COURT OF APPEAL FOR ONTARIO
CITATION: Fontaine v. Canada (Attorney General), 2020 ONCA 688
DATE: 2020-11-02
DOCKET: C68407
Fairburn A.C.J.O., Rouleau and Miller JJ.A.
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
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, Institut des Soeurs du Bon Conseil, Les Soeurs de Saint-Joseph de Saint-Hyancithe, Les Soeurs de Jésus-Marie, Les Soeurs de l’Assomption de la Sainte Vierge, Les Soeurs de l’Assomption de la Saint Vierge de l’Alberta, Les Soeurs de la Charité de St.-Hyacinthe, Les Oeuvres Oblates de l’Ontario, Les Résidences Oblates du Québec, La Corporation Episcopale Catholique Romaine de la Baie James (The Roman Catholic Episcopal Corporation of James Bay), The Catholic Diocese of Moosonee, Les Soeurs Grises de Montréal/Grey Nuns of Montreal, Sisters of Charity (Grey Nuns) of Alberta, Les Soeurs de la Charité des 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 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 Episcopale Catholique Romaine de Grouard, Roman Catholic Episcopal Corporation of Keewatin, La Corporation Archiepiscopale Catholique Romaine de St. Boniface, Les Missionnaires Oblates Soeurs 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, OMI Lacombe Canada Inc. and Mt. Angel Abbey Inc.
Defendants (Respondent)
Fay K. Brunning and Michael Swinwood, for the appellants Edmund Metatawabin, St. Anne’s IAP Claimant T-00185, St. Anne’s IAP Claimant S-20774, and St. Anne’s IAP Claimant S-16753
Catherine Coughlan and Brent Thompson, for the respondent Attorney General of Canada
Stuart Wuttke, for the respondent Assembly of First Nations
David Schulze, for the respondent Independent Counsel
Evatt Merchant, for the respondent Merchant Law Group
Estée Garfin, for the intervener Attorney General of Ontario
Heard: September 21, 2020 by video conference
On appeal from the order of Justice Paul M. Perell of the Ontario Superior Court of Justice, dated June 5, 2020, with reasons reported at 2020 ONSC 3497.
Rouleau J.A.:
A. OVERVIEW
[1] The appellants are a group of claimants who suffered physical and sexual abuse while attending St. Anne’s Indian Residential School (“St. Anne’s IRS”) in Fort Albany, Ontario. They are class members of the Indian Residential School Settlement Agreement (“IRSSA”), a national class action settlement, who seek to use the Independent Assessment Process (“IAP”), one of the two major methods of financial compensation created by the IRSSA, to receive compensation for the physical and sexual abuse that they suffered at St. Anne’s IRS.
[2] Nine different superior courts across Canada, also known as the supervising courts, issued orders approving the IRSSA in late 2006 and early 2007. Annexed to those orders was a Court Administration Protocol (“CAP”) that governs the process for hearing any Request for Directions (“RFD”) brought by class members or the parties to the IRSSA.
[3] In May 2020, the appellants filed a RFD regarding several matters, including the obligation of the respondent, the Attorney General of Canada (“the respondent”), to comply with previous orders to disclose and produce documents and materials that are relevant to the IAP claims of the appellants.
[4] In a joint direction released on June 5, 2020, the Supervising Judge of the Ontario Superior Court of Justice (“Ontario Supervising Judge”), acting as the Eastern Administrative Judge pursuant to the CAP, directed that this RFD be heard by Brown J. in her capacity as Supervising Judge of the Supreme Court of British Columbia (“British Columbia Supervising Judge”). The appellants appeal that order and seek to remit the matter to the Chief Justice of the Ontario Superior Court of Justice (“Chief Justice”) so that the Chief Justice may reassign the RFD to another judge of the Ontario Superior Court of Justice.
[5] For the reasons that follow, I would allow the appeal.
