F.'s claim should be ordered. He agreed that such a remedy was available but stated that the alternatives would be to decide the IAP claim himself, or to appoint a referee to decide the claim.

[38] The administrative judge held that, even without the fresh evidence disclosed by Canada, "the decision as I have corrected it can only lead to one result", that is, that M.F. was entitled to compensation. Therefore, he did not send the matter back to adjudication. Although the administrative judge did not deal with the point in his reasons, his order made an award to M.F. at a specified level of harm under the IAP grid, despite the fact the IAP requires medical evidence to support that level of compensation and no such evidence had been led. The administrative judge also decided that he would quantify M.F.'s compensation and costs, subject to providing the parties with a 30-day opportunity to settle the award and costs claim.

Issues

[39] The central issue on this appeal is whether the administrative judge exceeded the limits of his authority by failing to apply Schachter, which expressly limited judicial recourse to challenge IAP decisions to "very exceptional circumstances", by overturning and making findings of fact, and by awarding compensation and costs to M.F. rather than remitting the claim for reconsideration to the chief adjudicator. The appeal also raises the issue of the proper roles of the review and re-review adjudicators. The issue raised by the cross-appeal is whether Canada breached its IAP disclosure obligations.

[40] Independent counsel supports the position of M.F. The chief adjudicator, intervener, supports Canada's position with respect to the jurisdictional issue and the roles of the review and re-review adjudicators.

Analysis

Schachter and the Jurisdiction of the Administrative Judge

[41] The starting point for determining the availability of recourse to the courts to challenge IAP decisions is the decision of this court in Schachter. That case involved an attempt to appeal a determination made by the chief adjudicator in relation to legal fees. Winkler C.J.O., the administrative judge who had been instrumental in the approval of the IRSSA and who was entirely familiar with the IAP process it established, ruled that the IAP only allowed for appeals to the court in certain defined circumstances, and that all other appeals were excluded. He also ruled that as the chief adjudicator was not exercising a statutory power of decision, judicial review of IAP orders was also excluded.

[42] This court dismissed an appeal from that decision. Writing for a unanimous court, Rouleau J.A. emphasized the importance of respecting the expertise of the chief adjudicator, and of protecting the IAP from curial review that would undermine the finality of IAP decisions. He agreed with Winkler C.J.O. that there was no appeal from an IAP decision, and no right to judicial review. However, this court left open the possibility of judicial recourse in "very exceptional circumstances" or "very limited circumstances". Rouleau J.A. described those exceptional or limited circumstances in the following words:

[I]n the very limited circumstances where the final decision of the Chief Adjudicator reflects a failure to comply with the terms of the [IRSSA] or the implementation orders, the aggrieved party may apply to the Administrative Judges for directions. These limited circumstances would include where the Chief Adjudicator upholds a decision of the Adjudicator as fair and reasonable even though the Adjudicator failed to consider the factors set out in para. 18 of the implementation orders in arriving at his/her fee review decision in a specific case. By providing for recourse to an Administrative Judge in these limited circumstances, the parties will be able to ensure that the bargain to which they consented is respected.

[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 in the legal fee review process.

[43] I see no merit in M.F.'s argument that Schachter should be read narrowly as applying only to legal fee determinations. That argument was properly rejected in Fontaine v. Canada (Attorney General), [2016] B.C.J. No. 2603, 2016 BCSC 2218. While Schachter involved a dispute concerning IAP legal fees, the principles upon which the decision rests apply with equal force to IAP compensation decisions. The IAP represents a comprehensive, tailor-made scheme for the resolution of claims by trained and experienced adjudicators, selected according to specified criteria and working under the direction of the chief adjudicator. Allowing appeals or judicial review to the courts from IAP decisions is not contemplated by the IAP, the IRSSA or the implementation orders. Allowing appeals or judicial review would seriously compromise the finality of the IAP and fail to pay appropriate heed to the distinctive nature of the IAP and the expertise of IAP adjudicators.

