ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 00-CV-129059

DATE: 20140624

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 ATHBASCA, 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 WESTMINISTER, 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’ASSOMPTION 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 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 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 ARCHIÉPISCOPALE 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, OMI LACOMBE CANADA INC. and MT. ANGEL ABBEY INC.

Defendants

Proceeding under the Class Proceedings Act, 1992

COUNSEL:

• Joanna Birenbaum, for the University of Manitoba/National Research Centre
• Julian Roy, for the Truth and Reconciliation Commission
• Rod Donlevy and Janine Harding, for the Group of Catholic Organizations
• Albertos Polizogopoulos, for the Sisters of St. Joseph of Sault Ste. Marie

HEARING DATE: June 19, 2014

PERELL, J.

REASONS FOR DECISION

[1] The University of Manitoba, which is the host of the National Research Centre (“NRC”), established pursuant to the Indian Residential School Settlement Agreement (the “IRSSA”), brought a motion for leave to intervene as an added party to two Requests for Direction (“RFD”).

[2] I granted the motion with reasons to follow. My endorsement stated:

There are two pending Requests for Direction. The National Research Centre requests intervenor status as a party to the RFDs. Having read the motion material and heard from the parties appearing today, I am granting intervenor status as a party pursuant to my authority to do so under the Rules of Practice, the Class Proceedings Act and pursuant to the Indian Residential Schools Settlement Agreement and associated court orders. I am satisfied that the test for intervention has been met for written reasons to follow. The National Research Centre is granted full party standing and may respond to the motion to quash the pending RFDs. I am scheduling a telephone hearing for 12:00 noon Wednesday June 25, 2014 for any requests to adjourn the RFDs.

[3] What follows are my reasons.

[4] Under the IRSSA, an Independent Assessment Process (“IAP”) was established for the resolution of claims of sexual abuse, serious physical abuse, and other wrongful acts suffered at Indian Residential Schools.

[5] From September 19, 2007 until March 31, 2013, the IAP received 37,716 applications. Out of these, 20,413 have been resolved, and 17,303 remain in progress. To date, a total of approximately $2 billion in compensation has been paid out, including awards, legal fees, and disbursements.

[6] The Chief Adjudicator of the Indian Residential Schools Independent Assessment Process and the Truth and Reconciliation Commission (the “TRC”) have each brought RFDs about what is to happen to the IAP records after the IAP is done.

[7] The University of Manitoba, which is the host of the NRC, established pursuant to the IRSSA, brings a motion for leave to intervene as an added party to the RFDs. The NRC is mandated to steward the historical record of the Indian Residential school system that is being assembled by the TRC.

[8] Unless the court gives direction that the IAP records should be destroyed, which is one possible outcome of the RFDs, the NRC might be given the assignment of being the repository and archivist for the IAP records.

[9] The NRC seeks to intervene and be added as a party to the RFDs. It submits that it has an interest and that it may be adversely affected by the outcome of the RFDs. It submits that only it is able to fully and properly adduce evidence and make arguments with respect to the privacy laws, structures, policies and processes to protect the IAP records if archived with it. It submits that its participation will not prejudice any of the parties to the RFD and that its participation would be of assistance to the court.

[10] The NRC states that if granted leave to intervene, it would adduce evidence to show: (a) that its mandate, structure, and priorities would offer the best and most appropriate archive for the IAP records, consistent with the terms, spirit and intent of the IRSSA and with national and internationally accepted Indigenous and human rights archiving practices; and (b) how it will protect the privacy and confidentiality of the IAP records.

[11] The TRC consents to the motion that the NRC be granted intervenor status. The Assembly of First Nations, the Government of Canada, and Independent Counsel do not oppose. The Chief Adjudicator takes no position.

[12] The Sisters of St. Joseph of Sault Ste. Marie, which is a party to the IRSSA, opposes the motion.

