Court of Appeal for Ontario

Date: May 7, 2018

Docket: C63804

Judges: Hoy A.C.J.O., Juriansz and Miller JJ.A.

Between

Larry Philip Fontaine, et al. Plaintiffs

and

The Attorney General of Canada, et al. Defendants/Respondents

In the Matter of the Request for Directions by IAP Claimant H-15019 Pertaining to St. Anne's Indian Residential School

Requestor/Appellant

In the Matter of the Request for Directions by Edmund Metatawabin and by IAP Claimant K-10106 Pertaining to St. Anne's Indian Residential School

Requestors/Appellants

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

Counsel:

Margaret L. Waddell and Fay K. Brunning, for the appellants Claimant H15019, Claimant K-10106 and Edmund Metatawabin

Catherine A. Coughlan and Brent Thompson, for the respondent Attorney General of Canada

Peter C. Wardle, for the intervenor

Diane Soroka, David Schulze and Maryse Décarie-Daigneault, for the Independent Counsel

Heard: March 13, 2018

On appeal from the judgment of Justice Paul M. Perell of the Superior Court of Justice, dated April 24, 2017.

Hoy A.C.J.O.:

A. OVERVIEW

[1] These appeals arise out of the implementation of the Indian Residential Schools Settlement Agreement (2006) (the "IRSSA").

[2] The IRSSA is a settlement agreement that resolved class actions and pending individual actions across Canada against the Attorney General of Canada and other parties implicated in the tragic history of physical, sexual and psychological abuse perpetrated on indigenous children at residential schools.

[3] Among other things, the IRSSA provides for financial compensation to these victims. All eligible class members who had resided in a residential school are entitled to payment of a minimum amount, called a "Common Experience Payment". The IRSSA also provides that class members who allege they suffered serious physical, sexual or psychological harm at a residential school may apply for additional compensation through the Independent Assessment Process ("IAP") – a comprehensive, tailor-made, private and confidential inquisitorial process established by the IRSSA for the resolution of such claims by specially trained adjudicators.

[4] To facilitate the adjudicative function, the IAP requires the Government of Canada to search for and collect relevant documents and provide a report setting out the dates a claimant attended a residential school. Canada must provide a "person of interest" or "POI" report detailing information about alleged perpetrators of abuse, including their jobs at the residential school and the date they worked or attended there. Canada is also required to gather documents about the residential school that the claimant attended and provide the claimant with a report – a "School Narrative" or "School Report" – summarizing those documents. The IAP also contains provisions entitling the claimant to request copies of documents.

[5] This appeal involves St. Anne's Indian Residential School in Fort Albany, Ontario. St. Anne's was the site of terrible abuse. Between 2000 and 2003, 154 former students at St. Anne's instituted 62 civil actions in Cochrane, Ontario against the Attorney General of Canada and other parties implicated in the abuse at St. Anne's (the "Cochrane Actions").

[6] The appellants, Claimant H-15019, Claimant K-10106 and Edmund Metatawabin, former chief of the Fort Albany First Nation, were students at St. Anne's. By the time of this appeal, H-15019 and K-10106 had received substantial awards under the IAP. Mr. Metatawabin did not make a claim under the IAP.

[7] The appellants brought broad-ranging Requests for Directions before the judge designated under the IRSSA's Court Administration Protocol as the Eastern Administrative Judge. Among other things, they sought a declaration that Canada had breached its disclosure obligations under the IRSSA by refusing to produce transcripts of examinations for discovery from the Cochrane Actions (the "Cochrane Transcripts"), and relief for all former students affected by this alleged breach and other breaches by Canada of its disclosure obligations.

[8] The administrative judge dismissed H-15019's Request for Directions ("RFD"). He concluded that Canada had not breached its disclosure obligations under the IRSSA by refusing to produce the Cochrane Transcripts to H-15019, who was not a plaintiff in any of the Cochrane Actions.

[9] In the case of K-10106 and Mr. Metatawabin's RFD, the administrative judge considered two preliminary issues: did they satisfy the test to obtain legal standing to bring their RFD and, if so, did the court have jurisdiction to provide the broad relief requested? The administrative judge concluded that K-10106 and Mr. Metatawabin did not satisfy the test to obtain standing, the court did not have jurisdiction to grant most of the relief they sought, and, of the remaining items, there was no good reason for the court to exercise its jurisdiction.

[10] The appellants appeal the orders dismissing their RFDs.

[11] For the reasons that follow, I conclude that there is no basis to interfere with the administrative judge's conclusions that Canada did not breach its disclosure obligations in refusing to produce the Cochrane Transcripts. Although, in relation to K-10106 and Mr. Metatawabin's RFD, I might have taken a different view from the judge on the issue of standing, there is no basis to interfere with his determinations on the issue of jurisdiction. Accordingly, I would dismiss these appeals.

[12] Below, I provide background on the events leading to these RFDs. Then I address, in turn, H-15019's appeal and K-10106 and Mr. Metatawabin's appeal.

B. BACKGROUND

[13] The courts play a limited but important role under the IRSSA. Article 18.04 of the IRSSA provides for application to the court for directions "in respect of the implementation, administration or amendment of [the IRSSA]." The right to bring a RFD is further contemplated by para. 31 of the Courts' orders approving the IRSSA. RFDs are brought before one of the two Administrative Judges.