[44] I disagree with the administrative judge's conclusion that Schachter created a "general curial jurisdiction" in relation to the IAP. This court did not use that phrase and the entire thrust of the judgment is to the contrary. As Brown J. explained in Fontaine v. Canada (Attorney General), 2016 BCSC 2218, "the phrase 'curial review' suggests a right to seek review before the Courts and a standard of review, both of which are untenable" in the light of Schachter.

[45] Schachter imposed strict limits on the scope for judicial intervention. It did so to respect the IRSSA, the contract the parties negotiated, of which the IAP is a fundamental part. As this court recognized in Fontaine v. Canada (Attorney General), (2016), 130 O.R. (3d) 1, 2016 ONCA 241, "[a]djudicators 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". The IAP has been aptly described as "a complete code" that limits access to the courts, preserves the finality of the IAP process and respects the expertise of IAP adjudicators.

[46] Subsequent decisions confirm the limits imposed by Schachter. In Fontaine Estate v. Canada (Attorney General), [2016] M.J. No. 232, 2016 MBQB 159, Edmond J. held that judicial recourse was limited to ensuring that the review adjudicator did not endorse a legal interpretation that was so unreasonable that it amounted to a failure to apply the IAP. In Fontaine v. Canada (Attorney General), 2016 BCSC 2218, Brown J. held that judicial recourse was limited to situations where an IAP decision "reflects a patent disregard for the IAP Model's compensation rules, such as a failure to award compensation on the basis of the rubric it provides" or was "so exceptionally wrong in law as to amount to a failure to apply the IAP Model".

Did the Administrative Judge Exceed the Limits Imposed by Schachter?

[47] In my respectful view, the administrative judge failed to respect the limits imposed by Schachter. His reasons reveal that he undertook a full-blown appeal of the IAP decisions on both law and fact. He engaged in a detailed review of the factual findings made by the adjudicator, and thereby assumed the role of the review adjudicator. He was not entitled to assume a role the IAP specifically assigns to the review adjudicator. The review adjudicator had reviewed the evidence in some considerable detail and explained why she found that the adjudicator made no palpable or overriding error. While the administrative judge may have disagreed with her conclusion, disagreement with the result reached does not equate to a failure to enforce the IRSSA agreement or apply the IAP model, thereby justifying judicial intervention. If it did, all IAP decisions would be appealable to the courts, the very thing Schachter forbids. The review adjudicator conducted the very review of the adjudicator's factual findings that is mandated by the IAP by considering whether the adjudicator had made a palpable and overriding error. Both the adjudicator's factual findings and the review adjudicator's review of them on the palpable and overriding error standard were entitled to the high level of deference imposed by Schachter.

[48] In Fontaine v. Canada (Attorney General), 2016 BCSC 2218, Brown J., who has many years of experience administering the IRSSA, explained the rationale for a judicial "hands-off" approach to IAP fact finding: "Despite my years of administering the IRSSA, it would be impossible for me to know better than those who have been immersed in the IAP . . . The Courts are simply not well-placed to make findings of fact." See, also, Fontaine Estate v. Canada (Attorney General), confirming the exclusive jurisdiction of independent adjudicators to make findings of fact, upholding "the parties' clear intention as reflected in the IRSSA that IAP adjudicators, and not judges, should find facts and determine amounts of compensation in accordance with the IAP".

[49] I do not agree with M.F.'s suggestion that the passing reference to the Dunsmuir standard indicates that the review adjudicator failed properly to apply the Housen test for palpable and overriding error to the facts found by the adjudicator. The issue was one of fact: when did the abuse occur? There was no danger here that reference to the Dunsmuir "reasonableness" standard skewed the review adjudicator's consideration of the palpable and overriding error standard. When considered in that context, the review adjudicator's finding that the adjudicator's findings fell within a reasonable range of outcomes was consistent with L. (H.) v. Canada (Attorney General), [2005] 1 S.C.R. 401, 2005 SCC 25. At para. 57, the Supreme Court, citing the writings of Professor Adrian Zuckerman, stated that an appellate court must not intervene in factual findings under a palpable and overriding error standard "if the appeal court cannot conclude that the lower court's inference from the primary facts was wrong, in the sense that it fell outside the range of inferences that a reasonable court could make" (emphasis added).

