COURT OF APPEAL FOR ONTARIO

CITATION: Fontaine v. Canada (Attorney General), 2020 ONCA 540

DATE: 20200827

DOCKET: M51681 (C68080)

Pepall J.A. (Motion Judge)

BETWEEN

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

Plaintiffs/Respondents

(Responding Parties)

and

The Attorney General of Canada, The Presbyterian Church In Canada, The General Synod of the Anglican Church of Canada, The United Church of Canada, The Board of Home Missions of The United Church of Canada, The Women's Missionary Society of The Presbyterian Church, The Baptist Church In Canada, Board of Home Missions And Social Services of the Presbyterian Church In Bay, The Canada Impact North Ministries of the Company for the Propagation of the Gospel in New England (also known as The New England Company), The Diocese of Saskatchewan, The Diocese of The Synod of Cariboo, The Foreign Mission of The Presbyterian Church in Canada, The Incorporated Synod of the Diocese of Huron, The Methodist Church of Canada, The Missionary Society of the Anglican Church of Canada, The Missionary Society of the Methodist Church of Canada (also known as The Methodist Missionary Society of Canada), The Incorporated Synod of the Diocese of Algoma, The Synod of The Anglican Church of the Diocese of Quebec, The Synod of The Diocese of Athabasca, The Synod of the Diocese of Brandon, The Anglican Synod of the Diocese of British Columbia, The Synod of The Diocese of Calgary, The Synod of the Diocese of Keewatin, The Synod of the Diocese of Qu'appelle, The Synod of the Diocese of New Westminster, The Synod of the Diocese of Yukon, The Trustee Board of the Presbyterian Church. in Canada, The Board of Home Missions and Social Service of the Presbyterian Church of Canada, The Women's Missionary Society of the United Church of Canada, Sisters of Charity, A Body Corporate also known as Sisters of Charity of St. Vincent de Paul, Halifax, also known as Sisters of Charity Halifax, Roman Catholic Episcopal Corporation of Halifax, Les Soeurs de Notre Dame-Auxiliatrice, Les Soeurs de St. Francois d'Assise, Insitut des Soeurs du Bon Conseil, Les Soeurs de Saint-Joseph de Saint-Hyancithe, Les Soeurs de Jesus-Marie, Les Soeurs de l’Aassomption de la Sainte Vierge, Les Soeurs de l'Assomption de la Saint Vierge de l'Alberta, Les Soeurs de la Charite de St.-Hyacinthe, les Oeuvres Oblates de l'Ontario, Les Residences Oblates du Quebec, La Corporation Episcopale Catholique Romaine de la Baie James (The Roman Catholic Episcopal Corporation of James Bay), The Catholic Diocese of Moosonee, Soeurs Grises de Montreal/Grey Nuns of Montreal, Sisters of Charity (Grey Nuns) of Alberta, Les Soeurs de la Charitedes T.N.O., Hotel-Dieu de Nicolet, The Grey Nuns of Manitoba Inc.-Les Soeurs Grises du Manitoba Inc., La Corporation Episcopale Catholique Romaine de la Baie d'Hudson-The Roman Catholic Episcopal Corporation of Hudson's Bay, Missionary Oblates -Grandin Province, Les Oblats de. Marie Immaculee 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 Peres 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 Episcopale Catholique Romaine de Grouard, Roman Catholic Episcopal Corporation of Keewatin, La Corporation Archiepiscopale 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 Episcopale 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 Episcopale Corporation of Mackenzie-Fort Smith, The Roman Catholic Episcopal Corporation of Prince Rupert, Episcopal Corporation of Saskatoon, Omilacombe Canada Inc. and Mt. Angel Abbey Inc.