[14] These RFDs are not the first RFDs made to the administrative judge regarding Canada's disclosure obligations under the IAP concerning St. Anne's. As detailed in his reasons, in December of 2013, the administrative judge heard the first RFD on Canada's disclosure obligations in relation to St. Anne's: Fontaine v. Canada (Attorney General), 2014 ONSC 283, [2014] 2 C.N.L.R. 86 ("RFD-1"). In RFD-1, the applicants included 60 St. Anne's claimants under the IAP. The focus was the over 12,000 documents obtained or created by the OPP in its criminal investigation of St. Anne's between 1992 and 1996. That investigation culminated in charges against seven individuals, all but one of whom were convicted of some charge. Canada had obtained some of the documents arising from the OPP investigation on a motion brought in 2003 in connection with the Cochrane Actions. Its 2003 motion was resolved with the consent of the plaintiffs and with the church defendants not opposing.

[15] In his order dated January 14, 2014 (the "Order"), the administrative judge, among other things, ordered the OPP (which did not oppose the order sought) and Canada (which did, based on the deemed undertaking rule) to produce these OPP documents. The administrative judge concluded that the "deemed undertaking rule" did not apply to OPP documents in the possession of Canada or, if it did, the court should abrogate the undertaking to permit Canada to produce them.

[16] Paragraphs 6(b) and (c) of the Order are relevant to this appeal. They provide as follows:

6. THIS COURT ORDERS that Canada shall by June 30, 2014, produce for the IAP:

(b) the transcripts of criminal or civil proceedings in its possession about the sexual and/or physical abuse at St. Anne's IRS; and

(c) any other relevant and non-privileged documents in the possession of Canada to comply with the proper reading and interpretation of Canada's disclosure obligations under Appendix VIII [of the IAP].

[17] In addressing the relief sought for Canada's non-disclosure, the administrative judge held that the court had the jurisdiction to re-open settled claims, but that jurisdiction must be exercised on a case-by-case basis. He indicated that it would be a "rare or extraordinary" exercise of jurisdiction and there would need to be more than a "theoretical miscarriage of justice": RFD-1, at paras. 225 and 228.

[18] Although Canada had not adequately complied with the IRSSA, the administrative judge concluded that Canada had simply misconstrued its disclosure obligations. He did not find that Canada had acted in bad faith, nor did he make any finding of reprehensible, scandalous or outrageous conduct on the part of Canada: RFD-1, at para. 213; Fontaine v. Canada (Attorney General), 2014 ONSC 3059, [2014] O.J. No. 2400, at para. 26 ("RFD-1 Costs").

[19] In the second St. Anne's RFD, Fontaine v. Canada (Attorney General), 2015 ONSC 3611, [2015] 4 C.N.L.R. 51 ("RFD-2"), heard on May 20, 2015, the administrative judge agreed with the applicants that the IAP required Canada to update its POI and School Narrative reports for St. Anne's to reflect the documents he ordered disclosed in his Order and to provide un-redacted copies of any court records, including transcripts and pleadings, that relate to criminal offences that were alleged to have occurred at St. Anne's.

[20] On June 30, 2014, Canada reported to the court on its compliance with the Order. It indicated that:

• Pursuant to subparagraph 6(b), Canada would produce the transcripts of proceedings in its possession about the abuse at St. Anne's, but Canada was not in possession of any civil trial transcripts in relation to St. Anne's because no civil trials took place with respect to it.

• Pursuant to subparagraph 6(c), Canada would produce pleadings, demands for particulars, responses to those demands, notices of discontinuance, dismissal orders and other such documents from its St. Anne's files.

• If a claimant were examined for discovery in a previous residential school proceeding, Canada would produce the transcripts of the examination for the IAP hearing of the claimant, according to Appendix XI of the IAP model.

• Canada would not otherwise produce transcripts of examinations for discovery because they are subject to settlement privilege or to deemed undertakings as to confidentiality that arose in the context of pre-IRSSA litigation.

C. H-15019'S RFD

The process leading to the order under appeal

[21] On September 23, 2014, H-15019's IAP claim was dismissed. The IAP provides that if a claimant is dissatisfied with the adjudicator's decision, he or she may ask for review by another adjudicator, and if dissatisfied with the review, for a further review, referred to as a "re-review."

[22] H-15019 sought a review by another adjudicator and, on April 2, 2015, the Review Adjudicator upheld the original decision to dismiss the claim.

[23] In November 2015, H-15109 filed a RFD seeking court intervention in his IAP claim. On February 11, 2016, he amended his claim. Among other things, he sought an order that redacted Cochrane Transcripts be produced and his IAP claim be re-heard "on all the proper evidence". He also sought broad additional relief, including the payment of damages, the establishment of a process for review by counsel (whose legal fees would be paid by Canada) and the possible re-hearing of IAP claims of all former students of St. Anne's whose claims were decided prior to November 1, 2015, and the removal of the Department of Justice lawyers who represented Canada in all IAP re-hearing processes. H-15019 alleges that the Department of Justice lawyers withheld evidence, "hid" documents, and effected an abuse of process.

[24] The administrative judge adjourned H-15019's RFD to be brought on, if necessary, after his re-review hearing.

[25] The Chief Adjudicator of the IAP, in his capacity as the re-reviewing adjudicator, ordered a new hearing of H-15019's IAP claim for reasons of procedural fairness. Without prejudice to its ability to challenge the legal issues raised by the Chief Adjudicator's decision, Canada consented to a new hearing for H-15019 and to the production of revised Narrative and POI Reports for consideration at the new hearing.

