COURT OF APPEAL FOR ONTARIO

DATE: 20200710

DOCKET: M51618 (C68407)

Simmons J.A. (Motion Judge)

BETWEEN

Larry Philip Fontaine, et al

Plaintiffs

and

The Attorney General of Canada, et al

Defendants (Respondents/Responding Party)

In the Matter of the Request for Directions by Dr. Edmund Metatawabin and by IAP Claimants T-00185, S-20774 and S-16753

Requestors (Appellants/Moving Parties)

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

Michael Swinwood and Fay K. Brunning, for the moving parties

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

David Schulze, for the responding party Independent Counsel

Geoffrey D.E. Adair, for Wallbridge, Wallbridge (seeking to be recognized as a party)

Stuart Wuttke, for the responding party Assembly of First Nations (no submissions made)

Heard: July 9, 2020 by videoconference

REASONS FOR DECISION

A. introduction

[1] The moving party appellants are survivors of the St. Anne's Indian Residential School that was located in Fort Albany, Ontario. They have appealed a June 5, 2020 direction/order (the “Order”) of the Eastern Administrative judge (the "EAJ") made in the administration of the Indian Residential Schools Settlement Agreement ("IRSSA").

[2] The Order directs that a Request for Directions filed by the appellants (the “appellants’ RFD”) be heard by Brown J. of the British Columbia Supreme Court (the “BCSC”).

[3] The appellants were residents of Ontario when the IRSSA was approved. They contend that under its terms and the terms of related approval and implementation orders, the appellants’ RFD must be determined by a judge of the Ontario Superior Court of Justice (the “ONSC”).

[4] On this motion, the appellants seek a stay of the Order pending appeal and an order expediting their appeal.[^1] The respondent, the Attorney General of Canada (“Canada”) has filed a responding Request for Directions (Canada’s RFD”) seeking to strike the appellants’ RFD. I understand that Canada’s RFD has been set for hearing on July 14, 2020 in British Columbia. This motion was accordingly brought on an urgent basis and these reasons are somewhat abbreviated as a result.

[5] The disputed issues on this motion are as follows:

(i) is the Order final, such that this court has jurisdiction to entertain the appellants’ appeal; or is the Order interlocutory, such that this court would not have jurisdiction to entertain the appellants’ appeal;

(ii) if the Order is final, what test should be applied in determining whether to grant a stay;

(iii) if the Order is final, should a stay be granted;

(iv) is the law firm Wallbridge, Wallbridge entitled to party status on the appeal because it was a signatory to the IRSSA?

(i) The IRSSA and related orders

[6] The IRSSA is a settlement of several class actions arising from abusive conduct and resulting harm at Indian Residential Schools (“IRS”). The IRSSA was approved in late 2006 and early 2007 by nine superior courts across Canada. Among other things, the IRSSA and the related approval orders established an Independent Assessment Process ("IAP") to resolve claims related to physical and sexual abuse suffered by survivors and to provide compensation for the harm that was suffered.

[7] Subject to certain exceptions, Article 1.01 of the IRSSA defined “Appropriate Court” as meaning “the court of the province or territory where the Class Member resided” on the date the last of the approving courts issued its approval of the IRSSA.

[8] In March 2007, the approving courts issued implementation orders addressing the implementation and administration of the IRSSA. A Court Administration Protocol (“CAP”), attached as Appendix “A” to each of the implementation orders, established “a streamlined process for addressing all matters that require[d] court orders, directions or consideration” during administration of the agreement.

[9] The CAP provided that each involved jurisdiction would have a Supervising Judge, two of whom would be Administrative Judges. Currently, the EAJ is from Ontario and the Western Administrative Judge ("WAJ") is from British Columbia.

[10] The CAP further provided that all matters requiring “court orders, directions or consideration” should be brought to the attention of the Administrative Judges by filing an RFD. Upon receipt of an RFD, the Administrative Judges (or one of them)[^2] would determine whether a case management conference was required or whether the matter should be directed to a hearing. If a hearing was required, the Administrative Judge(s) would determine in which jurisdiction the hearing should be held. Paragraph 5 of the CAP sets out various principles to guide the Administrative Judges in determining in which jurisdiction a hearing would be held. The relevant provisions read as follows:

5. Should a hearing be required, the Administrative Judges will make such direction and determine the jurisdiction in which the hearing should be held. In making this determination the Administrative Judges will be guided by the following principles:

a. Where the issue(s) involve relief for a particular class member or particular class, the hearing will be directed to the supervising court with jurisdiction over the class member or class pursuant to the terms of the Agreement and the Approval Orders.

b. Where the issue(s) affect more than one jurisdiction, but not all, the hearing will be directed to a supervising court in one of the affected jurisdictions.

c. Where the issue(s) affect all jurisdictions, the hearing may be directed to any court supervising the Agreement.

f. In applying these principles, the Administrative Judges may also be guided by any other consideration that he or she deems to be appropriate in the circumstances.