[13] The motion is opposed by a group of 24 Catholic organizations, which are also parties to the IRSSA; namely: Les Oeuvres Oblates de l'Ontario, Les Residences Oblates du Quebec, Soeurs Grises de Montreal/Grey Nuns of Montreal, Sisters of Charity (Grey Nuns) of Alberta, Les Soeurs de LaCharite des T.N.O., Hotel­Dieu de Nicolet, The Grey Nuns of Manitoba Inc.- Les Soeurs Grises du Manitoba Inc., The Sisters of Saint Ann, Sisters of Instruction of the Child Jesus, The Sisters of Charity of Providence of Western Canada, Immaculate Heart Community of Los Angeles CA, Missionary Oblates-Grandin Province, Les Oblates de Marie Immaculee du Manitoba, Oblates of Mary Immaculate-St. Peter's Province, Order of the Oblates of Mary Immaculate in the Province of British Columbia, La Corporation Episcopale Catholique Romaine de Grouard, Roman Catholic Episcopal Corporation of Keewatin, The Catholic Episcopale Corporation of Mackenzie, Roman Catholic Episcopal Corporation of Prince Rupert, Sisters of Charity Halifax, The Roman Catholic Bishop of Kamloops Corporation Sole, Roman Catholic Episcopal Corporation of Halifax, Sisters of Presentation, and Roman Catholic Archiepiscopal Corporation of Winnipeg.

[14] The motion is also opposed by a second group of 9 Catholic organizations, which are also parties to the IRSSA; namely: Les Soeurs de Notre-Dame Auxiliatrice, Les Sœurs de Saint-François d’Assise, L’institut des Sœurs du Bon-Conseil/Les Sœurs de Notre-Dame du Bon-Conseil de Chicoutimi, Les Sœurs de Saint-Joseph de Saint-Hyacinthe, Les Sœurs de Jésus-Marie, Les Sœurs de l’Assomption de la Sainte-Vierge, Les Sœurs de l’Assomption de la Saint-Vierge de l’Alberta, Les Sœurs Missionnaires du Christ-Roi, and Les Sœurs de la Charité de Saint-Hyacinthe.

[15] By way of a preliminary objection raised at the hearing of this motion, the group of 24 Catholic organizations submits that after the Order of Justice Winkler approved the IRSSA, this court became functus and does not have the jurisdiction to grant intervenor standing to the NRC.

[16] The group of 24 Catholic organizations submits that the NRC does not meet the criteria for intervening as an “added party” as stipulated by Rule 13 of the Rules of Civil Procedure. The group submits, in effect, that the NRC is a self-interested or too-interested participant because it clearly supports the idea that it should become the repository and archivist of the IAP records. The group of 24 Catholic entities submits that it is inappropriate for the NRC, as a non­party to the IRSSA, to take any position on the RFDs, other than a neutral, objective participant making submissions to the court.

[17] In the alternative, the Group submits that if the NRC is to participate in the RFDs, then it should do so more properly as a "friend" of the court pursuant to rule 13.02 and that its role would be limited to providing information to the court on its proposed structures, protocols and procedures to fulfill its mandate in relation to the documents it receives. The Group submits that as a friend of the court, the NRC should not take a position on the merits of the RFDs. In paragraph 15 of its factum, the Group states:

15. The [24] Entities respectfully submit that the NRC, as a friend of the court, should not be taking a position on the merits of the Chief Adjudicator RFD or the Commission RFD. The NRC's job will be to house and administer the documents that the parties agreed, through the Settlement Agreement, would be contained in the archive. The NRC is overstepping its mandate by purporting to express an opinion on what documents the parties agreed would go into the archive. This is a question for the court to answer based on the submissions of the parties to the Settlement Agreement. Furthermore, it would be neither useful nor unique submissions for the NRC to endorse the Commission's interpretation of the Settlement Agreement as to what documents should go into the archive.

[18] The Sisters of St. Joseph of Sault Ste. Marie adopts the position of the Group of Catholic organizations. I was advised at the hearing that the second group of 9 Catholic organizations also adopts the position of the Group of Catholic organizations.

[19] The Sisters of St. Joseph of Sault Ste. Marie adds that if the NRC is granted leave to intervene, since they will be bringing a preliminary motion to quash the RFDs on the grounds that both the Chief Adjudicator and the TRC do not have standing to bring the RFDs, the materials and submissions of the NRC should not be considered in determining the motion to quash and the NRC should not be entitled to make any oral submissions on the motion to quash.