[26] H-15019 sought guidance from the administrative judge regarding the new hearing. In particular, he questioned whether Canada was in compliance with the Order. The administrative judge convened a case conference. At the case conference, he directed that there should be a hearing in writing to determine whether Canada had breached its disclosure obligations under the IRSSA by refusing to produce the Cochrane Transcripts. He noted that Canada asserted that the production of the Cochrane Transcripts would be contrary to the letter and spirit of the IRSSA. The administrative judge indicated that if Canada had breached its disclosure obligations, the court would consider in a subsequent hearing whether "the various extraordinary requests for relief" should be granted.

The administrative judge's reasons regarding H-15019's RFD

[27] The administrative judge provided several reasons for his conclusion that Canada did not breach the IRSSA by refusing to produce the Cochrane Transcripts.

[28] First, he agreed with Canada that the reference to transcripts of civil proceedings in his Order did not include any and all transcripts of discovery evidence from prior civil proceedings. He further noted that his Order provides that Canada is only required to produce relevant, non-privileged documents, which, he explained, suggests that the reference to transcripts of "civil proceedings" is meant to refer to proceedings where privilege and confidentiality issues do not apply. He further noted that transcripts from examinations for discovery are protected by the deemed undertaking and can only be used in subsequent proceedings in very limited circumstances.

[29] Second, he concluded that the IRSSA does not impose a general obligation on Canada to produce examination for discovery transcripts. He reasoned as follows:

The IAP Model created an express obligation to disclose examination for discovery transcripts in limited circumstances involving the direct participant in the IAP process. It provides that if a claimant gave evidence at discovery in a prior civil proceeding and now wishes to enter the IAP, he or she must disclose his or her transcript. In essence, a claimant must consent to certain uses of the discovery transcript, if the claimant makes an IAP claim.…

Although as Claimant H–15109 notes, Canada is obligated under Appendix VIII of the IAP model to produce documents containing allegations of abuse, that obligation must be read in context and in a manner that is consistent with the IAP Model as a whole. Appendix XI of the IAP Model addresses the limited circumstances in which discovery transcripts can be used in IAP proceedings. To find that Appendix VIII imposes a general obligation on Canada to produce examination for discovery transcripts would be inconsistent with Appendix XI.

[30] Third, he noted that H-15019 acknowledged that the deemed undertaking applied to the Cochrane Transcripts. He concluded that this was not a case where the deemed undertaking should be lifted. H-15019 was a non-party to the St. Anne's litigation and to the undertakings given. The Supreme Court held in Juman v. Doucette, 2008 SCC 8, [2008] 1 S.C.R. 157, at para. 36, that consent to lift the undertaking will "virtually never be given" in cases where a non-party to the undertaking requests that the undertaking be lifted. The Cochrane Transcripts contain extremely sensitive and personal information, and disclosure should only be ordered if the interests of justice clearly outweigh the harm to the individual who provided the evidence. At his new hearing, H-15019 will have the benefit of the additional information about St. Anne's produced pursuant to the Order: all non-privileged, relevant documents in the St. Anne's civil litigation including pleadings, demands for particulars, responses to those demands, and the OPP documents.

[31] Finally, he found that Canada had met the evidentiary burden of showing that the discoveries were communications made with a view to reconciliation or settlement and, accordingly, the Cochrane Transcripts were covered by settlement privilege.

Analysis: H-15019's appeal

[32] H-15019 or Independent Counsel argue that: the deemed undertaking rule does not apply to the Cochrane Transcripts; if the deemed undertaking rule applies, it was overtaken by the terms of the IRSSA and the administrative judge's interpretations of his Order and the IRSSA were clearly unreasonable; if the deemed undertaking rule applies to the Cochrane Transcripts and was not overtaken by the IRSSA, the administrative judge erred by failing to lift it; and the administrative judge had no evidentiary basis for concluding that discoveries were communications made with a view to reconciliation or settlement and, in any event, erred in law in finding that settlement privilege could extend to discovery transcripts.

[33] Below, I first address Canada's preliminary arguments that (1) this appeal has been rendered moot because a re-hearing of H-15019's IAP application was conducted between the date the administrative judge released his reasons and the hearing of this appeal and he received a substantial award, and (2) to the extent not rendered moot, H-15019 does not meet the test for standing in Fontaine v. Canada (Attorney General), 2015 BCSC 1386, [2015] B.C.W.L.D. 6683 (the "Cachagee RFD") to seek circulation of the Cochrane Transcripts into the IAP at large.

[34] Then I turn to the arguments of H-15019 and Independent Counsel.

(1) A preliminary issue: Is H-15019's appeal moot, and, if so, should the court exercise its discretion to hear his appeal? Does he have standing to pursue this appeal?

[35] The re-hearing of H-15019's IAP claim was conducted on July 12, 2017, after the administrative judge released his reasons dismissing his RFD, and with the benefit of the additional information about St. Anne's that had been produced pursuant to the Order. H-15019 reasserted that he had suffered prolonged sexual abuse by a particular priest. Canada supported his claim. He was awarded compensation totaling $183,556.

[36] If, subsequent to the initiation of a proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. A court may nonetheless elect to address a moot issue if the circumstances warrant: Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, at p. 353.

