Court of Appeal for Ontario

Date: 2018-12-10

Docket: M49477 (C64991)

Panel: Doherty, Miller and Fairburn JJ.A.

Between

Fay Brunning Requestor/Responding Party (Appellant)

and

Larry Philip Fontaine, et al. Plaintiffs

and

The Attorney General of Canada, et al. Defendants/Moving Party (Respondent)

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

Counsel:

• Catherine A. Coughlan and Brent Thompson, for the moving party, The Attorney General of Canada
• Lawrence Greenspon, for the responding party, Fay Brunning

Heard: November 30, 2018

On appeal from: The order of Justice Paul M. Perell of Superior Court of Justice, dated January 15, 2018, with reasons reported at 2018 ONSC 357.

Reasons for Decision

Doherty J.A.:

Introduction

[1] The respondent, the Attorney General of Canada, brought a motion to quash an appeal brought by Ms. Fay Brunning. At the end of oral argument, the court allowed the motion and quashed the appeal with reasons to follow. These are those reasons.

Background

[2] Ms. Brunning, a lawyer, represents persons involved in proceedings conducted under the auspices of the Indian Residential Schools Settlement Agreement, (the "IRSSA").

[3] On January 4, 2018, the Eastern Administrative Judge for the IRSSA released reasons addressing various issues raised in a Request for Directions brought by Ms. Brunning on behalf of her clients. The decision went largely, but not entirely, against Ms. Brunning's clients: Fontaine v. Canada (Attorney General), 2018 ONSC 103.

[4] Ms. Brunning sent several emails to court counsel on Thursday, January 11 and Friday, January 12, 2018. In one of those emails she indicated that her client would not participate in the further scheduled proceedings before the Independent Assessment Process Adjudicator (the "IAP Adjudicator") unless appropriate disclosure was made before the scheduled hearing date. Ms. Brunning was scheduled to make closing submissions on behalf of her client before the IAP Adjudicator a week later on January 19.

[5] In her emails, Ms. Brunning also complained about the conduct of the Attorney General and failures in the adjudicative process, and she challenged the correctness of the Eastern Administrative Judge's reasons that had been released on January 4. The emails revealed Ms. Brunning's frustration with the process and her disagreement with the January 4 decision.

[6] On January 15, 2018, the Eastern Administrative Judge released a Direction (the "January 15 Direction") in which he addressed the contents of the various emails sent by Ms. Brunning: Fontaine v. Canada (Attorney General), 2018 ONSC 357. The Eastern Administrative Judge issued the January 15 Direction on his own initiative and without requesting or receiving any input from counsel for any of the affected parties.

[7] In the January 15 Direction, the Eastern Administrative Judge made it clear that Ms. Brunning and her client could not unilaterally decide that they would not appear as scheduled before the IAP Adjudicator. He said at paras. 3-5:

In her correspondence, Ms. Brunning also threatened to not attend at the resumption of [her client's] Independent Assessment Process ("IAP") claim under the IRSSA. I regard that threat as disrespectful to IAP Adjudicators and to be a derogation of Ms. Brunning's duties to her client and as an officer of the court.

I direct Ms. Brunning to participate in the closing submissions of [her client's] hearing as directed by the IAP Adjudicator on Friday, January 19, 2018.

[8] Ms. Brunning and her client appeared before the IAP Adjudicator as scheduled and the matter proceeded to completion.

[9] In the January 15 Direction, the Eastern Administrative Judge went beyond ordering Ms. Brunning to appear as required before the IAP Adjudicator. He commented at some length, and in a negative manner, about Ms. Brunning's conduct and statements she had made, both in her submissions in the proceeding that led to the January 4 decision and more particularly in her correspondence with court counsel on January 11 and 12.

[10] Ms. Brunning, not her client, launched an appeal from the January 15 Direction. It is that appeal which the respondent Attorney General of Canada moved to quash.

[11] In the Notice of Appeal, Ms. Brunning alleged that the Eastern Administrative Judge had exceeded his jurisdiction by failing to refer any complaint regarding the appellant's conduct to the Independent Special Advisor. Ms. Brunning also alleged that the Eastern Administrative Judge had lost jurisdiction by "failing to provide any procedural fairness and/or failing to apply or follow the rules of natural justice at any time prior to condemning the appellant in [the January 15 Direction]".

Analysis

Whether There is an Order to Appeal From

[12] On the motion to quash the appeal, the Attorney General of Canada does not challenge Ms. Brunning's standing to bring the appeal. Counsel does, however, argue that there is no order to appeal from, and that, if there is an order, it is interlocutory in nature and moot. Appeals from interlocutory orders made by Superior Court judges go to the Divisional Court. Leave to appeal is required: Courts of Justice Act, R.S.O. 1990 c. C.43, s. 19(1)(b).

[13] The Attorney General of Canada submits that the Eastern Administrative Judge's direction is an exercise of his case management powers and does not constitute an order as contemplated by s. 6(1)(b) of the Courts of Justice Act.

[14] There is no formal order. However, the January 15 Direction contains an order requiring Ms. Brunning and her client to appear before the IAP Adjudicator.

[15] I agree with counsel for Ms. Brunning that the January 15 Direction is an order. As counsel pointed out, the Eastern Administrative Judge identified his authority for issuing the January 15 Direction as coming in part from the order of Winkler R.S.J. dated December 15, 2006 to "make such orders as are necessary to implement and enforce the provisions of the Agreement and this judgment": see Fontaine, 2018 ONSC 357, at paras. 6-8.

