ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 00-CV-129059
DATE: 20140702
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
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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:
• Fay Brunning, for the Applicants
• Catherine A. Coughlan, for the Attorney General of Canada
• Tina Hobday, for the Chief Adjudicator Independent Assessment Process
• Edmund Metatawabin, for Peetabeckkewaykeywaywin Association
• Judith Parker, for the Attorney General of Ontario
HEARING DATE: June 10, 2014
PERELL, J.
REASONS FOR DECISION
A. INTRODUCTION
[1] The Independent Assessment Process (“IAP”) was constituted by the terms of the Indian Residential Schools Settlement Agreement (“IRSSA”) to provide compensation for victims of abuse at the residential schools through an inquisitorial adjudicative process. The IAP is administered by the Indian Residential Schools Adjudication Secretariat (“Secretariat”) under the supervision of the Chief Adjudicator.
[2] Several Applicants who are Claimants in the IAP bring a Request for Directions (“RFD”) under the IRSSA.
[3] The Applicants seek an order that the Attorney General of Ontario disclose to Canada and to the Chief Adjudicator the expert witness reports that were prepared by Dr. Kain and Dr. Jaffe for criminal proceedings against Anna Wesley, who had been a supervisor at St. Anne’s Indian Residential School in Fort Albany, Ontario (“St. Anne’s”). They also seek an order that the Reports be produced to the Truth and Reconciliation Commission.
[4] The Applicants also seek an order directing the Chief Adjudicator to provide a copy of the Reports plus the transcripts of the criminal trial in R. v. Anna Wesley to every IAP claimant who pleads or has pleaded that he or she was forced to eat their own vomit.
[5] The Applicants seek orders with respect to the use of the Kain and Jaffe Reports and the use of the R. v. Wesley transcripts at IAP hearings.
[6] For the reasons set out below, the Applicants’ RFD is dismissed.
B. THE APPLICANTS’ REQUEST FOR DIRECTIONS
[7] In Fontaine v. Canada (Attorney General), 2014 ONSC 283, my Reasons for Decision for a related RFD, I explain some of the heartbreaking history of what happened to the Applicants when they were students at St. Anne’s. I also explain the background to the IRSSA and to the IAP.
[8] I will not repeat that history and background here, save to note that it forms a fundamental part of the context for the RFD now before the Court. Also part of the context is the formal Order dated January 14, 2014 taken out after my Reasons for Decision were released.
[9] The thrust of my Order of January 14, 2014 was that the OPP produce documents with respect to its investigation of certain matters that led to criminal charges about events at St. Anne’s. The documents were to be produced to Canada and to the Commission in accordance with the IRSSA.
[10] The process envisioned by my Order of January 14, 2014 is underway, but it seems that the Applicants are apprehensive that the outcome will not lead to the production into the IAP of the Kain and Jaffe Reports. The Applicants seek production of the Reports and the transcripts for themselves and others, including others whose IAP hearings have been either been completed or are in progress. Some of those others have their own legal counsel and some are self-represented. The Applicants also seek some direction about the use of the Reports and the R. v. Wesley transcripts in the IAP.
[11] Canada is prepared to receive the Reports into the IAP in accordance with the process set out in the IRSSA, but Canada states that the additional distribution requested by the Applicants for themselves and others goes beyond the terms of the IRSSA.
[12] The Chief Adjudicator and the Secretariat oppose the Applicants’ request and the Chief Adjudicator seeks to protect the adjudicative autonomy of the adjudicators.
[13] I will not repeat my lengthy legal analysis from my January 2014 Reasons for Decision, save to say that the analysis establishes that this Court cannot order (as requested by the Applicants in their RFD) that the expert witness reports that were prepared by Dr. Kain and Dr. Jaffe for criminal proceedings against Anna Wesley be disclosed to the Secretariat and the Chief Adjudicator, and the Court certainly cannot order how the Reports and the R. v. Wesley transcripts be used at the IAP hearings.
[14] I will repeat from paragraph 79 of my January Reasons for Decision that the IRSSA does not preclude a Claimant from producing documents in support of his or her claim beyond those articulated as mandatory in the application process. The relevance and admissibility of documents is determined by the adjudicator on a case-by-case basis.
[15] Under the IRSSA, the adjudicators are – as their name suggests – exercising a judicial function in accordance with the terms of the IRSSA. It is for them, on a case by case basis and not the Court, to make evidentiary rulings. As already ordered in the January 14, 2014 Order:
THIS COURT ORDERS THAT the adjudicators of the IAP have the exclusive jurisdiction with respect to the admission of and use to be made of evidence for the IAP;
[16] It is also important to note that the admissibility of medical reports is regulated by the IRSSA and the Court cannot amend the IRSSA under the guise of administering the class action settlement.