[37] In relation to H-15019, the only issue determined by the administrative judge (and the only issue argued on H-15019's appeal) was whether Canada was required to disclose the Cochrane Transcripts. I agree with Canada that determining whether the administrative judge erred in concluding H-15019 was not entitled to disclosure of the Cochrane Transcripts will have no practical effect on H-15019's rights. As indicated above, H-15019's IAP claim has been re-heard. At the re-hearing, the adjudicator accepted his story and determined that he had suffered a level of sexual abuse that entitled him to the highest level of compensation. I do not see how further disclosure could impact him. Hence, his RFD, to the extent it seeks relief personal to him is moot.

[38] However, in my view, the circumstances warrant the court hearing H-15019's appeal. Unquestionably, an adversarial relationship continues to prevail between the appellants and Canada. All appear, represented by counsel. Further, judicial economy favours determining these issues: H-15019's appeal has been briefed and argued; and K-10106 and Mr. Metatawabin also sought an order for disclosure of the Cochrane Transcripts in their RFD, the administrative judge invoked his determination regarding disclosure of the Cochrane Transcripts in his reasons on their RFD, and I conclude below that at least K-10106 had standing. Moreover, H-15019 sought relief in relation to other affected St. Anne's survivors, and not just himself. In the circumstances, I do not think that determining the issues would be viewed as a departure from the court's traditional role.

[39] I reject Canada's argument that H-15019 no longer has standing and we should decline to hear his appeal on that basis. He had standing when he brought his RFD. Although intervening events may remove the very foundation of the controversy between parties, such as in Borowski, this has not happened here. Many of the circumstances that existed when H-15019 brought his RFD continue to exist, such as those that warrant the court hearing the appeal under the mootness analysis. I therefore move beyond these preliminary issues to consider the appeal on its merits.

(2) Does the deemed undertaking rule apply to the Cochrane Transcripts?

[40] In Doucette, the Supreme Court explained the rationale and scope of the deemed (or "implied") undertaking rule. The root of the undertaking is the statutory compulsion to participate in pre-trial discovery: Doucette, at para. 20. The rule provides that evidence compelled during pre-trial discovery from a party to civil litigation can be used by parties only for the purpose of the litigation for which it was obtained, unless and until the scope of the undertaking is varied by judicial order or a situation of immediate and serious danger emerges: Doucette, at paras. 1 and 3. In this way, the rule provides a measure of protection to the examinee's privacy interest. It also provides some assurance to the examinee that his or her documents and answers will not be used for a collateral purpose. This encourages a more complete and candid discovery: Doucette, at paras. 25-26.

[41] Ontario is among the jurisdictions that have enacted rules more or less codifying the common law deemed undertaking rule. Rule 30.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides that the parties and their lawyers are deemed to undertake not to use discovery evidence "for any purposes other than those of the proceeding in which the evidence was obtained."

[42] H-15019 disputes that he acknowledged before the administrative judge that the deemed undertaking applies to the Cochrane Transcripts. He argues that the Cochrane Actions are the same proceeding as IAPs under the IRSSA, and that the administrative judge made this finding in RFD-1. Therefore, the deemed undertaking rule does not restrict the use of the Cochrane Transcripts in IAPs under the IRSSA.

[43] Independent Counsel advance a different argument. They argue that the deemed undertaking in r. 30.1.01(3) of the Rules of Civil Procedure does not apply because r. 30.1.01(7) specifically permits the use of discovery evidence in subsequent proceedings in accordance with r. 31.11(8), and r. 31.11(8) applies in these circumstances.

[44] I reject these arguments.

[45] H-15019 did not provide a copy of his submissions before the administrative judge regarding the applicability of the deemed undertaking rule. However, assuming that the administrative judge was mistaken that H-15019 acknowledged that the deemed undertaking applies to the Cochrane Transcripts, I do not agree that any and all IAPs of St. Anne's survivors are the "proceeding in which the evidence was obtained", within the meaning of r. 30.1.01(3). The discovery evidence at issue was obtained in 62 distinct civil actions instituted in Cochrane by 154 survivors of St. Anne's. H-15019 was not a plaintiff in any of the Cochrane Actions. He argues that the evidence of a survivor obtained in a civil proceeding commenced by that survivor can be used for the purpose of an IAP of a different survivor because they are the same proceeding. In my view, they are clearly not the same proceeding. They involve different claimants. To the extent that the administrative judge concluded otherwise in RFD-1, I respectfully disagree with him.

[46] Rule 30.1.01(7) provides that the deemed undertaking in r. 30.1.01(3) "does not prohibit the use of evidence or information in accordance with subrule 31.11(8) (subsequent action)." Rule 31.11(8) provides as follows:

(8) SUBSEQUENT ACTION – Where an action has been discontinued or dismissed and another action involving the same subject matter is subsequently brought between the same parties or their representatives or successors in interest, the evidence given on an examination for discovery taken in the former action may be read into or used in evidence at the trial of the subsequent action as if it had been taken in the subsequent action. [Emphasis added.]

[47] Rule 31.11(8) is inapplicable. Most of the Cochrane Actions settled before the advent of the IRSSA. No other actions could be or were subsequently brought in relation to the subject matter of those settled actions. As to the remaining Cochrane Actions, if an IAP claim is an "action" within the meaning of that term in r. 31.11(8), the "action…subsequently brought" is the IAP claim made by a particular survivor, and not, as Independent Counsel argues, any and all IAP claims made under the IRSSA. The parties in any and all IAPs would not be the same as in a civil action commenced by a particular St. Anne's survivor. Similarly, the "subject matter" would not be the same. The subject matter would be different abuse perpetrated on different persons, possibly by different perpetrators.