Defendants/Respondents

(Responding Parties)

Joanna Birenbaum and Chris Grisdale, for the moving party National Centre for Truth and Reconciliation

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

Stuart Wuttke and Jeremy Kolodziej, for the responding party the Assembly of First Nations

Catherine Boies Parker and John Trueman, for the responding party the Chief Adjudicator

Heard by videoconference: August 19, 2020

REASONS FOR DECISION

Background

[1] This motion for a stay and various procedural directions arises in the context of the Indian Residential Schools Settlement Agreement (“IRSSA”). The IRSSA resulted in the establishment of the Independent Assessment Process (“IAP”), under which former students who suffered physical, sexual, or psychological abuse could claim compensation. The IAP is administered by the Indian Residential Schools Adjudication Secretariat (the “Secretariat”) under the direction of the Chief Adjudicator.

[2] Over 38,000 claims have been processed in the IAP and over $3 billion disbursed to former students. The Secretariat uses a database known as SADRE to case-manage the IAP claims. The IAP is coming to an end, and the Secretariat is to be closed and all claims adjudicated by March 31, 2021.

[3] Before Perell J., the Eastern Administrative Judge, the Chief Adjudicator sought directions on the disposition of certain records (“Non-Claim Records”) held by the Secretariat. He made a proposal to archive most of them with the appellant, the National Centre for Truth and Reconciliation (“NCTR”).[^1] This proposal was supported by the appellant and others, but not by the respondent, the Attorney General of Canada (“Canada”).

January 20, 2020 Order

[4] On January 20, 2020, Perell J. rejected the proposal of the Chief Adjudicator and instead directed Canada to bring a Request for Directions (“RFD”) for court approval of a proposal for the archiving of copies of the Non-Claim Records with the appellant subject to certain delineated principles. Canada’s RFD was to be made by June 30, 2020, but the date was then extended to September 30, 2020.

[5] Justice Perell directed that “Final Static Reports,” also referred to as Static Reports,[^2] were to be excluded from the Non-Claim Records to be archived. He concluded that Canada’s submission that the generation of such reports would contravene the orders made in Fontaine v. Canada (Attorney General), 2014 ONSC 4585, aff’d 2016 ONCA 242, aff’d 2017 SCC 47 (the In Rem order) was well-founded. In addition, he wrote at paras. 220-21 of his reasons:

Further, having examined the model Static Reports, I observe that depending on what specific variables are selected, it might be possible by deductive reasoning to disclose the identities of IAP Claimants and this would arguably contravene the Orders made in Canada (Attorney General) v. Fontaine [Claims Records]…. [D]epending on school size and temporal information, and variables based on age, sex, and acts of abuse by province, it might be possible to deduce confidential personal information from some of the proposed Static Reports. I am especially concerned that this may be possible in the case of some small and remote communities, leading to very unfortunate consequences.

He also concluded that the reliability and soundness of the models is doubtful without more information. Furthermore, truth and reconciliation would not be advanced. As such, he determined that Static Reports should not be archived with the appellant.

[6] He also ordered that the Final Static Reports were not to be included in the IAP Final Report and Exhibits K and L of the October 25, 2019 Affidavit of Nicole Hansen, which contained drafts of Final Static Reports, were to remain under seal.

Past Orders

[7] A number of orders have been made by the supervising courts in the course of the administration of the IRSSA. Three that are the subject matter of the stay motion have ordered that the SADRE database be destroyed. These courts have also issued various sunset orders governing the orderly closure of the IAP claims process, the expiry of the Chief Adjudicator’s mandate, and the wind-up of the Secretariat. The process to effect the destruction of SADRE could begin on December 31, 2020 and the Secretariat itself is to close on March 31, 2021.

Appeal

[8] The appellant appealed[^3] from the January 20, 2020 order and asked that: the Static Reports be included in the Adjudicator’s Final Report; the Chief Adjudicator be permitted to generate further aggregate Static Reports from the SADRE database, subject to the requirement that these Reports not identify any IAP claimants or alleged perpetrators; and the Static Reports could be archived with the appellant, Library and Archives Canada, or any other archive. In a nutshell, the appellant’s primary position on appeal is that invaluable information will be permanently lost if the Static Reports are destroyed.

