Fontaine v. Canada (Attorney General), 2015 ONSC 1435
COURT FILE NO.: 00-CV-192059
DATE: 20150304
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, 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:
• Fay Brunning for the Applicants
• Tina Hobday and Daniel Baum for the Chief Adjudicator of the Indian Residential Schools Adjudication Secretariat (Canada)
HEARING DATES: Written submissions
PERELL, J.
REASONS FOR DECISION
A. INTRODUCTION
[1] These reasons address a request by certain claimants (the “Applicants”) in the Independent Assessment Process (“IAP”) under the Indian Residential Schools Settlement Agreement (“IRSSA”) for an order that the Executive Director of the Indian Residential Schools Adjudication Secretariat (“Secretariat”) attend to be examined under oath. The request arises in the context of a Request for Directions (“RFD”) by the Applicants relating to their IAP claims.
[2] For the reasons that follow, I dismiss the request to examine the Executive Director. The Applicants have not established that the evidence they seek from the Executive Director would be relevant to the issues on the RFD.
B. BACKGROUND
[3] The history and infrastructure of the IRSSA, including the IAP procedure and the role of the Secretariat, as well as the court’s role in the administration of the IRSSA, is canvassed in detail in previous decisions of this court, including Fontaine v. Canada (Attorney General), 2014 ONSC 283, and Fontaine v. Canada (Attorney General), 2014 ONSC 4585, and need not be repeated here.
[4] The Applicants are nine former students of Bishop Horden Hall, an Indian Residential School (“IRS”), who have made claims for compensation under the IAP. They have filed an RFD in relation to their claims. In the RFD, they request directions related to disclosure by the defendants the Attorney General of Canada (“Canada”) and the General Synod of the Anglican Church of Canada (the “Church”), both generally and with respect to Bishop Horden. They also request that the court make a direction to the Secretariat, of general application, to take certain steps with the goal of putting IAP claimants in touch with each other, in cases where one has pleaded that he or she witnessed the abuse of the other.
[5] The background to the RFD is as follows. Under the IRSSA, Canada’s obligations include the preparation of reports about Persons of Interest (“POI”) as well as histories about IRSs, known as narratives, for use in the IAP. In the context of the adjudication of IAP claim Q-10111, Canada disclosed in a POI report that a teacher, who was at Bishop Horden in the 1960s, was later criminally convicted for abuse of students at a different IRS. From the perspective of the Applicants, this information called into question the accuracy of the Bishop Horden narrative, which states: “To date, we are unaware of any convictions for abuse at Moose Fort IRS [aka Bishop Horden] or of any convicted abusers present at the school.”
[6] Meanwhile, in IAP claim S-11816, the claimant, who is one of the Applicants, has pleaded that she witnessed the severe beating of a child and that numerous employees/supervisors of Bishop Horden were fired and/or criminally charged. The Bishop Horden narrative does not make reference to these facts.
[7] Beginning in August 2014, again in the context of claim S-11816, Applicants’ counsel asked Canada if there was any further documentary disclosure forthcoming about Bishop Horden, and in particular about the termination of supervisors and about criminal charges and convictions.
[8] Applicants’ counsel referred to the court’s January 14, 2014 decision (Fontaine v. Canada (Attorney General), 2014 ONSC 283) in which I concluded that Canada had not adequately complied with its disclosure obligations with respect to the narrative and POI reports for another IRS, St. Anne’s Indian Residential School (“St. Anne’s”), based on a misinterpretation of the IRSSA. Paragraph 6 of the court’s order in the St. Anne’s RFD required Canada to produce for the IAP, by June 30, 2014, certain Ontario Provincial Police (“OPP”) documents and transcripts of proceedings in respect of physical abuse at St. Anne’s and, under item (c), “any other relevant and non-privileged documents in the possession of Canada to comply with the proper reading and interpretation of Canada’s disclosure obligations under Appendix VIII”.