B. BACKGROUND
(1) The IRSSA
[6] In December 2006 and January 2007, nine superior courts from the three territories and the six provinces from British Columbia to Québec approved a Canada-wide agreement known as the IRSSA that settles various class actions and civil claims related to Indian Residential Schools. By its terms, the IRSSA effectively combined all of the outstanding litigation relating to Indian Residential Schools into a single class action, with the class being composed of approximately 79,000 persons, all former residents of an Indian Residential School who were living as of May 30, 2005: Baxter v. Canada (Attorney General) (2006), 2006 41673 (ON SC), 83 O.R. (3d) 481 (S.C.), at para. 4. This national class was broken down into various sub-classes “for the purpose of determining which of the nine approving courts has jurisdiction over the claim of a specific class member”: Baxter, at para. 5. For example, Ontario residents come within the jurisdiction of the Ontario Superior Court.
[7] In Baxter, at para. 8, Winkler R.S.J., as he then was, approved the IRSSA but did so subject to several concerns being addressed by the parties. One such concern was the exercise of jurisdiction by the supervising courts. Notably, there was a need to address the “provisions of the settlement that may impact on the ability of this and every other approving court to exercise its respective power over the implementation and administration of the settlement, as it affects the class members under its specific jurisdiction”: Baxter, at para. 80.
(2) The CAP
[8] The CAP was drafted to address this concern. On March 8, 2007, the nine supervising courts issued Implementation Orders incorporating the terms of the IRSSA and otherwise addressing its implementation and administration. Each of the nine Implementation Orders included the CAP as Schedule “A”, outlining the procedure for the superior court’s ongoing supervision of the implementation and administration of the IRSSA. The Preamble to the CAP explains that the CAP responds to the need for “a streamlined process for addressing all matters that require court orders, directions or consideration during the course of the administration” so as to “ensure the efficient and expeditious administration of the Agreement”.
[9] In each of the nine supervising courts, a judge acts as the Supervising Judge of that court. The CAP provides that two Administrative Judges are selected from among these nine Supervising Judges. One such Supervising Judge becomes the Eastern Administrative Judge. The Ontario Supervising Judge currently holds that position, and it is his order that is under appeal. The other is the Western Administrative Judge, a position currently held by the British Columbia Supervising Judge, the judge to whom the appellants’ RFD has been referred for hearing.
[10] Lastly, of notable importance for this appeal is para. 5 of the CAP. It provides that, if the Administrative Judges decide that a RFD requires a hearing, they will determine the supervising court that will hear the RFD by applying the principles outlined in para. 5. The relevant provisions of para. 5 are as follows:
- 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.
(3) RFDs
[11] Another important factor allowing for the proper administration of the IRSSA is the use of RFDs. As determined in para. 2 of the CAP, a party or claimant who seeks “court orders, directions or consideration” during the course of the IRSSA’s administration must file a RFD that is brought to the attention of the Administrative Judges, who will then determine whether a case management conference or a hearing is required by applying the principles in the CAP. If a hearing is required, the Administrative Judges assign the hearing of the RFD to one of the nine supervising courts.
C. FACTS
[12] St. Anne’s IRS was located in Fort Albany, Ontario on James Bay and “was the site of some of the most egregious incidents of abuse within the Indian Residential School system”: Fontaine v. Canada (Attorney General), 2014 ONSC 283, [2014] 2 C.N.L.R. 86 (“Fontaine #1”), at para. 105. The Ontario Provincial Police (“OPP”) conducted an investigation of St. Anne IRS between 1992 and 1996, during which it collected a good deal of documentation and information. The investigation ultimately led to criminal charges against seven former employees of St. Anne’s IRS, all but one of whom were convicted: Fontaine #1, at para. 109. In addition to the criminal proceedings, numerous civil actions were launched, with parties seeking damages for the abuse suffered by the students. These civil claims were largely incorporated into the IRSSA.
(1) The First RFD
[13] According to the appellants, the respondent had not met its disclosure obligations under the IAP put into place by the IRSSA. The IAP requires the respondent to produce a broad array of documentation and prepare reports summarizing documents relating both to St. Anne’s IRS and the alleged abusers employed at St. Anne’s IRS.
[14] To compel the disclosure of the documents, the Truth and Reconciliation Commission of Canada and a group of 60 claimants from St. Anne’s IRS each brought a RFD that the Eastern Administrative Judge heard in December 2013, in his capacity as Ontario Supervising Judge. The relief sought was granted. The order provided, in part, that the respondent must produce the extensive documentation: Fontaine #1, at paras. 210-13. Further, the order provided that the respondent had to revise the previously produced narrative and reports to incorporate the information contained in the additional documentation, as required by the IAP: Fontaine #1, at para. 15.