(ii) The appellants’ RFD

[11] In May 2020, the appellants filed the appellants’ RFD (which they later amended in early June 2020) requesting enforcement of certain aspects of orders made by the Ontario Supervising Judge dated January 14, 2014 and June 23, 2015. Those orders pertained to Canada's obligations under the IRSSA for disclosure and other matters designed to facilitate the IAP for individual claimants.

(iii) The Order

[12] The EAJ and the WAJ each issued the Order, referred to as a "Joint Direction", in identical terms.

[13] In the Order, the EAJ explained that he had decided to recuse himself from hearing the appellants’ RFD[^3]. He also referred to the relevant provisions of para. 5 of the CAP. Given the options of assigning the RFD to another Ontario Superior Court judge or to another Supervising Judge, the EAJ explained why the latter course was chosen. It was his opinion, and the opinion of the WAJ, that the interests of judicial economy and experience were proper considerations under para. 5(f) of the CAP and that those interests would not be served by assigning the RFD to a judge unfamiliar with the IRSSA and related jurisprudence. This was particularly the case in light of the reality that the Indian Residential Schools Adjudication Secretariat is scheduled to cease operations as of March 31, 2021, and on May 29, 2020 the WAJ ordered that all adjudications of IAP claims be completed by December 1, 2020. Finally, the EAJ noted that the current norm of virtual hearings would permit the appellants’ attendances without risking travel and safety concerns arising from the COVID-19 pandemic.

B. discussion

(1) Is the Order under appeal final or interlocutory?

[14] It is not for me, sitting as a single judge of this court, to determine whether this court has jurisdiction to entertain the appellants’ appeal. Nonetheless if I were persuaded that the Order under appeal was interlocutory, or even probably interlocutory, that would militate against granting the requested stay.

[15] Canada relies on a line of authorities applying the test in Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675 (C.A.), to argue that the Order is procedural and interlocutory: Brunning v. Fontaine, 2019 ONCA 98, 144 O.R. (3d) 410; Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375; and Brunning v. Canada (Attorney General), 2018 ONCA 1009.

[16] In my view, however, the effect of the Order goes beyond simple procedural rights and finally determines a substantive matter – the appellants’ entitlement to have the RFD heard in the forum they say is prescribed by the CAP.

[17] In Fontaine v. Canada (Attorney General), 2018 ONCA 832, on a stay motion, Sharpe J.A. said, at para. 7:

An order that finally determines the forum for the dispute is a final order for the purposes of appeal, even though the substantive issues remain to be determined by the court or tribunal held to have jurisdiction.

[18] I accept that as a correct statement of the law applicable to the final/interlocutory issue on the facts of this case.

(2) What test should be applied in determining whether to grant a stay?

[19] Canada submits that the “strong cause” approach for granting a stay, outlined by the Supreme Court of Canada in Z.I. Pompey Industrie v. ECU-Line N.V., 2003 SCC 27, [2003] 1 S.C.R. 450, and Douez v. Facebook, Inc., 2017 SCC 33, [2017] 1 S.C.R. 751, should be applied in this case, rather than the more traditional tripartite test set out in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311.

[20] Under the strong cause approach, where a contract includes a forum selection clause, the analysis proceeds in two stages. First, the party seeking to stay the proceedings based on the clause must establish that the clause is enforceable under contract law. This includes considerations such as unconscionability, undue influence, and fraud. Second, if the clause is enforceable, the onus shifts to the plaintiff to show “strong cause” for why the court should not enforce the clause. At this stage, the court must consider “all of the circumstances”, which can include convenience to the parties, fairness, and the interests of justice broadly.

[21] I do not accept Canada’s argument. The strong cause approach has been applied largely in commercial cases where a party to a commercial contract has commenced an action in a forum different from that identified in a contractual forum selection clause and another party to the contract has requested a permanent stay of that action on the basis of the forum selection clause. That is not this case.

[22] Here, there is no commercial contract and no definitive forum selection clause governing actions arising from that contract. Rather, the parties acknowledge that the CAP was formulated by the judges involved in approving the IRSSA as a means of streamlining court supervision of its administration and implementation and subsequently accepted by the parties.

[23] More importantly, what is at issue in this case is not whether the CAP should be complied with but rather how it should be interpreted. The appellants submit that para. 5(a) of the CAP requires that the appellants’ RFD be submitted to a judge of the ONSC. Canada contends that para. 5(f) of the CAP gives the Administrative Judge(s) broad discretion to direct that the appellants’ RFD be heard elsewhere. Leaving all else aside, given that the issue on the appeal and this stay motion is one of interpretation rather than enforceability, I conclude the more appropriate test is that set out in RJR-MacDonald.