(3) Was the administrative judge's interpretation of the Order and the IRSSA unreasonable?

[48] The interpretation of the IRSSA is a question of mixed fact and law reviewable for palpable and overriding error: Canada (Attorney General) v. Fontaine, 2017 SCC 47, [2017] 2 S.C.R. 205, at para. 35 ("SCC Archives"). As the Supreme Court noted, "the factual matrix looms large in ascertaining the meaning of this particular contract".

[49] Clearly, a deferential standard of review also applies to the administrative judge's interpretation of his own Order, issued to ensure Canada's compliance with its disclosure obligations under the IRSSA.

[50] I am not persuaded by the submissions of H-15019 or Independent Counsel that there is any basis to interfere with the administrative judge's interpretation of the IRSSA or his Order.

[51] The IAP scheme is set out in Schedule D to the IRSSA. Appendix VIII to Schedule D is entitled "Government Document Disclosure". After setting out Canada's obligation to search for, collect and provide reports setting out the dates the claimant attended a residential school and about the alleged perpetrators of abuse, Appendix VIII provides, in relevant part, that:

Upon request, the Claimant or their lawyer will receive copies of the documents located by the government, but information about other students or other persons named in the documents (other than alleged perpetrators of abuse) will be blacked out to protect each person's personal information, as required by the Privacy Act.

The government will also gather documents about the residential school the Claimant attended, and will write a report summarizing those documents. The report and, upon request, the documents will be available for the Claimant or their lawyer to review.

[52] Appendix XI of Schedule D, entitled "Transition from Litigation or ADR Projects, and Priorities for Access to the IAP", sets out specific rules for pre-existing evidence.

[53] It provides that where a claimant who has given evidence in litigation proceedings (including participation in an examination for discovery), wants to and is eligible to enter the IAP, the record of the previous evidence must be provided to the adjudicator in the IAP. The adjudicator may use it as a basis to question the claimant and the claimant may adopt their previous evidence rather than provide a narrative account at the hearing.

[54] H-15019 and Independent Counsel essentially argue that the administrative judge erred in interpreting what they say is Canada's unqualified disclosure obligations in Appendix VIII in light of its express obligations in Appendix XI regarding when discovery transcripts can be used in IAP proceedings.

[55] The administrative judge did not err in his approach. Interpretation of written contractual provisions must be grounded in the text and read in light of the entire contract: see SCC Archives, at para. 37. He properly read the general language in Appendix VIII in light of Appendix XI, which sets out specific rules for the use of pre-existing evidence in the IAP.

[56] Moreover, the fact that strict confidentiality of the IAP was intended and that nobody except the survivor was meant to have access to the story of the survivor are "surrounding circumstances" that may be considered in interpreting the IRSSA: SCC Archives, at paras. 42-43. The interpretation argued by H-15019 would potentially permit others to have access to the story of a survivor.

[57] The existence of the deemed undertakings is a further surrounding circumstance that may be considered in interpreting the IRSSA. These surrounding circumstances buttress the reasonableness of the administrative judge's interpretation of the IRSSA.

[58] Further, the administrative judge's interpretation of his own Order is not unreasonable. It is grounded in the wording of his Order, and it is consistent with his interpretation of the IRSSA.

[59] Accordingly, the deemed undertaking rule was not displaced by the IRSSA or the Order.

(4) Did the administrative judge err by failing to lift the deemed undertaking?

[60] Rule 30.1.01(8) of the Rules of Civil Procedure recognizes that the court may order that the deemed undertaking in r. 31.1.01(3) does not apply:

30.1.01(8) ORDER THAT UNDERTAKING DOES NOT APPLY – If satisfied that the interest of justice outweighs any prejudice that would result to a party who disclosed evidence, the court may order that subrule (3) does not apply to the evidence or to information obtained from it, and may impose such terms and gives such directions as are just.

[61] H-15019 and Independent Counsel essentially argue that in concluding that disclosure should not be ordered the administrative judge erred in his assessment of both the prejudice to examinees and the interests of justice.

[62] H-15019 and Independent Counsel argue that there would be no prejudice to the examinees if the deemed undertaking rule were lifted because the examinees' privacy interests are adequately protected by the requirement in Appendix VIII of the IAP that "information about other students or other persons named in the documents (other than alleged perpetrators of abuse) will be blacked out to protect each person's personal information".

[63] While the administrative judge did not specifically address this argument in the reasons that are the subject of this appeal, he rejected it in an earlier decision regarding the disposition of documents created within the IAP: Fontaine v. Canada (Attorney General), 2014 ONSC 4585, 122 O.R. (3d) 1 ("SCJ Archives"). On appeal, this court noted that the administration judge accepted "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": Fontaine v. Canada (Attorney General), 2016 ONCA 241, 130 O.R. (3d) 1, at para. 69 ("OCA Archives"). And in SCC Archives, at para. 47, the SCC recognized the administrative judge's concern and the risk that disclosure could result in deep discord within communities, noting the evidence of one claimant that her community was "so small and close" that she could be easily identified even were her name omitted. At para. 46, the Supreme Court also characterized the nature of the information disclosed during IAPs as "the most sensitive and private in nature". This description is equally applicable to information in the Cochrane Transcripts. The provision for redaction in the IAP is not a basis to interfere with the administrative judge's decision not to lift the deemed undertaking.