(2) The Second RFD
[15] Several months following this order, the group of claimants from St. Anne’s IRS, joined by claimants from Bishop Horden IRS, believed that the respondent had not yet complied with these new obligations. As a result, they brought a further RFD that the Eastern Administrative Judge heard in his capacity as Ontario Supervising Judge. On June 23, 2015, an additional order was released, requiring the respondent to revise the various documents and summaries it had prepared: Fontaine v. Canada (Attorney General), 2015 ONSC 4061, [2015] 4 C.N.L.R. 87, at para. 4.
(3) The Third RFD
[16] The appellants believe that the respondent still has not complied with these orders. They have brought a new RFD, seeking, among other relief, full compliance with the two previous orders. It is this RFD that the Administrative Judges had to assign for hearing before one of the nine supervising courts. The Eastern Administrative Judge, in a joint direction penned with the Western Administrative Judge, assigned the hearing of this RFD to the Western Administrative Judge, in her capacity as British Columbia Supervising Judge. This RFD has not yet been heard on the merits. It is the Eastern Administrative Judge’s decision to assign the hearing of the RFD to the British Columbia Supervising Judge that is the subject of this appeal.
[17] Central to the appellants’ RFD is the correct interpretation of the two previous orders imposing obligations on the respondent. The appellants also request additional relief should the supervising court find that the respondent has not complied with the previous obligations.
[18] In his reasons for directing that the British Columbia Supervising Judge hear the RFD, the Eastern Administrative Judge explained that, in his capacity as Ontario Supervising Judge, he was unable to hear the matter because he was recusing himself. He noted, however, that this recusal was only in his capacity as Ontario Supervising Judge, not as the Eastern Administrative Judge.
[19] In reaching his decision, the Eastern Administrative Judge relied on the broad discretion given to Administrative Judges in the CAP. Specifically, he referred to para. 5(f), as it provides that, in applying the CAP, the Administrative Judges “may also be guided by any other consideration that he or she deems to be appropriate in the circumstances.” The “considerations” that guided the Eastern Administrative Judge in his decision were the interests of judicial economy and the benefit of assigning the RFD to a judge who has been previously involved in the administration of the IRSSA. In his view, these interests were best served by assigning the matter to the Western Administrative Judge, in her capacity as British Columbia Supervising Judge, given her extensive experience in administrating the IRSSA.
[20] The appellants served a notice of appeal from the Eastern Administrative Judge’s order and brought a motion seeking a stay of his order before this court. The stay was granted on July 10, 2020: Fontaine v. Canada (Attorney General), 2020 64770 (Ont. C.A.).
D. ISSUE ON APPEAL
[21] The only issue on appeal is whether the Eastern Administrative Judge erred in referring the RFD to the British Columbia Supervising Judge for hearing, rather than referring it to the Ontario Superior Court of Justice where, because of his recusal as Ontario Supervising Judge, the RFD would have to be assigned by the Chief Justice to another judge of the Ontario Superior Court of Justice. Before turning to the analysis of that issue, I will address the standard of review.
E. ANALYSIS
(1) Standard of Review
[22] As parties to the IRSSA, Independent Counsel and the Assembly of First Nations maintain that the standard of review is correctness. The Attorney General of Ontario, acting as an intervener in this appeal, shares this perspective.
[23] The Attorney General of Ontario argues that the Ontario Superior Court of Justice exceeded its constitutional jurisdiction by referring the RFD to the Supreme Court of British Columbia. Whether the Ontario Superior Court of Justice has the constitutional jurisdiction to refer a matter to the superior court of another province involves, in his submission, a question of law that is reviewable on the standard of correctness.
[24] For his part, Independent Counsel maintains that correctness is the appropriate standard of review, as the Eastern Administrative Judge was determining which court has the jurisdiction to hear the RFD. Such a decision, being one of jurisdiction, must be reviewed on the standard of correctness: see J.W. v. Canada (Attorney General), 2019 SCC 20, [2019] 2 S.C.R. 224, at paras. 110-12, per Côté J. (concurring). The Assembly of First Nations also adopts this argument. In the alternative, Independent Counsel argues that the CAP is part of the Implementation Order and, as a court order, its interpretation is reviewable on a correctness standard.
