Court of Appeal for Ontario

Date: 2018-09-12

Docket: M49603 (C65851)

Judge: Sharpe J.A. (In Chambers)

Between

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

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

Respondent (Moving Party): Chief Adjudicator Indian Residential Schools Adjudication Secretariat

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

Counsel

For the Moving Party: Joseph Arvay (Q.C.) and Sandy Lockhart

For the responding parties, J.W. and REO Law Corporation: Richard Olschewski

For the responding party, The Attorney General of Canada: Catherine Coughlan and Brent Thompson

Heard: September 12, 2018

Reasons for Decision

Introduction

[1] The Chief Adjudicator of the Independent Assessment Process ("IAP") under the Indian Residential Schools Settlement Agreement ("IRSSA") seeks a stay of a Direction issued by the Eastern Administrative Judge. The Direction at issue prohibits the Chief Adjudicator from continuing his participation in three appeals. One of these appeals, the REO Appeal, is before the Supreme Court of Canada: see J.W. and REO Law Corporation v. Attorney General of Canada et al., SCC Case Number 37725. Two others are before the British Columbia Court of Appeal: see Ronnie Gail Scout v. Attorney General of Canada et al., BCCA File No. CA44379; Larry Philip Fontaine et al. v. Attorney General of Canada et al., BCCA File Nos. CA45085 and CA 45093. The REO Appeal is of particular concern because it is scheduled to be heard by the Supreme Court of Canada on October 10, 2018. It is expected that the two British Columbia appeals will be heard in November and December.

[2] The Eastern Administrative Judge issued the Direction on his own initiative without notice to the Chief Adjudicator or any other party, and apparently without any supporting record.

[3] The Direction was issued on September 5, 2018 and directs the Chief Adjudicator to withdraw from the three appeals by September 13, 2018. Given the urgency of this matter, an immediate answer from this court is required and accordingly these reasons will be relatively brief.

Jurisdiction

[4] The Respondent the Attorney General of Canada submits that as the Direction amounts to an interlocutory case management type order, this Court has no jurisdiction to entertain the appeal and, accordingly, that no stay should be granted: Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6(2), 19.

[5] I recognize that as a single judge, I have no final authority to determine the issue of jurisdiction. However, as no stay should be granted in a case over which this court lacks jurisdiction, I must deal with the issue.

[6] The difficulty with the Attorney General's submission is that the Chief Adjudicator is named as a respondent in the REO appeal and has participated as a respondent to this point. The Direction requires the Chief Adjudicator to withdraw from the appeals and terminate his participation. That amounts to a final determination of the Chief Adjudicator's rights of participation as a party and, in my view, is a final order over which this court does have jurisdiction.

Standing

[7] The respondents J.W. and REO Law Corporation submit that the Chief Adjudicator lacks standing to bring this appeal. While Chief Adjudicator may in certain circumstances participate in appeals brought by others, they argue that he has no right to commence an appeal in his own right.

[8] While the Chief Adjudicator may not be able to initiate an appeal from an IAP decision in his own right, that is not what is involved here. The Chief Adjudicator has been named and recognized as a party in the REO appeal. The Direction directly targets the Chief Adjudicator's participation as a party in the REO appeal and would terminate that participation. In my view, that gives rise to an issue affecting the legal rights of the Chief Adjudicator and he therefore does have standing to appeal the Direction.

The Test for a Stay

[9] It is common ground that the well-established three-part test for a stay applies. The applicant must demonstrate that there is a serious issue to be tried; that it will suffer irreparable harm if the stay is not granted; and that the balance of convenience favours a stay pending the disposition of the appeal: RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311.

(1) Serious Question to be Tried

[10] I am satisfied that the Chief Adjudicator's appeal raises arguable grounds of appeal and serious questions to be determined by this court.