[64] H-15019 also argues that there was no evidentiary foundation for the administrative judge's comment at para. 19 of the reasons below that, "in any event, the informational content of the [Cochrane Transcripts] ...is more or less available from the publicly available court documents in the civil cases or by the 12,000 Cochrane documents already produced." In making this argument, I take Claimant H-15019 to suggest that the administrative judge erred in his assessment of the interests of justice in lifting the undertaking.

[65] However, I note that in the portion of the administrative judge's reasons where he specifically considers whether he should exercise his discretion to lift the deemed undertaking, the administrative judge simply writes that Claimant H-15019 will have the benefit of the additional information about St. Anne's produced pursuant to the Order: all non-privileged, relevant documents in the St. Anne's civil litigation including pleadings, demands for particulars and responses to those demands, and the OPP documents. There is no doubt that these documents provided considerable additional information. Having presided at RFD-1 and RFD-2, the administrative judge presumably had a good sense of their reach. In my view, he was entitled to consider the fact that considerable information was already available to Claimant H-15019 in determining whether the interests of justice outweighed the prejudice to the examinees of setting aside the deemed undertaking and providing further disclosure to him. His assessment of the interests of justice was not infected by a palpable and overriding error.

[66] Doucette cautions at para. 38 that, "an undertaking should only be set aside in exceptional circumstances". As the administrative judge highlighted in his reasons, this is a case where a non-party sought to lift the undertaking. In my view, the administrative judge gave sufficient weight to all relevant considerations and his exercise of discretion not to order disclosure was not based on an erroneous principle. There is no basis for this court to interfere with his exercise of discretion.

(5) Are the Cochrane Transcripts protected by Settlement Privilege?

[67] Evidence of communications exchanged by parties with the intent of settling a dispute is prima facie inadmissible in litigation. The purpose of this common law evidentiary rule is to promote honest and frank discussions between the parties and thereby promote settlement: see Sable Offshore Energy v. Ameron International Corp., 2013 SCC 37, [2013] 2 S.C.R. 623, at paras. 2, 12 and 13; Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35, [2014] 1 S.C.R. 800, at paras. 1, 31, 34 and 37.

[68] At para. 34 of his reasons, the administrative judge wrote:

In 2005, the parties to the civil proceedings negotiated a settlement, and it was a term of this settlement that if a plaintiff had not already been examined for discovery, then he or she would be examined for discovery for the purposes of negotiating the quantum of the settlement. All the examinations for discovery were made part of the settlement process.

[69] At para. 124, the administrative judge agreed with Canada that the Cochrane Transcripts were covered by settlement privilege and disagreed with Claimant H-15019 that Canada had not met the evidentiary burden of showing that the discoveries were communications made with a view to settlement.

[70] As indicated above, H-15019 and Independent Counsel's submissions are two-fold: (1) there was no evidentiary basis for the facts found by the administrative judge at para. 34 of his reasons and, in any event, (2) settlement privilege covers negotiations, and does not extend to examinations for discovery, which by their nature are for the purpose of eliciting evidence as to facts.

[71] I have concluded that there is no basis to interfere with the administrative judge's assumption that the deemed undertaking rule applied to the Cochrane Transcripts; his conclusion that the IRSSA and his Order do not override the deemed undertaking rule and, except as provided in Appendix XI, provide for disclosure of the Cochrane Transcripts; or his decision not to lift the deemed undertaking. Accordingly, I need not determine whether there was an adequate basis for the administrative judge's finding at para. 34 and leave for another day whether "examinations for discovery [that were] part of the settlement process", as described by the administrative judge at para. 34 of his reasons, are covered by settlement privilege because they are connected to the negotiations.

[72] Accordingly, I would dismiss H-15019's appeal.

D. K-10106 AND Mr. METATAWABIN'S RFD

Background regarding K-10106 and Mr. Metatawabin

[73] K-10106's IAP claim that she was abused by another student at St. Anne's was resolved in June 2012 – several years before this RFD was brought. She received a substantial compensation award.

[74] Mr. Metatawabin is a former Chief of Fort Albany First Nation and an executive member of Peetabeck Keway Keykaywin Association ("PKKA"), the St. Anne's Survivors Association. He has been involved for decades in seeking to address the abuse at St. Anne's.

[75] Mushkegowuk Council, the governance body for the seven First Nations in Ontario that mostly border James Bay, Hudson Bay and west of James Bay, requested that he bring forward the RFD on behalf of the former students of St. Anne's.

The scope of their RFD

[76] K-10106 and Mr. Metatawabin's RFD includes allegations that K-10106's former lawyers had not disclosed that they acted for the Catholic Church entities that operated St. Anne's in the Cochrane Actions and other litigation, and that they knew of the existence of the documents that were the subject of RFD-1 but never sought directions from the court to require their disclosure. They also allege that the law firm that acted for another claimant (who did not join in the RFD) should have, but failed to, bring a request for directions to compel the filing of proper disclosure for that claimant's IAP hearing.