[20] Rules 13.01 and 13.02 of the Rules of Civil Procedure state:

RULE 13 INTERVENTION

LEAVE TO INTERVENE AS ADDED PARTY

13.01 (1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,

(a) an interest in the subject matter of the proceeding;

(b) that the person may be adversely affected by a judgment in the proceeding; or

(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding.

(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just.

LEAVE TO INTERVENE AS FRIEND OF THE COURT

13.02 Any person may, with leave of a judge or at the invitation of the presiding judge or master, and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument.

[21] To be granted intervenor status, the onus is on the proposed intervenors to demonstrate that the court’s ability to determine the issues before it would be enhanced by the intervention.[^1] Proposed intervenors must be able to offer something more than the repetition of another’s evidence and argument or a slightly different emphasis on arguments raised by the parties.[^2]

[22] To have an interest in the subject matter of the proceeding includes a public interest to the extent that the interest goes beyond that of the public generally.[^3]

[23] In considering whether to grant the right to intervene and the extent of the intervention, the court will consider: (1) the nature of the case; (2) the issues that arise; (3) whether the issues are essentially private or whether they involve a public interest component; (4) the likelihood of the applicant making a useful contribution to the resolution of the issues; and (5) whether the applicant’s participation would be unfair to the immediate parties.[^4]

[24] In addition to the court’s jurisdiction to add intervenors as parties or as friends of the court, the court has the jurisdiction to do so from two other sources. First, the IRSSA is a settlement in a class action, and the Court has broad powers pursuant to s. 12 of the Class Proceedings Act[^5] to make any order it considers necessary to ensure the fair and expeditious determination of the class proceeding on such terms as the Court considers appropriate.[^6] Second, the IRSSA authorizes the Court to issue such orders as are necessary to implement and enforce the provisions of the Agreement.[^7]

[25] In my opinion, the NRC satisfies the criteria for being added as a party to the RFDs and that it would assist the court in having its evidence and argument. In this regard, it is worth noting that the court in providing directions pursuant to an RFD is not just exercising its adjudicative function, but it is also exercising its administrative authority to supervise a class action settlement.

[26] While not a party to the IRSSA, the NRC is already a participant in the administration of the RFDs, and it has an interest that may be affected positively or negatively by the outcome of the RFDs. Depending on the outcome of the RFDs, which remains to be seen, responsibilities, and obligations may be imposed on the NRC.

[27] It should be obvious from the above that I disagree with the submission that this court is functus to make an order adding the NRC as a party participant to the RFDs. The administration of the IRSSA is an ongoing responsibility of the courts across this country and its administrative jurisdiction is never functus.

[28] Between December 2006 and January 2007, each of nine courts, representing Class Members from across Canada issued judgments certifying the class actions and approving the terms of settlement as being fair, reasonable, and in the best interests of the Class Members. Justice Winkler, as he then was, certified the action in Ontario in reasons reported as Baxter v. Canada (Attorney General).[^8]

[29] In March 2007, on consent of the parties, the nine courts issued identical Approval Orders and Implementation Orders. Both the judgments of the courts and the Approval Orders provide that that the respective courts shall supervise the implementation of the IRSSA and the judgment and may issue such orders as are necessary to implement and enforce the provisions of the Agreement and the judgment. For present purposes, the following term of the Implementation Order should be noted:

23. THIS COURT ORDERS that the Courts shall supervise the implementation of the Agreement and this order and, without limiting the generality of the foregoing, may issue such further and ancillary orders, from time to time, as are necessary to implement and enforce the provisions of the Agreement, the judgment dated December 15, 2006 and this order.

[30] Under the IRSSA, the judges of the nine courts that approved the settlement are designated as “Supervising Judges”. Two of the Supervising Judges are the “Administrative Judges.” The Administrative Judges receive and evaluate RFDs in relation to the administration of the IRSSA. The Administrative Judges decide whether a hearing is necessary, and if so, in which jurisdiction, in accordance with guidelines set out in the Court Administration Protocol.