[25] The respondent argues, for his part, that the CAP is an integral part of the settlement reached by the parties. As explained by the Supreme Court of Canada, the IRSSA “is at root a contract”: Canada (Attorney General) v. Fontaine, 2017 SCC 47, [2017] 2 S.C.R. 205 (“Fontaine SCC”), at para. 35. Since the IRSSA is a contract, its interpretation “is a question of mixed fact and law reviewable for palpable and overriding error”: Fontaine SCC, at para. 35.The interpretation of the IRSSA, and by extension the CAP, is therefore generally entitled to deference on appeal: see Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at paras. 50-52; Heritage Capital Corp. v. Equitable Trust Co., 2016 SCC 19, [2016] 1 S.C.R. 306, at para. 21.
[26] Furthermore, the respondent rejects the suggestion that the decision under appeal is one of jurisdiction. By not opting out of the IRSSA, all class members became members of the national class and are taken to have attorned to the jurisdiction of all nine supervising courts: see Baxter, at para. 79. The respondent notes that the CAP gives the Administrative Judges broad discretion, as they decide whether a RFD will even be sent for a hearing: National Administration Committee v. Canada (Attorney General), 2019 BCCA 270, at paras. 40-42. It follows that, if they determine that a hearing is necessary, they retain this broad discretion and can select which of the nine supervising courts will hear the matter. Viewed in this way, significant deference is owed to the Administrative Judges, as their decision is one of forum selection, not jurisdiction, and there is no basis for this court to interfere with the Eastern Administrative Judge’s exercise of this discretion.
[27] In my view, the arguments of the respondent cannot stand, and the appropriate standard of review is that of correctness. I have reached this conclusion on two separate bases.
[28] First, the CAP is not a part of the IRSSA or a “contract” settling the claim. Rather, it is an appendix to the Implementation Order, which is a court order that implements the IRSSA. It constitutes, therefore, a directive issued by the nine supervising courts in which they set out how they will exercise their respective jurisdiction to decide issues arising from the implementation of the court approved settlement.
[29] Courts consider the interpretation of a court order to be much like the interpretation of a statute. The interpretation of the CAP involves, therefore, a question of law that is reviewable on the standard of correctness: see Onion Lake Cree Nation v. Stick, 2020 SKCA 101, at paras. 44, 61.
[30] Second, I also view the decision as one of jurisdiction, which means that the appropriate standard of review is also correctness: see J.W., at paras. 110-12, per Côté J. (concurring). As the introductory portion of para. 5 of the CAP indicates, once the Administrative Judges determine that a hearing is required, they “determine the jurisdiction in which the hearing should be held.” Paragraph 5(a) is quite specific in that, where the issue involves relief for a particular class member or particular class, the hearing is directed to “the supervising court with jurisdiction over the class member or class”. Clearly, this makes the decision of the Eastern Administrative Judge one of jurisdiction.
[31] In summary, whether viewed as the interpretation of a court order or the determination of jurisdiction, the decision of the Eastern Administrative Judge is reviewable on the standard of correctness.
[32] However, even if I am wrong about the standard of review and the interpretation of the CAP involves a question of mixed fact and law entitling the Eastern Administrative Judge’s decision to deference, I would nonetheless allow the appeal.
[33] As I will explain, I have concluded that the Eastern Administrative Judge did not consider the mandatory language of para. 5(a) of the CAP. He relied exclusively on the discretionary and permissive language of para. 5(f). Furthermore, he did not interpret para. 5(f) in the context of the purpose of both the IRSSA and of the CAP read as a whole. As a result of these errors, appellate intervention is justified, even if the standard of review is not correctness, as the failure to consider and properly interpret the mandatory language in para. 5(a) of the CAP is an extricable question of law, thereby disentitling the Eastern Administrative Judge’s decision to deference: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 34-37; Sattva, at para. 53.
(2) Did the Eastern Administrative Judge err by referring the appellants’ RFD to the British Columbia Supervising Judge?
[34] The outcome of the appeal turns on the proper interpretation of para. 5 of the CAP. While their interpretations differ, the appellants, the respondent, and the other parties to the IRSSA all rely on the CAP in support of their position.