[9] In response to Applicants’ counsel’s communications, Canada has not produced any new disclosure about termination of staff and/or criminal convictions of staff at Bishop Horden, but Canada has indicated that the Bishop Horden narrative has been updated and now has an addendum. The addendum includes information about the convictions of the former Bishop Horden employee who was the subject of the POI report disclosed in IAP claim Q-10111.
[10] In addition to contacting Canada, Applicants’ counsel wrote Shelley Trevethan, the Executive Director of the Secretariat, and suggested that the Secretariat take steps to ensure that disclosure by the defendants is complete.
[11] Among the suggestions by Applicants’ counsel were that the Secretariat require affidavits of documents for each school from each defendant. In support of its position that the Secretariat had an obligation to take such steps, Applicants’ counsel relied on Appendix IV of Schedule D to the IRSSA, which provides, at para. iv: “No date shall be set until the IAP Secretariat is satisfied that exchange of documents, including treatment notes and clinical records is as complete as reasonably necessary […]”.
[12] Applicants’ counsel also raised with Ms. Trevethan the fact that the Secretariat was not giving IAP claimants the names of people who were witnesses of the claimants’ abuse. Counsel suggested that the Secretariat should connect IAP claimants with people who had indicated that they witnessed the IAP claimants’ abuse, either in the context of their own IAP claim, or in a signed statement to the OPP. She also suggested that the Secretariat take other specified steps in respect of people who gave statements to the OPP.
[13] Ms. Trevethan replied. She advised that it is the responsibility of claimants’ counsel and the defendants to provide relevant documents for the claim, but that it was not the role of the Secretariat to conduct reviews on behalf of claimants, nor to contact persons mentioned in the documents.
[14] In a separate exchange, Applicants’ counsel asked Ms. Trevethan for unredacted copies of certain criminal proceeding documents provided by the Secretariat, and Ms. Trevethan replied that the Secretariat did not have unredacted versions of the documents.
[15] Later, in respect of a particular IAP hearing, Applicants’ counsel again requested that the Secretariat take steps to address alleged deficiencies in the defendants’ disclosure, and the Secretariat again declined, on the basis that the Secretariat is akin to a registry, and does not engage with the substantive elements of a file.
[16] In November 2014, the Applicants filed the RFD. In it, the relief requested is as follows:
• A Direction to the defendants that the scope of remedial disclosure requirements in paragraph 6(c) of the Order of Mr. Justice Perell dated January 14, 2014 for the IAP process, is not limited to St. Anne's IRS; if the defendants have additional documentary disclosure to file with the Secretariat and/or if the AG of Canada has more documents to include in narratives and/or POI reports for any other IRS in Canada, that additional disclosure is required immediately and on a continuing basis. Documents in the possession of the lawyer of each defendant, that are not privileged, are deemed to be in the possession of that lawyer's client for the purpose of required disclosure under Appendix IV of Schedule D of the IRSSA, consistent with Rule 30 of the Ontario Rules of Civil Procedure.
• A Direction for the AG of Canada and/or the Anglican Church of Canada to immediately disclose any documents pertaining to the termination of employment and/or criminal charges against adult persons who were persons in authority and/or authorized to be at Bishop Horden IRS for abuse or alleged abuse of IRS children therein during the 1960's; if further documents are filed with the Secretariat under Appendix IV, a Direction that the Attorney General of Canada shall amend the narrative and POI reports forthwith for Bishop Horden IRS;
• A Direction to the Secretariat that if one IAP claimant (student #1) pleads he/she saw another student (student #2) being abused as an aggravating factor, and if student #2 is also an IAP claimant, the Secretariat shall communicate with student #1 in writing to ask if the contact details for student #1 can be given to student #2, for the purpose of student #1 offering to testify at the IAP hearing of student #2; student #2 shall still determine whether or not to call student #1 at the IAP hearing of student #2.
[17] In response to the RFD, Canada, the Church and the Assembly of First Nations (“AFN”) have filed affidavits.[^1] The evidence of both Canada and the Church in response to the RFD is that they have examined relevant records and have nothing further to provide.
[18] The AFN’s evidence consists mainly of background about the IRSSA and the IAP process, and about the AFN’s role.
