ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 00-CV-192059
DATE: 20140912
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:
• Julian N. Falconer, Julian K. Roy, and Junaid K. Subhan for the Truth and Reconciliation Commission
• Peter R. Grant, Diane Soroka, and Sandra Staats for Independent Counsel
HEARING DATES: In writing
PERELL, J.
REASONS FOR DECISION - COSTS
[1] This is the costs decision with respect to my decision in two separate Requests for Direction (“RFD”) made pursuant to the Indian Residential School Settlement Agreement (“IRSSA”). The decision is reported as Fontaine v. Canada (Attorney General), 2014 ONSC 4585.
[2] Under the 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 Indian Residential Schools. Under the IRSSA, the parties also agreed to establish a Truth and Reconciliation Commission (“TRC”) to create a historical record of the residential school system and ensure its legacy is preserved and made accessible to the public for future study and use.
[3] The Chief Adjudicator of the IAP and the TRC each brought a RFD about what is to happen to documents produced and prepared for the IAP (“IAP Documents”). The IAP Documents contain narratives about what happened at the schools. The Chief Adjudicator sought an order that the IAP Documents be destroyed. In the other RFD, although it was not its initial request, the TRC sought an order that the IAP Documents be archived at Library and Archives Canada (“LAC”).
[4] The Chief Adjudicator and the TRC both sought a direction that a notice program be developed to inform Claimants that some of their IAP Documents, particularly redacted memorialization transcripts of the IAP hearing, may be archived at the National Research Centre for Truth and Reconciliation (“NCTR”), if the Claimant consents.
[5] The Sisters of St. Joseph of Sault Ste. Marie (the “Sisters of St. Joseph”) brought a motion to quash the RFDs. I dismissed the motion to quash.
[6] The Assembly of First Nations (“AFN”), Twenty-Four Catholic entities (the “Twenty-Four Catholic Entities”), Nine Catholic Entities (the “Nine Catholic Entities”), the Sisters of St. Joseph, and “Independent Counsel,” lawyers who acted for IAP Claimants, supported a court order for the destruction of the IAP Documents.
[7] The Government of Canada (“Canada”) opposed the destruction of the IAP Documents, and its plan was to have Aboriginal Affairs and Northern Development Canada (“AANDC”), a government department, retain the documents for a retention period and then after the retention period, AANDC would transfer to LAC those IAP Documents identified as having “historical or archival value.” Canada supported the idea that a notice program be developed to inform Claimants that their IAP Documents may be archived at the NCTR if the Claimant consents.
[8] After a three day hearing and reserving judgment, I granted the Chief Adjudicator’s request that the IAP Documents be destroyed - eventually. I made in rem - against the world - the following Order that provided for a period when Claimants could consent to the archival of their IAP Documents at the NCTR.
It is ordered that: (a) with the redaction of personal information about alleged perpetrators or affected parties and with the consent of the Claimant, his or her IAP Application Form, hearing transcript, hearing audio recording, and adjudicator’s decision may be archived at the NCTR; (b) Canada shall retain all IAP Documents for 15 years after the completion of the IAP hearings; (c) after the retention period, Canada shall destroy all IAP Documents; (d) any other person or entity in possession of IAP Documents shall destroy them after the completion of the IAP hearings.
[9] I directed that if the parties could not agree about the matter of costs, then they could make submissions in writing within 20 days of the release of the Reasons for Decision followed by a right of reply within a further 20 days.
[10] Independent Counsel made a request that the TRC pay it costs on a full indemnification basis totalling $117,403.82, inclusive of fees, disbursements, and, I assume, any applicable taxes. In the alternative, Independent Counsel asked for a substantial indemnity of 65% of the full indemnity in the amount of $76,312.48.
[11] The TRC did not seek costs and it submitted that there should be no order as to costs.
[12] For the reasons that follow, I award Independent Counsel partial indemnity costs of $35,000, all inclusive of counsel fee, disbursements, and applicable taxes payable by the TRC.
[13] I can begin my explanation by noting that the TRC did not dispute my jurisdiction under the IRSSA to award costs against it. Rather, it submitted that there were reasons not to exercise that discretion. Its main points were first that it was reasonable and necessary and helpful to the parties and in the public interest for the TRC to bring a RFD about what should be done with the IAP Documents, and in these circumstances, making no costs award was appropriate. Second, the TRC submitted that there was divided success on the RFDs and it was successful in resisting the motion to quash and it was successful in preventing an immediate destruction of the IAP Documents.
[14] I agree with these submissions to the extent that in the absence of some other relevant factor, it would be appropriate in the circumstances of this case to make no order as to costs. The TRC’s actions were motivated and perhaps even mandated by its important role under the IRSSA. The TRC is not a party to the IRSSA, and, rather, it is a non-party participant created by the IRSSA, but, unfortunately, the parties and the TRC and the other non-party participants in the IRSSA could not come to an agreement about the important matter of the IAP Documents. In these circumstances, there is some attraction to making no order as to costs.
[15] There, however, are two additional factors in the circumstances of the two RFDs that have convinced me that I should exercise my discretion to award Independent Counsel costs of $35,000, all inclusive of fee, disbursements, and taxes, on a partial indemnity basis payable by the TRC.
[16] The first factor is that, practically speaking, Independent Counsel played the role of an amicus curiae and spoke up for the IAP Claimants. I found the affidavit evidence and the argument provided by Independent Counsel to be very helpful. I also appreciated that Independent Counsel’s involvement was largely if not totally altruistic. Second, since in bringing its RFD, the TRC was actually carrying out its mandate under the IRSSA, it strikes me as fair that it should have anticipated that it would have to bear the legal costs associated with carrying out that mandate, including in this case (but not necessarily all cases), the partial indemnity costs of those who might oppose the RFD.
[17] In the immediate case, there were serious disputed legal issues that were not likely to be resolved short of litigation and in these circumstances it would be part of the TRC’s role to litigate with possible costs consequences.
[18] I see no justification in the circumstances of these particular RFDs to award costs on a substantial or full indemnity basis.
[19] I also note, in any event, that my review of the bill of costs and supporting documents indicates that Independent Counsel’s full indemnity costs were $99,758.85 plus disbursements of $6,171.80 and not $117,403.82, all inclusive.
[20] My review indicates that the documented partial indemnity costs were $72,297.88, which I regard as beyond the reasonable expectations of the TRC, which could not reasonably have anticipated that three senior lawyers would appear gowned for the hearing of the RFDs. I also note that a significant amount of hearing time was involved in the motion to quash, and on this issue, Independent Counsel did not support the position of The Sisters of St. Joseph who were seeking to have the RFDs quashed. Independent Counsel wished that the RFDs be answered not quashed.
[21] Put shortly, having reviewed the dockets, having considered the usual factors associated with a partial indemnity scale award, and with my knowledge of the contribution of the parties to the RFDs, I think the reasonable and fair award is $35,000, all inclusive of counsel fee, disbursements, and applicable taxes.
[22] Order accordingly.
Perell, J.
Released: September 12, 2014
COURT FILE NO.: 00-CV-192059
DATE: 20140912
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 - COSTS
Perell, J.
Released: September 12, 2014