(a) The Eastern Administrative Judge’s Interpretation of Para. 5(f) of the CAP
[35] In his reasons for directing that the British Columbia Supervising Judge hear the appellants’ RFD, the Eastern Administrative Judge relies almost exclusively on para. 5(f) of the CAP. Specifically, para. 5(f) provides that an Administrative Judge “may also be guided by any other consideration that he or she deems to be appropriate in the circumstances” when applying the principles set out in para. 5. He then explained that the interests of judicial economy and experience were “especially prominent” in the present case because the IRSSA’s administration was in its final stages and the appellants’ RFD needed to be decided on an urgent basis. As a judge possessing a great deal of experience and knowledge in respect to the IRSSA’s administration, the British Columbia Supervising Judge was clearly the appropriate choice.
[36] It is important to note that the Eastern Administrative Judge was equally qualified to hear the RFD. Yet, his decision to recuse himself from the hearing of the RFD explains his direction to assign the RFD to the British Columbia Supervising Judge rather than to another judge of Ontario Superior Court of Justice, as requested by the appellants. Because of his recusal as Ontario Supervising Judge, if the matter remained at the Ontario Superior Court of Justice, a different judge with little or no experience with the IRSSA would hear the RFD. In the Eastern Administrative Judge’s view, such an outcome would not be in the interests of judicial economy and experience.
[37] The Eastern Administrative Judge also noted that, because of the COVID-19 pandemic, the supervising court would hold a virtual hearing. As a result, it was of little consequence whether the judge hearing the RFD was located in British Columbia or in Ontario, as the appellants could remotely attend the hearing from any location in Canada.
[38] I take no issue with the Eastern Administrative Judge’s analysis of para. 5(f). The interests of judicial economy and experience are important considerations. In fact, as submitted by the respondent, the efficient and expeditious administration of the IRSSA was a reason for adopting the CAP, as set out in its Preamble.
[39] In my view, however, the analysis cannot end there. By basing his decision on this one consideration, the Eastern Administrative Judge erred.
(b) The Proper Interpretation of Para. 5(a) of the CAP
[40] In applying the principles set out in para. 5, the Eastern Administrative Judge first had to consider the whole of para. 5. In particular, he had to determine whether para. 5(a), by its terms and language, was mandatory and therefore required that the RFD be assigned to the Ontario Superior Court of Justice. Notably, para. 5(a) specifies that where a RFD raises issues involving “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” (emphasis added).
[41] The appellants’ RFD deals strictly with the rights of members of the Ontario class and involves abuse having occurred exclusively at St. Anne’s IRS, which is an Ontario facility. While the Eastern Administrative Judge includes the text of para. 5(a) among the excerpts of the CAP that were relevant, he carries out no analysis and provides no explanation as to why this provision is not mandatory. Specifically, he makes no mention of the fact that, as used in para. 5(a), the term “will” is properly understood to impose an obligation. In contrast, the term “may”, as it appears in paras. 5(c), 5(d), 5(e), and 5(f), is permissive and discretionary: see Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham, Ont.: LexisNexis Canada, 2014), at paras. 4.56, 4.60, 4.80. Furthermore, he does not address the reference in para. 5(a) to “the” rather than “a” supervising court, which alludes to the fact that where para. 5(a) applies, there is only one specific supervising court that has jurisdiction over the particular class member or particular class.
[42] In my view, the Eastern Administrative Judge had to consider and apply para. 5(a) and interpret it in the context of both the CAP and the IRSSA as a whole. As stated earlier, his failure to do so is an extricable error of law disentitling his decision to deference. In any event, the CAP is a court order and its interpretation involves a question of law, which ensures that the Eastern Administrative Judge’s decision is reviewable on the standard of correctness. Had he carried out the proper analysis, he would have concluded that para. 5(a) was indeed mandatory and it required that RFDs involving strictly Ontario class members and Ontario institutions were to be directed to the Ontario Superior Court of Justice for hearing. The wording of para. 5(a) is clear and unambiguous. In cases such as the present, the RFD “will” be assigned to “the” supervising court with jurisdiction over the class member or class. Notably, the IRSSA itself stipulates that the “Appropriate Court” is the “court of the province or territory where the Class Member resided on the Approval Date”, which is “the date the last Court issued its Approval Order.” This definition links one supervising court, in this case the Ontario Superior Court of Justice, to specific class members, in this case the appellants. By providing clarity as to the court that will hear a RFD, such an interpretation of para. 5(a) also advances the interests of judicial economy and the orderly administration of the IRSSA.
