Fontaine et al. v. The Attorney General of Canada et al.
[Indexed as: Fontaine v. Canada (Attorney General)]
Ontario Reports
Ontario Superior Court of Justice,
Perell J.
August 6, 2014
122 O.R. (3d) 1 | 2014 ONSC 4585
Case Summary
Civil procedure — Class proceedings — Settlement — Administration — Chief adjudicator of Independent Assessment Process ("IAP") under Indian Residential Schools Settlement Agreement and Truth and Reconciliation Commission ("TRC") bringing requests for directions about fate of documents produced and prepared for IAP which contained narratives about what happened at residential schools — TRC and chief adjudicator having standing — Requests not premature — Court having jurisdiction to hear requests and to direct how IAP documents were to be retained, archived or destroyed — IAP documents confidential and subject to implied undertaking — Court ordering that documents be destroyed after retention period of 15 years and that claimants be notified of their right to choose to have redacted documents transferred to National Research Centre for Truth and Reconciliation.
Class actions by Aboriginals who attended Indian residential schools led to the Indian Residential Schools Settlement Agreement ("IRSSA"). The parties agreed to establish an Independent Assessment Process ("IAP") to pay claimants compensation for claims of sexual abuse, serious physical abuse and other wrongful acts suffered by them when they were students at residential schools. Claimants were required to disclose private and intimate personal information, and were assured that the personal information provided was confidential, although it could be provided to the authorities for certain purposes, such as criminal prosecutions and child welfare cases. The parties also agreed to establish a Truth and Reconciliation Commission ("TRC") to create a historical record of the residential school system. The chief adjudicator of the IAP and the TRC each brought a request for directions about what was to happen to documents produced and prepared for the IAP which contained narratives about what happened at the residential schools.
Held, the documents should be destroyed after a 15-year retention period.
The order approving the IRSSA provided that the parties, class counsel, certain named individuals and groups, and "such other . . . entity as this Court may allow" could apply for directions in respect of the implementation, administration or amendment of the IRSSA. The chief adjudicator and the TRC had standing to bring the requests as "such other . . . entity as this Court may allow" to apply for directions. The requests were not premature. The court had jurisdiction to hear the requests and to direct how the IAP documents were to be retained, archived or destroyed. The IAP documents were not court records or government records. [page2 ]The court's jurisdiction extended over Canada's possession of the IAP documents even if they were government records. The court could order the destruction of the documents for three reasons. First, as a matter of contractual interpretation, destruction was what the parties agreed to, and the court could enforce in rem the parties' bargain. Second, the IAP documents were subject to the implied undertaking. It would be a breach of the implied undertaking for Canada as a party to the IRSSA to provide the IAP documents to the TRC, the National Research Centre for Truth and Reconciliation ("NCTR"), or Library and Archives Canada. The court could enforce the implied undertaking by requiring the destruction of the documents. Third, the IAP documents were subject to the law governing a breach of confidence, and in the circumstances, the appropriate remedy to prevent a breach of confidence was to destroy the documents. The destruction order should be subject to a 15-year retention period, during which residential school survivors would be notified of their right to choose to transfer redacted documents to the NCTR instead of having them destroyed.
Cases referred to
Andersen Consulting v. Canada, https://www.canlii.org/en/ca/fct/doc/2001/2001canlii22032/2001canlii22032.html, [2001] F.C.J. No. 57, [2001] 2 F.C. 324, 199 F.T.R. 150, 9 C.P.C. (5th) 245, 102 A.C.W.S. (3d) 1052 (T.D.); Baxter v. Canada (Attorney General) (2006), https://www.canlii.org/en/on/onsc/doc/2006/2006canlii41673/2006canlii41673.html, 83 O.R. (3d) 481, [2006] O.J. No. 4968, 40 C.P.C. (6th) 129, 153 A.C.W.S. (3d) 1044 (S.C.J.); Canada (Information Commissioner) v. Canada (Minister of National Defence), [2011] 2 S.C.R. 306, [2011] S.C.J. No. 25, https://www.canlii.org/en/ca/scc/doc/2011/2011scc25/2011scc25.html, 416 N.R. 105, 2011EXP-1524, J.E. 2011-834, 331 D.L.R. (4th) 513, 201 A.C.W.S. (3d) 425; Canadian Imperial Bank of Commerce v. Canada (Canadian Human Rights Commission), [2007] F.C.J. No. 1113, https://www.canlii.org/en/ca/fca/doc/2007/2007fca272/2007fca272.html, 283 D.L.R. (4th) 513, 367 N.R. 307, 60 C.C.E.L. (3d) 178, [2008] 2 F.C.R. 509, 70 Admin. L.R. (4th) 62, 160 A.C.W.S. (3d) 202; Fontaine v. Canada (Attorney General) (2013), 114 O.R. (3d) 263, [2013] O.J. No. 406, https://www.canlii.org/en/on/onsc/doc/2013/2013onsc684/2013onsc684.html, [2013] 2 C.N.L.R. 172, 50 Admin. L.R. (5th) 283, 225 A.C.W.S. (3d) 962 (S.C.J.), consd
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