[17] It is not for this Court to determine the relevance of any of the material produced by the Applicants or by Canada for the purposes of the IAP or to rule how that material may be used by the Adjudicators.
[18] For the above reasons, I dismiss the Applicants’ RFD.
C. COSTS AND OTHER REQUESTS
[19] Before concluding these Reasons for Decision, it is necessary to deal with four other requests or matters and also the matter of costs.
[20] First, I note here that Mr. Edmund Metatawabin of the Peetabeckkewaykeywaywin Association appeared at the hearing of the Applicants’ RFD. As I explained to him at the hearing, the very important matters and serious concerns that he raised about the IRSSA and the IAP were matters outside of the questions to be addressed on this particular RFD.
[21] Some of Mr. Metatawabin’s concerns may be addressed at other pending RFDs, and other of his concerns should, at least, in the first instance, be raised with other bodies in the complex organization and administration of the IRSSA before becoming the subject matter of an RFD.
[22] In any event, the issues of this particular RFD are quite narrow, and it remains for another day for the Court to address the serious matters raised by Mr. Metatawabin.
[23] Second, largely because this RFD covered the same issues that had been the subject matter of my January 14, 2014 Order, the Chief Adjudicator invited the Court to direct that future requests from the Applicants and their counsel for procedural or evidentiary orders require leave of the Court as a pre-condition.
[24] I decline this invitation which would only be appropriate if it were established that the Applicants were vexatious litigants or perpetrating an abuse of process. I make no such finding.
[25] Third, and this is my observation and not a request made by the parties, it is apparent that some participants in the IAP are mistakenly of the view that there is to be absolutely no adversarial or competitive component to the IAP. Because of this mistaken view, there is considerable resentment and distrust and enmity when either party puts up any resistance to the position of the other party.
[26] The parties, however, should understand that while other parts of the IRSSA are designed to further reconciliation, and while the IAP is designed to be an inquisitorial, claimant-centred procedure and not an adversarial one, the parties remain adverse and opponents.
[27] As I explained in my January 2014 Reasons for Decision, the IAP is litigious in nature. The opponents in that litigation are expected to cooperate in advancing the process and are entitled to be treated with respect, but neither party is precluded from contesting and challenging the position of the other.
[28] The IAP is not about building friendship and loyalty. It is about paying compensation to Claimants that prove their claims. The ultimate purpose of the IRSSA is truth and reconciliation, but the purpose of the IAP is to adjudicate compensation and it is not about putting a price on anything else. The Claimants are entitled to make a claim for compensation for the harms they prove they suffered. Canada is entitled to put the Claimants to their proof.
[29] Fourth, and again this is an observation and not a request by the parties, but it is important to keep in mind that the IAP is part of a settlement, and like all civil settlements the IRSSA will fall short of providing perfect justice. I say “civil” settlement because the IRSSA is not about criminal justice with its concerns about punishment and retribution. The IAP is part of a class action settlement, and the RFD process cannot be used to have the Court change the civil settlement.
[30] As I explained to Mr. Metatawabin at the hearing of this RFD, the Courts across the country wish to hear from the parties and the Courts will do what they can to ensure that the IRSSA is properly administered so that the Claimants receive the benefits of the IRSSA.
[31] However, a Court’s jurisdiction in this and in all things is a bounded jurisdiction and one of the boundaries is the parties’ agreement, which was reached by them before it was scrutinized by the Court as part of the approval process, which also does not empower the Court to change their agreement.
[32] Fifth and finally, there is the matter of costs. My view is that there should be no order as to costs because no particular purpose would be served by making a costs order for this particular RFD other than honouring the general principle that the successful party should be indemnified for the expense of having to litigate.
[33] I, however, regard this particular RFD as corollary or a follow up to the prior RFD, and while the Applicants should not receive any more costs, I would not award costs against them for the follow up, which I hope will clear up any uncertainties associated with the prior RFD.
[34] With respect to costs, I also note that although I invited Mr. Metatawabin to make a request for reimbursement for the expenses of his travel costs because of the valuable contribution he made to the hearing of this RFD as a voice for other Claimants, he graciously declined to make such a request.
Perell, J.
Released: July 2, 2014
COURT FILE NO.: 00-CV-129059
DATE: 20140702
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LARRY PHILIP FONTAINE in his personal capacity and in his capacity as the Executor of the estate of Agnes Mary Fontaine, deceased, et al.
Plaintiffs
‑ and ‑
THE ATTORNEY GENERAL OF CANADA, et al.
Defendants
REASONS FOR DECISION
Perell, J.
Released: July 2, 2014