[77] K-10106 and Mr. Metatawabin sought extensive, far-reaching relief in their RFD, including:

• The re-opening of the deadline for the filing of IAP claims by former students of St. Anne's;

• A determination of why Canada did not disclose the documents that were the subject of RFD-1;

• An order compelling Canada to produce the Cochrane Transcripts, in redacted form, for the IAP;

• An order entitling all St. Anne's survivors whose claims were determined before disclosure was made in accordance with RFD-1 and RFD-2 to a re-hearing of their claims, together with compensation for claimant counsel that is not contingent upon outcome, and compensation to PKKA personnel who assist in the process;

• An order that Canada make admissions, or the Chief Adjudicator make findings, from documents that have been disclosed, with respect to student-on-student abuse, as they say is contemplated by Appendix VIII;

• Directions as to the process to seek damages against the lawyers for breach of contract, breach of fiduciary duty and/or unjust enrichment; and

• Various funding, including an order that Canada provide funding to PKKA in trust for aboriginal cultural and health support programs of $500,000 per year for three years.

The administrative judge's reasons on the standing and jurisdiction issues

[78] The administrative judge noted that para. 31 of the Courts' orders approving the IRSSA contemplates that specified persons and entities "or such other person or entity" as the court may allow, "after fully exhausting the dispute resolution mechanisms contemplated in the [IRSSA]", may apply to the court for directions in respect of implementation, administration or amendment of the IRSSA on notice to all affected parties.

[79] K-10106 and Mr. Metatawabin are not among the specified persons or entities. Therefore, the question was whether the administrative judge should grant them standing to bring their RFD.

[80] He applied the three-part test for standing to bring an RFD formulated by Brown J. in the Cachagee RFD: (1) is there a serious issue to be tried; (2) is the person or entity directly affected by or does it have a genuine interest in the issues raised; and (3) is there another reasonable and effective manner by which the issue can be brought before the court?

[81] The administrative judge concluded that they did not satisfy any of the elements of the Cachagee test. While K-10106 and Mr. Metatawabin raise serious issues to be tried, "the serious issues are not their issues but rather personal issues between an IAP claimant and his or her lawyer and these personal complaints are outside the purview of the IRSSA and the IAP". Further, they have no personal interest in the serious issues raised in the RFD. Finally, there is a reasonable and effective manner by which their claims of solicitors' negligence and breach of fiduciary duty can be brought before the court: normative litigation outside of the IRSSA.

[82] He acknowledged that Mr. Metatawabin had previously been granted standing in other RFDs, but his standing had not been challenged in those RFDs and there were others who had standing to advance the RFD.

[83] The administrative judge went on to conclude that, in any event, the court did not have, or should not exercise, jurisdiction to grant the relief sought given:

• It has already been judicially determined that the court does not have jurisdiction to vary the deadline for filing IAP claims: Myers v. Canada (Attorney General), 2015 BCCA 95, 70 B.C.L.R. (5th) 338.

• It is not the court's role under the IRSSA or under its general jurisdiction to conduct investigations. Moreover, why some of these documents were not initially disclosed was investigated and explained in RFD-1 and RFD-2.

• Their concerns regarding the Cochrane documents are addressed in his reasons on H-15019's RFD.

• The re-opening of settled IAP claims was addressed in RFD-1.

• The court has no jurisdiction to order Canada to make admissions or to order the Chief Adjudicator to make certain findings of fact: RFD-1, at paras. 14 and 244.

• The requests for relief regarding the lawyers go beyond the court's jurisdiction in relation to the IRSSA and should be brought pursuant to the Rules of Civil Procedure, in the Superior Court of Justice.

• There is nothing in the IRSSA that envisions providing funding as sought by PKKA and the requested relief would amount to an amendment of the IRSSA.

K-10106 and Mr. Metatawabin's position

[84] K-10106 and Mr. Metatawabin agree that the administrative judge applied the correct test in determining whether they should be granted standing. They argue that he erred in his application of that test.

[85] They say that he erred by focusing on their complaints regarding the lawyers. The predominate relief they requested was for the court to issue directions with respect to, and provide a remedy to, all St. Anne's survivors whose IAP claims were based on an incomplete and, therefore, false factual foundation.

[86] They argue that there is no other reasonable and effective manner in which the issues they raise can be brought before the court. They submit that in concluding otherwise, the administrative judge failed to consider the particularly vulnerable nature of the St. Anne's survivors, the fact that Mr. Metatawabin and PKKA are their chosen representatives, and the difficulty of notifying the St. Anne's survivors of "Canada's violations of the IRSSA". They say that because of the confidentiality of the IAP process, only the Chief Adjudicator is in a position to notify claimants.

[87] Finally, they argue that the administrative judge wholly disregarded the United Nations Declaration on the Rights of Indigenous Peoples, which, it argues, confirms the right of PKKA, as the chosen representatives of the St. Anne's survivors, to bring its RFD.

[88] As to the issue of jurisdiction, K-10106 and Mr. Metatawabin argue that, in light of Canada's non-disclosure, the court has ample jurisdiction to direct an independent review of all claims of St. Anne's survivors based upon the full evidentiary record with each claimant entitled to elect a full rehearing should he or she choose to do so, and to order Canada to pay the costs of independent legal advice and health support services for each such claimant. Their submissions make clear that their RFD seeks more than directions about a process whereby individual St. Anne's survivors might advance requests for case-by-case re-hearings.

[89] On appeal, K-10106 and Mr. Metatawabin do not challenge any of the administrative judge's other findings on the jurisdiction issue.