[9] On appeal, Canada’s position is that the appellant’s request to halt the destruction of SADRE is non-justiciable, a collateral attack on the In Rem order already made, and amounts to re-litigation.

Relief Sought on Motion

[10] Before me, the appellant seeks a stay pending appeal and the expiry of any further appeal period of the following: an August 6, 2014 order; para. 5(c) of a July 4, 2018 order; and para. 12 of a May 29, 2020 order, insofar as these orders permit or require the destruction of the SADRE database prior to the determination of the appeal. It also seeks a stay pending appeal of the filing and hearing of Canada’s RFD ordered in the January 20, 2020 order.

[11] In addition, the appellant seeks certain procedural relief: an order expediting the hearing of the appeal; authorization to file a factum in excess of 30 pages; and an order for directions on the appropriate scope of a sealing order for portions of its factum and Fresh as Amended Notice of Appeal.

[12] On the request for a stay, Canada takes the position that it should be refused. It states that in Fontaine, the Supreme Court upheld the order that all who possess confidential information arising from the IAP must destroy it and must also refrain from any collateral use including for statistical and research purposes.

[13] Canada argues that on this motion, the appellant is seeking to suspend the destruction aspect of the Fontaine order relating to the SADRE claims management database. SADRE, according to Canada, must be destroyed and its confidential data cannot be harvested for research or statistical purposes.

[14] As for the RFD, Canada submits that there are no grounds to stop that work on the eve of the IAP sunset of March 31, 2021, and if the appellant is successful in its appeal, Canada’s proposal may be modified.

Discussion

[15] The test for a stay pending appeal is well established and is the same as the test for an interlocutory injunction, as described in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, at p. 334. The court is to consider: whether the appeal raises a serious question to be tried; whether an applicant would suffer irreparable harm in the absence of a stay; and the balance of convenience. The overarching consideration is whether the interests of justice call for a stay: Zafar v. Saiyid, 2017 ONCA 919, at para. 18; Longley v. Canada (Attorney General), 2007 ONCA 149, at paras. 14-15.

[16] In this case, I would decline to issue a stay. The parties all consent to an order for an expedited appeal and the orders that the appellant seeks to stay preserve the SADRE database until December 30, 2020. As a result, a stay is unnecessary if an expedite order is granted and the appeal is heard by the end of October or early November and decided before the end of the year. Indeed, the appellant’s counsel raised this possibility herself. There is also a real issue as to whether the stay relief sought by the appellant may be granted. Three of the orders sought to be stayed were never appealed, and the May 29, 2020 order is from the British Columbia Supreme Court, albeit from the Western Administrative Judge. I am also not persuaded that Canada’s RFD should be delayed, as it may be amended if that proves to be necessary as a result of the appeal decision.

[17] In any event, in my view, it is reasonable to expedite the appellant’s appeal. The appellant is to perfect its appeal by August 31, 2020, and the respondents are to serve and file their materials by September 18, 2020. The appeal is scheduled to be heard on October 29, 2020. For oral argument, the appellant shall have 2 hours, Canada 1 hour, the Chief Administrator 15 minutes, and the Assembly of First Nations 25 minutes.

[18] As for the appellant’s request to file a factum longer than 30 pages, one should be mindful that a longer factum may not be as effective as a focused, succinct factum. Nonetheless, the appellant is authorized to file a factum not to exceed 53 pages in length.

[19] The appellant also seeks directions on the appropriate scope of a sealing order with respect to certain yellow highlighted paragraphs in its proposed factum and in paragraph 5(a)(i) of its Fresh as Amended Notice of Appeal. In essence, it asks for guidance on compliance with the sealing order granted by Perell J. It agrees that all the red highlighted portions should be redacted.