[50] I would add that even if the administrative judge had been entitled to review the adjudicator's findings, I disagree with his conclusion that they reveal palpable and overriding errors. There was, in my view, some evidence to support her findings. M.F.'s claim stated that the abuse took place over a two-year period in 1960-62. M.F. testified that the abuse could have commenced earlier when he was eight years old, after he had been recruited and trained by Father B. as an altar boy, but as M.F.'s eighth birthday fell within a month of the school's closure, the timing was problematic. M.F.'s counsel suggested that the abuse may have occurred at the church but in relation to the girl's school after the boy's school had closed. However, M.F. testified that he did not recall any IRS students attending the masses at which he served as altar boy. On that record, the adjudicator was entitled to conclude that M.F. had not met the burden of proving certain necessary elements of his claim, namely, that the abuse had occurred at the Spanish Boys IRS before it closed, or that it arose from or was connected with the operation of the school.

[51] The re-review adjudicator fully considered M.F.'s argument that the adjudicator had made improper use of her extra-curial knowledge in relation to the age at which boys are confirmed in the Catholic Church. After a thorough review of the record, the re-review adjudicator concluded that the adjudicator's decision could be supported without reference to her extra-curial knowledge. That conclusion was, in my view, supportable. As I have already explained, there was considerable evidence beyond this extra-curial knowledge from which a fact-finder could reasonably conclude that M.F. had failed to establish the necessary elements of his claim as an IRS non-resident. While I understand that the administrative judge did not agree with that conclusion, the re-review adjudicator's decision was not so unreasonable or exceptionally wrong that it amounted to a failure to enforce the IRSSA or apply the IAP model.

[52] The administrative judge appears to have taken the view that if, in his judgment, M.F. was entitled to compensation, any other conclusion necessarily reflected a failure to apply the IAP model. In my respectful opinion, that approach reflects a failure to follow the strictures imposed in Schachter on recourse to the courts from IAP decisions, and one that, if accepted, could significantly undermine the finality and integrity of the IAP.

Newly Discovered Evidence

[53] As Canada is prepared to consent to an order remitting M.F.'s claim to the chief adjudicator for reconsideration in the light of the newly discovered documents, it is not necessary for me to consider whether, in the circumstances of this case, the newly discovered evidence would amount to an exceptional circumstance that would allow for judicial recourse.

Remedy

[54] It follows from what I have said about the limited jurisdiction of the administrative judge that he erred by making his own determination of M.F.'s claim rather than remitting it to the chief adjudicator for re-consideration. Nor can his decision to depart from the IAP model for determining the appropriate level of compensation and costs be supported. The determination of harm and level of compensation requires the specialized knowledge and experience of an IAP adjudicator. The compensation rules include an intricate points system. The category of harm the administrative judge selected requires a medical assessment, and none had been provided. The IAP also requires reasons for the assessment of harm and, as noted, the administrative judge gave none, as the specified level of harm first appeared in the order he signed. He was, in my view, not entitled to depart from the IAP to establish an alternate framework whereby he could delegate responsibility to determine compensation or fees to other judicial officers.

[55] I have no doubt that the administrative judge was motivated by a genuine and sincere desire to see that justice was done in this particular case, and to ensure that M.F. received compensation without further delay. Doing justice, however, involves more than going straight to what the judge thinks is the right result. Justice requires that procedural rules and jurisdictional boundaries designed to protect the rights of all parties be respected. The IRSSA provides that claims for compensation are to be resolved not by courts, but by trained and specialized adjudicators operating under the carefully designed IAP model. In my view, justice in this case can more fully and completely be achieved for all parties by respecting the IAP, following the law as laid down in Schachter, and remitting M.F.'s claim for proper reconsideration by the chief adjudicator under the terms of the IAP, in accordance with the agreement of all parties to the IRSSA.

Roles of the Review and Re-review Adjudicators

[56] For the sake of completeness and to clarify matters for future cases, I add that, in my view, the administrative judge erred in his interpretation of the IAP review and re-review model. For convenience, I repeat here the relevant provisions:

(i) For cases within the standard or complex track, any party may ask the Chief Adjudicator or designate to determine whether an adjudicator's, or reviewing adjudicator's, decision properly applied the IAP Model to the facts as found by the adjudicator, and if not, to correct the decision, and the Chief Adjudicator or designate may do so.