[16] I accept that the January 15 Direction reflects an exercise of the Eastern Administrative Judge's case management powers. However, that characterization does not make the January 15 Direction any less an order of the court. The terms of the January 15 Direction compelled Ms. Brunning and her client to attend before the IAP Adjudicator to complete the process. Ms. Brunning and her client were bound to comply with that order, subject, of course, to any superseding order of another court. The court could also enforce the command that Ms. Brunning and her client appear before the IAP Adjudicator using the means available for the enforcement of court orders. In my view, the January 15 Direction clearly contained an order of the court directing Ms. Brunning and her client to appear as required before the IAP Adjudicator. That order is subject to appeal.

Whether the Order is Interlocutory or Final

[17] I do, however, accept the second argument advanced by the Attorney General of Canada. The January 15 Direction contained a single order. That order obliged Ms. Brunning and her client to appear before the IAP Adjudicator as scheduled on the following Friday.

[18] The order was procedural and interlocutory. It did not determine any legal right in any proceeding involving Ms. Brunning or her client. Nor did it determine any substantive issue in any ongoing proceeding. I would note that, in any event, the client's legal rights are irrelevant. The client has not appealed.

[19] The order made in the January 15 Direction is analogous to an order refusing an adjournment. When a court refuses an adjournment, it effectively orders the parties to appear as scheduled. I am not aware of any case that holds that the refusal of an adjournment, standing on its own, constitutes a final order for the purposes of the appeal. The order contained in the January 15 Direction, requiring the appellant and her client to attend before the IAP Adjudicator, is an interlocutory order.

Mootness

[20] It is clear from a review of the material filed on the appeal, that it is not the order made by the Eastern Administrative Judge that is the true target of this appeal. As pointed out above, the appellant and her client attended before the IAP Adjudicator and the matter has been decided. Any appeal from the January 15 order is moot.

The Real Issue: Judicial Comments

[21] The appellant's real concern arises out of the Eastern Administrative Judge's comments about her conduct. She is understandably concerned that those comments, which are now part of the public record, could have a very negative impact on her professional reputation. The appellant takes the position that the comments are unwarranted, and that the Eastern Administrative Judge failed to comply with virtually every component of due process when he issued the January 15 Direction. She seeks a forum in which to challenge the process and the Eastern Administrative Judge's comments.

[22] As understandable as the appellant's concerns may be, those concerns do not give rise to a right of appeal in this court. The Eastern Administrative Judge's comments about counsel are not part of the order he made. The order consists of the direction that the appellant and her client appear as required before the IAP Adjudicator on January 19. The essence of the order is found at para. 35 of the January 15 Direction:

I, therefore, direct Ms. Brunning to appear and participate in the closing submissions as directed by the IAP Adjudicator on Friday, January 19, 2018. I direct her to advise Court Counsel whether she will comply or will refuse to comply with this direction by no later than Wednesday, January 17, 2018, 4:00 p.m.

[23] An appeal lies only from the terms of an order and not from the reasons for judgment giving rise to the order: Grand River Enterprises v. Burnham (2005), 10 C.P.C. (6th) 136, at paras. 9-10 (Ont. C.A.).

[24] The Eastern Administrative Judge's comments about counsel are certainly part of the reasons. They are not, however, part of the order.

Alternative Remedies Available

[25] Fortunately from the appellant's perspective, she will have an opportunity to challenge in this court the merits of the comments made by the Eastern Administrative Judge in his January 15 Direction. When the Eastern Administrative Judge released that direction, he had pending before him a motion for costs against the appellant personally in the proceedings that had led to the January 4 decision. The appellant brought a motion claiming that the Eastern Administrative Judge should recuse himself from the costs motion on the ground that his comments in the January 15 Direction gave rise to a reasonable apprehension of bias against the appellant. The Eastern Administrative Judge dismissed that motion: Fontaine v. Canada (Attorney General), 2018 ONSC 4182. The appellant has appealed to this court from that dismissal.

[26] The Eastern Administrative Judge subsequently ordered costs payable by the appellant, personally, to the Attorney General of Canada in the amount of $25,000: see Fontaine v. Canada (Attorney General), 2018 ONSC 4195. The appellant has filed an application for leave to appeal to this court from the costs order.

[27] As counsel for the appellant acknowledged in oral argument, the comments made by the Eastern Administrative Judge about the appellant's conduct in his January 15 Direction will be front and centre on the appeal from the recusal motion. They will also figure in the costs appeal, if leave is granted. The appellant will have her opportunity to challenge in this court the fairness of the process leading to the January 15 Direction and the merits of the comments made by the Eastern Administrative Judge about the appellant's conduct.

Conclusion

[28] For the reasons set above, the order made in the January 15 Direction is interlocutory and not final. Assuming the appellant has standing to appeal that order, her appeal lies, with leave, to the Divisional Court and not to this court. The appeal is quashed: Courts of Justice Act, R.S.O.1990 c. C.43, s. 6(1)(b), s. 19(1)(b).

[29] Counsel for the Attorney General of Canada did not seek costs, and the court made no order as to costs.

Released: December 10, 2018

"Doherty J.A."

"I agree. B.W. Miller J.A."

"I agree. Fairburn J.A."