[19] There is a timetable in place for the conduct of examinations and the exchange of facta, but examinations have not yet occurred. The RFD is scheduled to be heard on May 20, 2015.
C. THE APPLICANTS’ REQUEST TO EXAMINE THE EXECUTIVE DIRECTOR
[20] For the purposes of the RFD, the Applicants request an order that:
the Executive Director of the Secretariat attend to be examined under oath as to the processes by which the Secretariat checks compliance for filing of the mandatory documents of the defendants, in comparison to claimants, and in relation to the rights of victims and witnesses to the same possible compensable incidents, to be notified of each other by the Secretariat.
[21] The Chief Adjudicator, under whose direction the Secretariat implements and administers the IAP, opposes the request.
[22] Canada, the Church, and the AFN have not filed submissions in respect of this request.
1. The Applicants’ Position
[23] The first part of the Applicants’ request, that is, to examine the Executive Director “as to the processes by which the Secretariat checks compliance for filing of the mandatory documents of the defendants”, is premised on their position that the Secretariat is under an obligation to do so. The basis for that position is as follows.
[24] According to the Applicants, the Secretariat is not merely a registry. The Applicants observe firstly that pursuant to Schedule D to the IRSSA, the Secretariat is responsible to receive and review every application filed, to determine if each IAP claim falls within the IAP process. The Secretariat has a process for reviewing IAP applications and the power to summarily dismiss an IAP application.
[25] As noted above, the Applicants also rely on the provision in Appendix IV to Schedule D requiring the Secretariat to be “satisfied” there has been exchange of documents, as complete as reasonably necessary, between the parties prior to each IAP hearing date being set.
[26] The Applicants accept that the Secretariat does not decide relevance or use of documents at the IAP hearing, but take the position that the Secretariat “must simply ensure proper searches and disclosures by the departments of the federal government and compliance with the IAP filings”.
[27] The Applicants note that Secretariat staff check the mandatory document filings by claimants. The Applicants also point out other perceived imbalances in the Secretariat’s approach to claimants and defendants. They note that the Secretariat appears to accept redacted documents from the defendants “without having first obtained a master copy against which to check for possible over-redaction,” whereas claimants cannot file redacted documents; the IAP application form requires each claimant to confirm the truth of the contents of the application form and to agree to comply with the requirements of the IAP process; and claimants must provide proof of having requested documents from certain third parties, while there is no such proof required from the defendants. The Applicants raise the spectre of institutional bias on the part of the Secretariat, whose staff are “under the employment control of the Defendant”.
[28] As for the second part of the Applicants’ request, that is, to examine the Executive Director “in relation to the rights of victims and witnesses to the same possible compensable incidents, to be notified of each other by the Secretariat,” it is premised on the following.
[29] There are cases where an IAP claimant witnessed the abuse of another student, and includes this information in their own IAP application, under “Aggravating Factors”. When such cases proceed, both the Secretariat and the defendants are aware of both the witness and the alleged abuse victim. However, the witness is often not aware of whether the alleged abuse victim has filed his or her own IAP claim, and the alleged victim is not advised by the Secretariat about the existence of a possible witness.
[30] In the submission of the Applicants, the decision as to whether to give witness information to the victim belongs to the former students and not to the Secretariat or the defendants. The Applicants submit that defence counsel cannot withhold the identity of a material witness, and that signed witness statements can lead Canada to short form decisions without hearing the testimony of the witness.
[31] Although the Applicants’ submissions set out these premises in some detail, they do not go on to clearly articulate what their objective is in examining the Executive Director on these issues for the purposes of the RFD, other than to say that they “would like to ensure the facts about Appendix IV and the operations/options of the Secretariat since the IRSSA was signed, are obtained under oath and available to the Court for consideration about the ongoing updating and monitoring of IRS narratives and POI reports as being compliant.”
2. The Chief Adjudicator’s Position
[32] The Chief Adjudicator opposes the request, on the ground that it is nothing more than a fishing expedition that will not elicit any relevant or material evidence whatsoever in support of the RFD as against the Secretariat. Moreover, the Chief Adjudicator submits that the proposed examination is an abuse of process in and of itself, as are the underlying conclusions sought against the Secretariat in the RFD, which have no chance of success on the merits.