[11] First, neither the Chief Adjudicator nor any other party was given notice of the Eastern Administrative Judge's concern regarding the Chief Adjudicator's participation in the appeals. It is certainly arguable that proceeding without notice and without submissions amounted to a denial of procedural justice. It is difficult to see why notice and opportunity to address the Eastern Administrative Judge's concerns could and should not have been given. The Direction takes the form of a judicial order and the reasons given to support it are in the form of a judicial judgment. Accordingly, it is arguable that the usual norms of procedural fairness should have been followed. Of particular concern is the finding in the Direction that the Chief Adjudicator is guilty of "insubordination of the Courts to which he is accountable". This is a finding of serious misconduct made against a lawyer and there is a serious issue as to whether it should have been made without giving the lawyer an opportunity to respond.

[12] Second, the Direction relates to proceedings in other courts. The Chief Adjudicator is a respondent or an intervenor to the appeals in those other courts and is therefore subject to the control of those courts. The Chief Adjudicator accepts that he is subject to the usual limitations imposed upon administrative tribunals who participate in proceedings that challenge their decisions as outlined in Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44, [2015] 3 S.C.R. 147. He disputes that he has transgressed those limits and submits that if he has, that is an issue for courts before whom the Chief Adjudicator appears. I agree with the submission that there is an arguable issue as to whether the Eastern Administrative Judge erred in assuming the authority to determine the nature and scope of the submissions the Chief Adjudicator should make in other courts.

[13] Third, there is an issue as to whether the Chief Adjudicator has exceeded the limits of participation permitted for a tribunal in proceedings that challenge the tribunal's decision. The Chief Adjudicator points out that he has regularly participated in appeals from decisions of supervising and administrative judges and that no issue has been taken with that participation. He strongly contests the Eastern Administrative Judge's characterization of his participation in the three appeals at issue and asserts that no one has challenged the Chief Adjudicator's submissions in the three courts as being inappropriate. The Chief Adjudicator also submits that the Eastern Administrative Judge erred by finding that the Chief Adjudicator cannot challenge decisions of supervising and administrative judges on appeal, even if he respects the limits the law imposes on the arguments administrative tribunals may make. Again, I am satisfied that these amount to serious issues to be tried.

(2) Irreparable Harm

[14] The appeal before the Supreme Court of Canada is scheduled to be heard on October 10. If a stay is not granted and the Chief Adjudicator is required to withdraw his factum and participation in that appeal tomorrow, it is difficult to see how the matter could be put back on the rails. The effect of denying the stay would be, in a practical sense, to deprive the Chief Adjudicator of the opportunity to participate in that appeal. It is difficult to see any other remedy that would repair that harm. Accordingly I am satisfied that the Chief Adjudicator has shown if a stay is denied, he will suffer irreparable harm.

(3) Balance of Convenience

[15] I am satisfied that the balance of convenience favours granting a stay. If a stay is refused, the Chief Adjudicator's participation in the appeals will be terminated and, in one case at least, terminated without hope of resurrection. On the other hand if, as the Eastern Administrative Judge thinks, the Chief Adjudicator's participation exceeds the limits of what is permitted, the courts before whom the Chief Adjudicator appears can deal with that problem and limit his participation accordingly.

[16] I recognize that granting a stay effectively determines the issue on appeal in favour of the Chief Adjudicator insofar as the REO appeal is concerned. It is accepted that where a stay would effectively determine the matter at issue, a court may go beyond the "serious issue to be tried" standard and grant the stay if the applicant shows a strong likelihood of success: RJR-Macdonald, at p. 338. In my view, the Chief Adjudicator has met that standard, particularly with respect to the issue of procedural fairness.

[17] Granting the stay will not preclude this court from considering the general issues as to the nature of the relationship between the Eastern Administrative Judge and the Chief Adjudicator on the appeal.

Disposition

[18] For these reasons, the Direction of the Eastern Administrative Judge is stayed pending appeal to this court. As requested by the Chief Adjudicator, the stay is effective as of the date of the Direction in order to facilitate retaining and payment of counsel for this motion.

[19] This is not a case for costs of the motion.

[20] In the circumstances, the hearing of the appeal shall be expedited and I will case manage the appeal to ensure that it is heard as soon as possible.

Robert J. Sharpe J.A.