[31] The court has at least three sources of jurisdiction over the performance of the IRSSA that inform the RFD process. First, there is the court’s jurisdiction over the administration of a class action settlement. Second, there is the court’s plenary jurisdiction from s. 12 of the Class Proceedings Act, 1992; S.O. 1992, c. 6. Third, there is the court’s jurisdiction derived from the IRSSA, which includes its jurisdiction to interpret and enforce contracts and its own orders, including its approval and implementation orders of the IRSSA.

[32] The court has an ongoing obligation to oversee the implementation of the settlement and to ensure that the interests of the class members are protected. Where there are vulnerable claimants, the court's supervisory jurisdiction will permit the court to fashion such terms as are necessary to protect the interests of that group: Fontaine v. Attorney General (Canada).[^9] In Baxter v. Canada (Attorney General), supra, Justice Winkler stated at para. 12:

12. …. The court has an obligation under the Class Proceedings Act ("CPA") to protect the interests of the absent class members, both in determining whether the settlement meets the test for approval and in ensuring that the administration and implementation of the settlement are done in a manner that delivers the promised benefits to the class members. In seeking the approval of the court, the plaintiffs and defendants essentially seek the benefits of having the court sanction the settlement. Such approval cannot be divorced from the obligation it entails. Once the court is engaged, it cannot abdicate its responsibilities under the CPA.

[33] The pending RFDs very much concern the interests of the class members and very much concern the objects and purposes of the administration of the IRSSA.

[34] The supervisory jurisdiction of the court is to be exercised to ensure that claimants obtain the intended benefits of the IRSSA and to ensure that the integrity of the implementation and administration of the agreement and related processes are maintained.[^10] In Fontaine v. Canada (Attorney General),[^11] Justice Veale stated that any deficiencies in the administration of the IAP can be remedied under the court’s supervisory jurisdiction. The court’s supervisory jurisdiction over class action settlements includes the jurisdiction to remedy any mechanical or administrative problems with the settlement.[^12]

[35] The court has administrative jurisdiction over a class action settlement independent of any conferral of jurisdiction by the settlement agreement.[^13] Under the IRSSA, the parties agreed to involve the court in the administration of the settlement, but in any event, the court retains jurisdiction over the implementation of a settlement it has approved.[^14]

[36] Granting the NRC status as a party does not mean that the court necessarily agrees with the position that the NRC will take on the RFDs, which position appears to be against the position of the Sisters and the two Groups of Catholic organizations. It only provides the NRC to advance its position in circumstances where the outcome of the RFDs may affect how the NRC carries out its role in the IRSSA.

[37] For the above reasons, I granted the NRC full standing as a party to the RFDs.

Perell, J.

Released: June 24, 2014

[^1]: Ontario (Attorney General) v. Dieleman, (1993) 1993 5478 (ON SC); M. v. H. (1994), 1994 7324 (ON SC).
[^2]: Jones v. Tsige (2011), 2011 99894 (ON CA); Stadium Corp. of Ontario Ltd. v. Toronto (City) (1992), 1992 7475 (ON SCDC).
[^3]: Halpern v. Toronto (City) Clerk (2000), 2000 29029 (ON SCDC); Gould Outdoor Advertising v. London (City) (1997), 1997 12101 (ON SC).
[^4]: Authorson (Litigation Guardian of) v. Canada (Attorney General), 2001 4382 (ON CA); Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 1990 6886 (ON CA).
[^5]: S.O. 1992, c. 6.
[^6]: Fontaine v. Canada (Attorney General), 2014 ONSC 238.
[^7]: Fontaine v. Canada, supra.
[^8]: (2006), 2006 41673 (ON SC).
[^9]: 2012 BCSC 839.
[^10]: 2012 BCSC 1671.
[^11]: 2006 YKSC 63.
[^12]: Bodnar v. Cash Store Inc., 2011 BCSC 667.
[^13]: Fantl v. Transamerica Life Canada, 2009 ONCA 377.
[^14]: Kelman v. Goodyear Tire and Rubber Co. (2005), 2005 803 (ON SC).