[43] Interpreting para. 5(a) in this way is consistent with Baxter, where the court explained, at para. 5, that the national class created by the IRSSA was to be broken down into sub-classes by province “for the purpose of determining which of the nine approving courts has jurisdiction over the claim of a specific class member.” There would be little point in creating sub-classes for this purpose if all nine supervising courts could exercise jurisdiction to decide any RFD and if the Administrative Judges were free to assign a RFD to any supervising court. In fact, there would be little purpose in having paras. 5(a), 5(b), and 5(c) if the CAP allowed for such unfettered discretion.
[44] If considerations pursuant to para. 5(f) that “may” be taken into account, such as the interests of judicial economy and experience, are used to trump the determination of jurisdiction made pursuant to para. 5(a), the use of “will” in para. 5(a) would be rendered meaningless. Yet, if the term “will” is given its plain and ordinary meaning and is taken to be mandatory, considerations that “may” be taken into account pursuant to para. 5(f) cannot be used to trump the para. 5(a) determination of jurisdiction. When interpreting a court order, one must pay particular attention to the language used in the court order itself: Yu v. Jordan, 2012 BCCA 367, 354 D.L.R. (4th) 8, at para. 53. Much like the fundamental rules of contractual interpretation, specific terminology can override general terms: see BG Checo International Ltd. v. British Columbia Hydro and Power Authority, 1993 145 (SCC), [1993] 1 S.C.R. 12, at p. 24. Here, the use of “will” in para. 5(a), a specific term, overrides the use of “may” in para. 5(f), a general term.
[45] Interpreting para. 5(a) in this way does not render para. 5(f) meaningless. Considerations deemed to be appropriate pursuant to para. 5(f) can be used to decide which is the most appropriate jurisdiction to hear a RFD where the RFD is one that comes within the purview of paras. 5(b) or 5(c). In both of those cases, an Administrative Judge is free to select from among several jurisdictions, which would allow the Administrative Judge to consider relevant factors pursuant to para. 5(f).
[46] This interpretation of para. 5(a) is also consistent with the context and terms of the IRSSA read as a whole. The processes put into place through the settlement were intended, in part, to allow the class members to be heard, favouring healing for the victims and allowing for reconciliation. As explained in an earlier decision, the IRSSA was intended to provide genuine access to justice for the claimants, as “[t]he court has the jurisdiction to ensure that the IRSSA provides both procedural and substantive access to justice”: Fontaine #1, at para. 226; see also N.N. v. Canada (Attorney General), 2018 BCCA 105, 6 B.C.L.R. (6th) 335, at para. 192.
[47] In addition, the Attorney General of Ontario submits the following in his factum:
The access to justice considerations here are particularly pressing considering the trauma that has been inflicted on Indigenous Peoples and communities stemming from the abuse experienced in the Indian Residential School System, the very subject matter at the core of these proceedings.
[48] By providing for a mandatory rule in para. 5(a) of the CAP, the nine supervising courts ensured that RFDs brought by individual class members would be heard by the supervising court in the jurisdiction where a class member lived when the IRSSA was approved. This is likely to be the most convenient supervising court for the class member.
[49] Clearly, access to justice is best served by providing that an issue raised by an Ontario claimant that is relevant only to members of the Ontario class be dealt with by the Ontario supervising court. An Ontario claimant would not expect to incur costs and take the time to travel to Vancouver, British Columbia, or any other province or territory, in order to attend the hearing of a strictly Ontario issue. Here, the appellants voiced their strong preference that their RFD be heard in Ontario. While it might be more expeditious from the court’s point of view to have the matter heard by the Supervising Judge with the most experience and knowledge, wherever that judge is located, in many cases this would impose additional costs on class members, thereby constituting an impediment to access to justice.
