Court of Appeal for Ontario

Date: 2021-12-31 Docket: M52780 (C69253)

Before: van Rensburg and Roberts JJ.A. and Tzimas J. (ad hoc)

Between: Larry Philip Fontaine, et al. Plaintiffs

And: The Attorney General of Canada, et al. Defendants (Responding Party)

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

Counsel: Fay K. Brunning and Michael Swinwood, for the moving parties Dr. Edmund Metatawabin and IAP Claimants T-00185, S-20774 and S-16753 Brent Thompson, for the responding party the Attorney General of Canada

Heard: November 22, 2021, with supplementary written submissions

Reasons for Decision

[1] The moving parties brought this motion pursuant to s. 7(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43, to review an order of Strathy C.J.O. dated August 19, 2021, dismissing their motion to extend time to perfect their appeal in Court File C69253. The motion is opposed by the respondent, the Attorney General of Canada (“Canada”).

[2] The moving parties are survivors of the St. Anne’s Indian Residential School (“IRS”) in Fort Albany, Ontario. Their proposed appeal arises in the context of the Indian Residential Schools Settlement Agreement (the “IRSSA”), a court‑supervised class action settlement agreement entered into between Canada, church defendants and plaintiff representatives in 2006. The IRSSA was approved by the orders of nine superior courts across Canada (the “supervising courts”), including an order of the Ontario Superior Court of Justice on March 8, 2007 (the “Implementation Order”). A component of the IRSSA was the independent assessment process (the “IAP”) for the adjudication of abuse claims, which has been supervised by the courts. With the completion of all IAP claims across the country, the IAP was concluded on March 31, 2021.

[3] The order under appeal is dated April 20, 2021 (the “Independent Review Order”). [1] The order was made by Perell J. as Ontario Supervising Judge under the IRSSA in the context of a Request for Directions (“RFD”) by Canada. [2] Canada’s RFD sought an order appointing an independent special advisor (“ISA”) to conduct an independent review of certain IAP claims of the St. Anne’s IRS claimants that were settled before Canada provided additional disclosure pursuant to certain disclosure orders made by the Ontario Supervising Judge on January 14, 2014 and June 23, 2015 (the “2014 and 2015 disclosure orders”). The proposed independent review was for the stated purpose of responding to public concern and confusion about the IAP claims involving St. Anne’s IRS, and in particular about the fairness of adjudications undertaken before Canada had provided the revised disclosure.

[4] The moving parties and others opposed Canada’s RFD on a number of grounds, including that the review process would be a duplication of an RFD proceeding underway before Glustein J. (the “Metatawabin RFD #2”) [3] and that the St. Anne’s IAP claimants would not be permitted to participate in the review process. The moving parties also objected to the Supervising Judge determining Canada’s RFD, on the basis of his earlier recusal from hearing Metatawabin RFD #2. [4]

[5] The Independent Review Order directed an independent review of certain concluded claims of former St. Anne’s IRS students. The order appointed the Honourable Ian Pitfield, who had previously been appointed by the supervising courts for other purposes under the IRSSA, as ISA to conduct the review. The order required the ISA to make a report that contains his findings, conclusions and recommendations, and for the report to be provided to the court as a sealed document, and to Canada.

[6] The moving parties filed a notice of appeal seeking to appeal the Independent Review Order to this court. They raised a number of grounds of appeal, including that the Supervising Judge ought to have recused himself from hearing Canada’s RFD, in view of his recusal in respect of certain matters involving St. Anne’s IRS at an earlier stage; that the order for a review by the ISA does not comply with the IRSSA and the Court Administration Protocol, and amounts to an amendment to the IRSSA; and that the independent review of certain IAP claims of the St. Anne’s IRS claimants, undermines the proceedings that are already underway before Glustein J. in the Metatawabin RFD #2. Pursuant to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the appeal was to have been perfected by May 22, 2021.

[7] In August 2021, the moving parties brought a motion seeking an extension of time to perfect their appeal. The motion judge dismissed the motion to extend time. He referred to the fact that the matter had been before this court previously when, in declining to grant a stay of the Independent Review Order, Paciocco J.A. had characterized the order as “probably interlocutory”. [5] The motion judge also referred to the fact that the moving parties’ motion for leave to appeal the order to the Divisional Court had been dismissed. In refusing an extension of time to appeal to this court, the motion judge observed that the justice of the case (which is the overarching consideration on a motion for an extension of time) did not require an appeal to this court where the moving parties’ statutory appeal rights had been pursued and their appeal had been dismissed.

