Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210729 DOCKET: M52692 (C68080)

Fairburn A.C.J.O., Roberts and Thorburn 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. François d’Assise, Institut des Soeurs du Bon Conseil, Les Soeurs de Saint-Joseph de Saint-Hyacinthe, Les Soeurs de Jésus-Marie, Les Soeurs de l’Assomption de la Sainte Vierge, Les Soeurs de l’Assomption de la Sainte 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 Épiscopale 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 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 Soeurs 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.

Defendants (Respondent)

Counsel: Joanna Birenbaum, for the appellant National Centre for Truth and Reconciliation Catherine A. Coughlan and Brent Thompson, for the respondent Attorney General of Canada Stuart Wuttke and Jeremy Kolodziej, for the respondent Assembly of First Nations P. Jonathan Faulds, Q.C., for the respondent National Administration Committee

Heard: in writing

On appeal from the order of Justice Paul M. Perell of the Superior Court of Justice, dated January 20, 2020, with reasons reported at 2020 ONSC 366.

Reasons for Decision

[1] By reasons released on April 1, 2021, this court allowed in part the appeal by the National Centre for Truth and Reconciliation (“NCTR”) of the January 20, 2020 order of the Eastern Administrative Judge, Paul M. Perell J., regarding the disposition of proposed statistical reports and records arising out of the Indian Residential Schools Settlement Agreement (“IRSSA”) and the Independent Assessment Process (“IAP”). Specifically, this court ordered that the proposed statistical reports (“Static Reports”) be prepared by the Chief Adjudicator and produced under seal to Perell J. for the purpose of addressing issues of confidentiality, reliability and archival utility.

[2] As set out in paragraph 86 of this court’s reasons, given that the Chief Adjudicator’s mandate was scheduled for completion on March 31, 2021, it was recognized that further direction may be required concerning next steps:

Accordingly, we order that any proposed Static Reports be produced in final form by the Chief Adjudicator, placed under seal, and submitted to the Supervising Judge prior to the rehearing. If the Chief Adjudicator is unable to produce the proposed Static Reports prior to the closure of the Secretariat, the parties may seek direction from this court.

[3] The Chief Adjudicator was not able to prepare the Static Reports because of the completion of his mandate. As a result, the NCTR brought a motion for directions to this court asking that an independent third-party statistical expert be appointed to prepare the Static Reports. Canada opposes the NCTR’s motion; it takes the position that Canada should prepare the Static Reports.

[4] During case management of the NCTR’s motion for directions, a preliminary issue arose as to whether the motion should be heard by this court or remitted to Perell J. for management and determination. Written submissions on this preliminary issue were requested and delivered.

[5] The NCTR, supported by the Assembly of First Nations (“AFN”) and the National Administration Committee (“NAC”), submits that for reasons of efficiency, consistency with this court’s April 1 order, and judicial independence and integrity, this court should hear the NCTR’s motion for directions in order to give effect to its order that the Static Reports be produced. The NCTR contends that the judge who will adjudicate on the reports, once they are produced, should not also have been involved in determining how the reports should be prepared.

[6] Canada disagrees and maintains that the motion for directions to determine who should prepare the Static Reports is more properly brought before Perell J. who, as the Eastern Administrative Judge, has jurisdiction to deal with IRSSA matters, has already dealt with the other motions concerning the disposition of the records related to the IRSSA and IAP, and to whom this court remitted the Static Reports issue by its April 1, 2021 order. It would be inappropriate and inefficient for this court to have an ongoing supervisory role over these issues.

[7] There is nothing in paragraph 86 of this court’s reasons that seizes this court with determining who should prepare the Static Reports. While the parties were invited to seek directions from this court if the Chief Adjudicator was unable to produce the Static Reports, that is precisely what the court is now engaged in, providing directions on how to move forward. We agree with Canada’s position.

[8] It is not appropriate or desirable that we determine this issue. It may have been a different matter if the parties had come to an agreement regarding the appointment of the person who will prepare the Static Reports and were simply seeking a consent order. However, as Mr. Faulds quite rightly pointed out in his submissions for the NAC, the proceedings concerning the Static Reports have been contentious. They continue to be so. The adjudication of the issue of who should prepare the Static Reports will require an exchange of affidavit and other materials and, possibly, cross-examinations. It is therefore a more appropriate and expedient use of judicial resources for the issue to be managed, litigated and determined in the Superior Court of Justice.

[9] We are also of the view that the matter should be remitted to Perell J. In 2013, Perell J. was appointed the Eastern Administrative Judge to implement and administer the IRSSA and make directions regarding the disposition of the IAP documents. He has therefore gained extensive knowledge and experience in dealing with all matters arising out of the IRSSA and IAP for Ontario. Accordingly, Perell J. is well positioned to determine this issue. This is particularly so given that this court has already remitted to him the related issue of addressing the questions of the confidentiality, reliability and archival utility of the Static Reports. Therefore, he is best placed to determine the issue of who should prepare the Static Reports.

[10] Accordingly, we order that the NCTR’s motion for directions be remitted to Perell J. for case management and adjudication.

[11] In the circumstances, we make no order as to costs.

“Fairburn A.C.J.O.”

“L.B. Roberts J.A.”

“J.A. Thorburn J.A.”