[50] However, I acknowledge that, in the context of the ongoing COVID-19 pandemic, it may be that the appellants will be required to attend any hearing by video conference. In that respect, the Eastern Administrative Judge correctly noted that, in the present circumstances, there is little impact on the appellants’ access to the hearing, whether the Supervising Judge is located in British Columbia or Ontario. That fact, however, is not relevant to the interpretation of para. 5(a) and the intent of the parties when they entered into the IRSSA. When the IRSSA was negotiated and the CAP agreed to, it could not have been in the contemplation of the parties that a global pandemic such as COVID-19 would prevent class members from safely attending hearings in person. While the existence of COVID-19 could have been considered by the Eastern Administrative Judge if para. 5(a) were discretionary, such a pandemic has no bearing in the present application of the CAP, given my conclusion that para. 5(a) is mandatory.
[51] For the reasons above, I find that the Eastern Administrative Judge erred by referring the appellants’ RFD to the British Columbia Supervising Judge, as a proper interpretation of the CAP determines that para. 5(a) is mandatory. Therefore, since the appellants are members of the Ontario class, it is the Ontario Superior Court of Justice that has the jurisdiction to hear and determine their RFD.
(c) Further Arguments Advanced by the Respondent
[52] I will now briefly address the remaining arguments advanced by the respondent and explain why they do not affect the conclusion I have reached as to the proper interpretation of para. 5(a).
[53] The respondent argues that the language used in the introductory portion of para. 5 characterizes the subparagraphs that follow as guiding principles that the Administrative Judges can choose to either apply or ignore in the exercise of discretion. While I acknowledge that the introductory portion of para. 5 reads this way, and that some of the subparagraphs address the principles that are to guide discretionary decisions, other subparagraphs – notwithstanding the characterization in the introductory portion – set out mandatory rules that do not involve the application of principles to the exercise of discretion. I do not agree that the introductory portion allows the Administrative Judges to disregard mandatory language of these rule-based provisions, such as the use of “will” in para. 5(a).
[54] The first part of the introductory portion states that the Administrative Judges “will …determine the jurisdiction”. The second part of the introductory portion states that, in making the determination, the Administrative Judges “will be guided by the … principles” outlined in para. 5. Although the introductory portion’s characterization of some of the following subparagraphs is inapt, as explained above, the introductory portion cannot cancel out or render meaningless the use of the word “will” in parts of para. 5, especially given that the word “may” is used in other parts of para. 5. The courts must give effect to the use of different words in the different portions para. 5.
[55] Furthermore, the respondent argues that para. 5(f) is not merely general, permissive, and discretionary. In his submission, the French version of the CAP supports the position that 5(f) is, in fact, directive. The French version of para. 5(f) of the CAP, titled “Protocole des tribunaux régissant l’administration de l’entente”, provides as follows: “les juges administratifs respecteront également tout autre élément jugé pertinent dans les circonstances” (emphasis added). The use of the word “respecteront” in para. 5(f) is, in the respondent’s submission, a clear directive that requires the Administrative Judges to take into account para. 5(f), even where para. 5(a) applies.
[56] I disagree. In my view, the French version of the CAP cannot be used to broaden the interpretation of the English text of para. 5(f). The court was advised that none of the Implementation Orders issued by the nine supervising courts contained the French text. Notably, the French version of the CAP was not even appended to the Implementation Order issued by the Superior Court of Québec. Although the French version appears in the court documents section of the Internet site for the “Residential Schools Settlement”, accessible online from the Government of Canada Internet site, the record before this court does not reveal the source of this translation. In fact, as noted by Independent Counsel, it appears that the translation is, in some respects, questionable in terms of its quality and faithfulness to the English text. In my view, therefore, the French version was not part of the Implementation Orders and was not approved by the supervising courts. It is of no assistance in interpreting the CAP.
[57] In addition, the respondent advances an alternative argument that para. 7 of the CAP provides a complete answer to this appeal. Paragraph 7 reads as follows:
- Nothing in this protocol shall be construed as derogating from the authority of the Administrative Judge in his or her capacity as a supervising judge under this Agreement, and for greater clarity, neither Administrative Judge shall be precluded from referring any matter to be determined to him or herself or to the other Administrative Judge.
[58] The respondent argues that para. 7 gives the Administrative Judges the authority to assign to themselves any RFDs, and it therefore overrides all other provisions of the CAP, including the principles in para. 5. To develop this argument, the respondent relies on a brief comment made by a motions judge on an application for extension of time to perfect an underlying appeal in Tourville v. Fontaine, 2017 BCCA 325. Here, the motions judge determined that “[i]n light of para. 7 of the [CAP], plainly the question of whether either Administrative Judge hears a case cannot be a matter going to the jurisdiction of the Administrative Judge”: Tourville, at para. 35.