(3) Applying the RJR-MacDonald test, should a stay be granted?

[24] The RJR-MacDonald test requires consideration of three issues to determine whether it is in the interests of justice that a stay be granted: (1) is there a serious question raised on appeal? (2) will the appellants suffer irreparable harm if a stay is not granted? and (3) the balance of convenience.

(a) Serious Question on Appeal

[25] In my view, the appellants’ argument that para. 5(a) of the CAP is mandatory and cannot be displaced by para. 5(f) of the CAP raises a serious question of interpretation for the purposes of appeal.

[26] The language of para. 5(a) is mandatory: “Where the issue(s) involve relief for a particular class member or particular class, the hearing will be directed to the supervising court with jurisdiction” [emphasis added]. Arguably, the discretion conferred by para. 5(f) is constrained by principles of contractual interpretation (e.g. the specific overrides the general) as well as its arguably restrictive language (in applying the guiding principles of para. 5, Administrative Judges may be guided by other considerations – but query whether this authorizes them to departing from an arguably mandatory guiding principle such as para. 5(a)).

[27] Canada submits that many cases have been decided in a jurisdiction different from the one where the dispute arose. However, Canada could identify no case similar to this one where the issues raised relate solely to claimants who were all resident in the same province on the IRSSA approval date. Moreover, Canada acknowledged that the interpretation issue relied on by the appellants was not raised in any of the decisions on which Canada relies.

[28] Canada also argues that the appellants have already appeared in British Columbia. In my view, that does not affect the question whether the EAJ was entitled to direct the RFD to proceed in British Columbia.

(b) Irreparable Harm

[29] Canada did not meaningfully respond to the appellants’ argument that irreparable harm could flow from allowing this matter to proceed simultaneously in two different courts: by way of appeal in this court and by way of Canada’s RFD in the British Columbia Supreme Court with the potential for inconsistent results. Allowing such proceedings involves not only the potential for duplicative costs, but also the potential for inconsistent results. The latter would harm not only the parties but also potentially the administration of justice.

(c) Balance of Convenience

[30] I acknowledge the importance of having the RFD proceed efficiently and expeditiously having regard to the stage to which the IAP process has progressed. However, that factor does not trump the importance of having para. 5 of the CAP interpreted on appeal and avoiding the potential for inconsistent results. Further, I am satisfied that this court can expedite the appeal so that an appeal will not create undue delay.

[31] I also acknowledge Canada’s arguments that the appellants are attempting to relitigate matters that have already been determined. However, the Administrative Judges directed that a hearing be held. That hearing, which may also involve Canada’s RFD, and not this motion, is the forum for determining whether the appellants are entitled to the relief they seek.

[32] I conclude that the balance of convenience favours granting a stay.

(4) The Wallbridge, Wallbridge Issue

[33] Wallbridge, Wallbridge did not bring a formal motion to be added as a party on appeal and minimal argument was directed to this issue. The main objection to their participation seemed to be that they have a request to be added in the proceeding below which has not yet been dealt with.

[34] Other than to support Canada’s position on the motion, Wallbridge, Wallbridge did not make substantive submissions but asked that an exception to any stay be granted so that they may pursue cross-examinations. I fail to see how any such exception is necessary when the stay that is sought relates only to the transfer order. In the circumstances, I decline to address their request for party status as there is no formal motion before me.

C. disposition

[35] Based on the foregoing reasons: 1. the appeal is expedited; 2. the Order is stayed pending appeal on terms that the appeal be prosecuted diligently including completing the following steps: a) the appeal shall be perfected by July 21, 2020; b) factums from party(s) supporting the appellants’ position shall be filed by July 21, 2020; c) Canada’s factum and factums from party(s) supporting Canada’s position shall be filed within 14 days following receipt of the appellants’ factum; d) the parties shall coordinate with the Senior Legal Officer to set a convenient date for hearing the appeal.

[36] Costs of this motion are reserved to the panel hearing the appeal.

“Janet Simmons J.A.”

[^1]: Independent Counsel supported the appellants’ requests. In these reasons, I have referred to submissions by either of them as the appellants’ submissions. [^2]: Under the CAP, any task to be carried out by the Administrative Judges may be carried out by either one of them acting alone or both acting together. [^3]: The Order was made without notice to or submissions by the parties. The EAJ participated in directing the appellants’ RFD to the WAJ for hearing although he had recused himself from hearing the appellants’ RFD. It is not clear to me that notice or submissions were required under the CAP. The appellants did not raise an issue about the EAJ’s participation in the Order after recusing himself from hearing the appellants’ RFD.