[20] In the order under appeal, at para. 8, Perell J. sealed two exhibits, which contained drafts of the Final Static Reports:

Exhibits K and L of the Affidavit of Nicole Hansen, affirmed October 25, 2019, which contain drafts of the Final Static Reports, shall remain under seal, but the body of the Affidavit and Exhibits A through J may be made available in the court file.

[21] In supplementary reasons concerning the settling of the order (2020 ONSC 2107), at para. 22, Perell J. explained the content of the sealed exhibits:

The exhibits in question contain drafts of the final versions of what were described at the hearing of the RFD and in the Reasons as “Static Reports”. Due to concerns that the Static Reports could be construed as containing what was termed “IAP Personal Information” in the In Rem Order, the Chief Adjudicator’s counsel filed the Hansen affidavit with the court registry on a sealed basis pending further direction from the court, and provided it to other RFD hearing participants’ counsel on an undertaking to keep it confidential. In the Reasons, I directed that IAP Personal Information is to be excluded from the “Non-Claim Records Collection” to be assembled by Libraries and Archives Canada and that if there is any risk that a record could reveal IAP Personal Information, copies of the record shall be excluded from the Non-Claim Records Collection. [Footnotes omitted.]

[22] As mentioned, the “In Rem Order” referred to in the reasons is Perell J.’s order of August 6, 2014, pertaining to documents produced and prepared for the resolution of claims made in the IAP. The In Rem Order, at para. 1 provides in part:

lAP Documents and lAP Personal Information are private and confidential and may not be used or disclosed by anyone for any purpose other than resolving IAP Claims and paying compensation, for the limited purposes of prosecuting criminal or child protection or lawyer regulation proceedings, or as permitted by this Order and any other Orders made by the Supervising Courts in the course of implementation of the Settlement Agreement.

[23] “IAP Personal Information” is defined as “Personal Information about a Claimant, alleged perpetrator or other affected individual in respect of an IAP Claim that is obtained through the administration of an IAP Claim, and includes the fact that an identifiable individual is a Claimant, alleged perpetrator or other affected individual in respect of an IAP Claim”. “Personal Information” is in turn defined as “information that identifies an individual or that, alone or in combination with other available information, could permit or lead to the identification of an individual”.

[24] I have reviewed the yellow highlighted paragraphs in the appellant’s proposed factum and paragraph 5(a)(i) of the Fresh as Amended Notice of Appeal that are in issue. With the exception of the highlighted portions of paragraphs 64 and 65, which expressly reference Exhibit K to the Hanson Affidavit that Perell J. had ordered sealed, and the last sentence of paragraph 90 in the proposed factum, I am unable to identify any problem with the remainder of the yellow highlighted provisions. The questioned statements appear to be generic in nature. As mentioned, the appellant proposes to redact those portions of the proposed factum highlighted in red.

Disposition

[25] In summary: (i) the motion for a stay pending appeal is dismissed; (ii) the appeal is ordered expedited; (iii) the appellant is to perfect its appeal by August 31, 2020; (iv) Canada and the other respondents are to file their materials by September 18, 2020; (v) the appellant may file a factum up to 53 pages in length; (vi) directions on the scope of the sealing order granted by Perell J. permit the appellant to include paragraph 5(a)(i) of the Fresh as Amended Notice of Appeal and all yellow highlights contained in the proposed factum with the exception of those in paragraphs 64 and 65 and the last sentence of paragraph 90 ; and (vii) there shall be no order for costs of this motion.

“S.E. Pepall J.A.”

[^1]: Its mandate under the IRSSA is to archive and store records collected by the Truth and Reconciliation Commission and other records relating to what were known as Indian Residential Schools. [^2]: Final Static Reports, or Static Reports, are new reports generated from the SADRE database used by the Secretariat and reflect final process and outcome data of the 38,000 IAP claims administered under the IAP. Static Reports include tables that represent a fixed extract from SADRE at the end of the IAP. [^3]: The appellant has since filed a Fresh as Amended Notice of Appeal.