[59] In my view, this comment in Tourville is not authority for the interpretation of para. 7 advocated by the respondent. I say so for several reasons. First, as stated by the motions judge, the issue of jurisdiction was never argued before the Western Administrative Judge in the court below: Tourville, at para. 33. As a result, the basis for the court having taken jurisdiction was not addressed by the court below. It was, in fact, unclear to the motions judge whether this was a matter to which paras. 5(a) or 5(b) applied. Second, the comment of the motions judge was more in the nature of obiter. The motions judge carried out no analysis of para. 7 and the brief comment was made without the benefit of submissions regarding its interpretation and application. Third, in any event, the comment speaks to the jurisdiction of Administrative Judges, and it is not clear whether it is intended to address the jurisdiction of Supervising Judges.
[60] Properly interpreted, para. 7 does not assist the respondent. In the case at bar, the Eastern Administrative Judge did not invoke para. 7 as a basis for the exercise of jurisdiction. From my reading of para. 7, he did not rely on it, as it is merely a provision indicating that, by virtue of being an Administrative Judge, the Administrative Judges are not disqualified from exercising their role as Supervising Judges of their respective supervising courts. In other words, the Eastern Administrative Judge could assign the hearing of a RFD to himself as Ontario Supervising Judge without this being considered a conflict of interest or being otherwise improper.
[61] Paragraph 7 is merely a provision ensuring that nothing in the CAP derogates from the authority that Administrative Judges otherwise have as Supervising Judges. Therefore, it is not a source of additional authority.
[62] The respondent then argues that the appellants have attorned to the jurisdiction of the Supreme Court of British Columbia by having appeared at the hearing for the Sunset RFD brought by the Chief Adjudicator of the IAP. This Sunset RFD, heard at the Supreme Court of British Columbia on May 29, 2020, was brought to obtain guidance concerning the end of the IAP and the eventual destruction of IAP documents. After hearing the Sunset RFD, the Western Administrative Judge directed that the adjudication of IAP claims will be completed by December 1, 2020. In the respondent’s submission, by appearing before the Supreme Court of British Columbia on the hearing of the Sunset RFD, the appellants are taken to have brought their current RFD before the Western Administrative Judge and to have advocated for the relief they were seeking. This, in the respondent’s view, amounts to attornment.
[63] I disagree. As the Eastern Administrative Judge explained, the appellants were invited to attend the hearing of the Sunset RFD. Since this Sunset RFD sought to schedule the end of the IAP, the appellants were invited because they could have an interest in its outcome. Notably, the relief sought by the appellants in their own RFD could potentially result in the need to delay the ending of the IAP. The fact that the appellants attended pursuant to that invitation did not make them parties to the Sunset RFD, nor does it constitute attornment to the Supreme Court of British Columbia for the matters they raised in the RFD they had already filed before the Ontario Superior Court of Justice.
[64] Lastly, the respondent lists several instances where RFDs involving class members from one province were heard by the supervising court of a different province. In the respondent’s submission, this proves that para. 5(a) is not mandatory.
[65] I am not persuaded by this submission. Notably, these cases do not appear to address the interpretation of para. 5(a). In any event, the fact that other matters may have been dealt with in a different way does not disentitle the appellants from their right to insist on the respect of the mandatory provisions of the CAP and their right to have their RFD heard by the supervising court with jurisdiction.
F. DISPOSITION
[66] For these reasons, I would allow the appeal and remit the matter to the Ontario Superior Court of Justice for hearing. As the Ontario Supervising Judge has recused himself, it is up to the Chief Justice of the Ontario Superior Court of Justice to assign a different Supervising Judge.
[67] If the parties cannot agree on the issue of costs, I would direct that any party seeking costs is to provide brief submissions, not exceeding 3 pages, within 20 days of the release of this decision. The respondent may provide submissions, also not exceeding 3 pages, within 10 days thereafter.
Released: November 2, 2020
“JMF”
“Paul Rouleau J.A.”
“I agree Fairburn A.C.J.O.”
“I agree B.W. Miller J.A.”