(ii) In both the standard and the complex issues tracks, Claimants may require that a second adjudicator review a decision to determine whether it contains a palpable and overriding error.

(iii) . . .

(iv) If a palpable and overriding error is found, the reviewing adjudicator may substitute their own decision or order a new hearing.

[57] I disagree with the administrative judge that these provisions contemplate two levels of review of factual findings on the palpable and overriding error standard. The provisions make a distinction between review on the ground that the adjudicator failed to properly apply the IAP model, on the one hand, and review of factual findings for palpable and overriding error, on the other. The power to review on grounds of compliance with the IAP model is given to "a reviewing Adjudicator", a term that embraces both the first and second level of review. However, only "a second Adjudicator" is specifically assigned the responsibility to review an adjudicator decision for factual errors on the palpable and overriding standard. In my view, the term "second adjudicator" can only embrace the first level of review. I add that it would constitute a breach of the IAP model should the "second adjudicator" inappropriately fail or refuse to conduct a review for palpable and overriding error, and it would be open to a re-review adjudicator to so find. However, it would be wrong for a re-review adjudicator to second-guess a review adjudicator's call on factual errors under the guise of upholding the IAP model. There may also be cases where misapplication of the IAP framework by the review or re-review adjudicator could involve disturbing factual findings made by an adjudicator. For example, if the adjudicator used extra-curial knowledge as an independent basis for a decision contrary to the framework, correcting such a misapplication of the framework will necessarily involve interference with the factual findings of the adjudicator.

[58] Finally, both the review adjudicator and the re-review adjudicator have the authority to review prior decisions to ensure that the IAP model has been followed. I agree with the re-review adjudicator in the present case that the standard of review for that must be correctness. I also agree that the task of the re-review adjudicator is to review the decision of the review adjudicator. However, as the standard of review on the only available ground is correctness, the review adjudicator's decision on that issue does not attract deference at the re-review stage.

Cross-Appeal

[59] Shortly before the oral argument of this appeal, M.F. moved to amend his notice of cross-appeal. Canada did not consent to the amendment but did not strenuously resist. In my view, the amendments sought were inconsequential and I would accordingly dismiss the motion to amend.

[60] I agree with the administrative judge that Canada did not breach its disclosure obligations. In any event, I fail to see what purpose a declaration to that effect would serve at this point.

[61] The documents at issue were listed as supporting documents in the IRS school narrative and POI report and copies were available upon request. There is no suggestion that Canada acted improperly or was concealing the documents. There is no dispute that Father B.'s name should not have been redacted in the diary, but as no one asked for the document, the improper redaction caused no harm.

Disposition

[62] I would allow the appeal, dismiss the cross-appeal and remit M.F.'s claim to the chief adjudicator for reconsideration. As the administrative judge noted, M.F. has waited a long time and gone through many proceedings and his claim has not yet been resolved. It is plainly in the interest of justice that the reconsideration be completed as soon as possible.

[63] Canada does not seek costs of the appeal. The more difficult issue is whether we should accede to the claims advanced by M.F. and independent counsel that Canada pay their costs despite the outcome of the appeal. Awarding costs to an unsuccessful litigant is permitted by rule 57.01(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, but doing so is rare. Canada has benefitted from having the law clarified on important aspects of the IAP process, a factor that may justify an award of costs to an unsuccessful party. The fees of lawyers representing IAP claimants are limited and relatively modest. This appeal raised and clarified important legal issues that transcended the interests of M.F. This court benefited from having the submissions of M.F. and independent counsel in resolving those issues. It seems to me that in these circumstances, it would be in keeping with the spirit of the IRSSA and the interests of justice to require Canada to pay $50,000 inclusive of disbursements and taxes towards M.F.'s costs here and below. I would also award costs to independent counsel, fixed at $10,000, inclusive of disbursements and taxes.

Appeal allowed; cross-appeal dismissed.