[8] While it was appropriate for Paciocco J.A. and the motion judge to have considered whether the order was final or interlocutory in determining the stay and extension of time motions, only a panel of the court can determine the question of jurisdiction on a final basis and quash an appeal: see Courts of Justice Act, s. 7(3). As such, the central issue before us when the review motion was argued was whether the Independent Review Order is final or interlocutory, and if final, whether the justice of the case warranted an extension of time.

[9] The moving parties asserted that the Independent Review Order is a final order, while Canada, endorsing the preliminary conclusions on jurisdiction of Paciocco J.A. and the motion judge, argued that the order is interlocutory, and that the moving parties, having sought and been refused leave to appeal to the Divisional Court, had exhausted their appeal rights.

[10] As a result of developments after the hearing of the review motion, it is now unnecessary to determine whether the motion judge erred in concluding that the Independent Review Order is an interlocutory order.

[11] While this motion was under reserve, the court was advised by a letter from counsel for the moving parties that the ISA had issued his report on the independent review on November 30, 2021 and that on December 9, 2021, the Supervising Judge had made an order approving the report and discharging the ISA. Copies of the redacted report and the order were enclosed. In view of these circumstances, the panel invited written submissions on whether the appeal was moot, and if so whether the motion should be dismissed on that basis.

[12] We have now received and considered the parties’ written submissions.

[13] On a motion for an extension of time to appeal or to perfect an appeal, it is appropriate for the court to consider whether the appeal is moot. Just as it would not be in the interests of justice to extend time to appeal an order that lies outside the jurisdiction of this court, it would not be in the interests of justice to extend time to perfect an appeal that is moot: see, for example, Obermueller v. Kenfinch Co-operative Housing Inc., 2016 ONCA 21, where the eviction authorized by the order under appeal had already taken place, and Willenbrecht v. Willenbrecht (1999), 120 O.A.C. 274, where a challenge to Ontario’s jurisdiction to enter a divorce judgment was rendered moot by the other forum ceding to Ontario’s jurisdiction to do so.

[14] An appeal is moot where the factual substratum of the appeal has disappeared. This can occur where the order under appeal has been performed or is otherwise spent: Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, at p. 354. Where an appeal is moot, the court may nevertheless exercise its discretion to hear the appeal, considering such factors as the ongoing adversarial context, concerns for judicial economy and sensitivity to the role of the courts: Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 17. The onus is on the party seeking to permit a moot appeal to proceed to demonstrate why the court should depart from its usual practice of refusing to hear moot appeals: Tamil Co-operative Homes Inc. v. Arulappah (2000), 49 O.R. (3d) 566, at para. 17.

[15] We have concluded that the appeal is moot, and there are no grounds for the exercise of the court’s discretion to hear the appeal. Accordingly, there is no basis for an extension of time to appeal.

[16] The process contemplated by the Independent Review Order has been completed. The order appointed Mr. Pitfield as ISA to perform a review. The review has taken place and the ISA has submitted his report which has also been approved, through a subsequent order.

[17] The moving parties, while continuing to make submissions about why it was wrong for the Supervising Judge to make the Independent Review order, and raising new concerns about the substance of the report and the procedures followed by the ISA, as well as the orders of the Supervising Judge approving the ISA’s interim and final reports (which are not under appeal) [6], have not provided any rationale for why the moot appeal should be permitted to proceed or why their motion should not be dismissed.

[18] Canada submits that the moving parties’ appeal is moot. However, it argues that it would be useful for future proceedings between the parties if this court would determine whether the Independent Review Order is final or interlocutory. We disagree. We are not persuaded that the Independent Review Order is the type of order to arise again in proceedings between the parties.

[19] For these reasons the review motion is dismissed. Canada advised that it is not seeking costs of the motion, and no costs are awarded.

“K. van Rensburg J.A.”

“L.B. Roberts J.A.”

“E. Ria Tzimas, J. (ad hoc)”