Analysis

[90] I agree with K-10106 and Mr. Metatawabin that, given the broad scope of their RFD, the administrative judge's standing analysis was tainted by his focus on their complaints regarding the lawyers.

[91] As indicated above, K-10106 and Mr. Metatawabin seek an order that all St. Anne's survivors are entitled to a full re-hearing and K-10106 is a St. Anne's survivor whose claim was determined before the additional disclosure that was the subject of RFD-1 and RFD-2 was produced. She is directly affected or has a genuine interest in that issue, and in the issue of the production of the Cochrane Transcripts. Mr. Metatawabin, who did not make a claim under the IAP, is not personally affected by the request for re-hearings. However, he is an executive member of PKKA, which represents St. Anne's survivors, and sought funding on behalf of PKKA. In that sense, he might be said to have a genuine interest. Further, unlike the issues relating to the lawyers, the issue of entitlement to re-hearings is not an issue that should be litigated outside the IRSSA. I would have granted standing to K-10106, and, possibly, to Mr. Metatawabin. However, this does not affect the outcome of this appeal.

[92] In my view there is no basis to interfere with the administrative judge's conclusion that the court does not have, or should not exercise, its jurisdiction to order the broad entitlement to re-hearings that K-10106 and Mr. Metatawabin seek, or to order a re-hearing of K-10106's claim.

[93] As the administrative judge noted, he had determined in RFD-1 that although the court had the jurisdiction to re-open settled claims as a result of a breach of Canada's disclosure obligations, that jurisdiction must be exercised on a case-by-case basis and that, in each case, more than "a theoretical miscarriage of justice" must be shown. RFD-1 was not appealed. Mr. Metatawabin has been involved in the litigation regarding the Cochrane Transcripts for many years. He was involved in RFD-1 and swore an affidavit concerning the documents at the heart of RFD-1 which requested, on behalf of PKKA, that the court order an independent review of all of the St. Anne's cases.

[94] The administrative judge considered whether the court should exercise its jurisdiction to order a re-hearing in the specific case of K-10106. He concluded that, in the case of K-10106, "there is no reason to believe that the outcome of the IAP process was unjust or that the extraordinary circumstances for court intervention exist." In particular, he found that there is no basis to believe that the absence of the documents affected the outcome of her claim. K-10106 was successful and received a substantial award within the parameters of the IAP. "The amount of her award was determined by her own story, her own experience, her own injuries, and this evidence was before the Adjudicator because Claimant K-10106 had the courage and perseverance to tell her story."

[95] There is no basis to interfere with his conclusion that the court should not exercise its case-by-case jurisdiction in the case of K-10106.

[96] Accordingly, I would dismiss K-10106 and Mr. Metatawabin's appeal.

E. Disposition and Costs

[97] For the reasons above, I would dismiss these appeals.

[98] Canada does not seek costs of the appeals against the appellants. However, at the hearing, it suggested that it would seek costs against counsel for the appellants personally because of the allegations about Canada and its lawyers' conduct. The appellants and Independent Counsel indicated that they would seek costs, regardless of the outcome of the appeals. If Canada seeks costs against counsel for the appellants personally, it should provide written submissions within 14 days. In those submissions, it should also address its position in relation to the appellants and Independent Counsels' request for costs.

[99] Appellants' counsel and Independent Counsel may respond to those submissions within 14 days thereafter.

Released: May 7, 2018

"Alexandra Hoy A.C.J.O."

"I agree R.G. Juriansz J.A."

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

Footnotes

[1] Fontaine v. Canada (Attorney General), 2017 ONCA 26, 137 O.R. (3d) 90, at paras. 1 and 51 ("Spanish IRS")

[2] As well as Bishop Horden Indian Residential School.

[3] On January 17, 2018, the western administrative judge allowed Canada's RFD regarding this issue and concluded that procedural fairness was not an implied term in the IRSSA: Fontaine v Canada (Attorney General), 2018 BCSC 63, [2018] B.C.J. No. 55. IAP claims cannot be re-opened by the Chief Adjudicator and his designates, as H-15019's IAP claim was re-opened, on the basis of a denial procedural fairness uncovered by new evidence. This decision did not affect already re-opened IAP claims, such as H-15019's claim.

[4] The IAP awards compensation points for sexual abuse and consequential harms on a scale of 1 to 5. It also awards compensation for severe physical abuse, other wrongful acts, loss of opportunity, and future care. Compensation points can be increased by 5-15% for aggravating factors. The adjudicator believed H-10519's account and gave him the highest level of compensation points, and the largest aggravating factor allowance. The categories in which H-15019 did not receive the top level of compensation points involved the ongoing effects of the terrible abuse H-15019 suffered. Disclosure of the Cochrane Transcripts would not have affected these categories.

[5] To be clear, the deemed undertaking rule would not prevent the use of discovery evidence of a survivor in his or her own IAP. Indeed, as discussed below, Appendix XI of the IAP specifically recognizes this.

[6] See also Fontaine v. Canada (Attorney General), 2018 ONSC 103, [2018] O.J. No. 20 where the administrative judge addresses this issue at length.

[7] The administrative judge's findings on jurisdiction were also dispositive of H-15019's RFD, to the extent he sought relief not specific to H-15019.

[8] He also requested, on behalf of the PKKA, that the court determine why Canada did not disclose the documents that were the subject of RFD-1. Relief that he again seeks in this RFD.

[9] The appellants made this submission in written submissions immediately following the hearing of the appeal.