[33] The Chief Adjudicator starts from the proposition that the IRSSA and the Class Proceedings Act, 1992 (“CPA”) are both silent on the post-settlement examination of non-parties to the IRSSA, and, therefore, the Applicants’ request is appropriately assessed under the framework of the Ontario Rules of Civil Procedure, subject to the Court’s discretion, set out in s. 12 of the CPA, to “limit, vary or alter” their operation.
[34] In particular, the Chief Adjudicator analogizes the Applicants’ request to a request to examine a witness under rule 39.03. The Chief Adjudicator notes that the right to examine under 39.03 is not absolute and has been circumscribed by the courts. The Chief Adjudicator submits that the onus is on the party seeking to examine to prove that the evidence is relevant to the underlying proceeding and that the proposed witness is in a position to offer the evidence sought. The Chief Adjudicator’s position is that the Applicants have not met this onus.
[35] In the Chief Adjudicator’s view, the Applicants “are inappropriately seeking to embroil the Chief Adjudicator and the Secretariat in what is at its foundation a dispute between them and Canada (and to a lesser extent the Anglican Church)”. The Chief Adjudicator submits that the RFD does not raise any genuinely contested facts vis-à-vis the Chief Adjudicator or Secretariat, and that the Applicants “are not contesting the facts, but rather the IAP system itself.”
[36] In the alternative, the Chief Adjudicator says that the proposed examination is an abuse of process, because it constitutes an unwarranted and inappropriate foray into the administrative inner workings of the Chief Adjudicator, who is an officer of the court. The Chief Adjudicator submits that to the extent that he and the Secretariat are extensions of the court’s supervisory role under the IRSSA, their internal processes or deliberations should be immune from compelled examination, based on either the doctrine of judicial immunity or the doctrine of deliberative secrecy.
[37] Finally, the Chief Adjudicator challenges the merits of the underlying RFD, submitting that it has no reasonable chance of success insofar as it is aimed at requiring the Secretariat to “analyze the IAP applications and materials in order to search out potential witnesses and then provide their contact information to the Claimant” and to “police Canada and the Anglican Church to ensure that they have fulfilled their disclosure obligations”.
[38] The Chief Adjudicator’s position is that the IRSSA does not provide the Chief Adjudicator and/or the Secretariat with the “witness-matching” and “policing-of-Canada” powers being suggested by the Applicants. The Chief Adjudicator and the Secretariat are not “in the document-vetting business” and the RFD invites the court to grant the Secretariat new powers, thereby amending the substantive terms of the RFD without the agreement of the parties. Further, the “witness-matching” requirement would violate the confidentiality provisions of the IRSSA. All of this is to say that the underlying RFD, as against the Secretariat, is an abuse of process, and there is no basis for examining Ms. Trevethan in support of it.
3. The Applicants’ Position in Reply
[39] The Applicants’ reply submissions were received a day later than the timetable for this request contemplated, but will nevertheless be mentioned here.
[40] The Applicants say that it is not accurate to suggest that the request to examine the Executive Director encroaches upon the judicial immunity of the Chief Adjudicator. The Applicants say that the Secretariat operations and powers are not within the exclusive powers of the Chief Adjudicator under the terms of the IRSSA; the Secretariat operations are also subject to review by the Oversight Committee, the National Administration Committee (“NAC”) or the Court, and the Chief Adjudicator is mandated to take forward issues or proposals to the Oversight Committee, which can in turn make recommendations to the NAC, which can in turn make changes to the IAP process.
[41] In the Applicants’ eyes, it is unfair and patronizing for the Secretariat to believe it is beyond questioning by former IRS students. The Applicants ask: “How can it be abuse of process for a former IRS student to question the operations of a tribunal set up to administer this class action settlement?” Former students, the Applicants say, should be able, on reasonable grounds, to question the persons in authority, such as the Executive Director of the Secretariat, “to find out the facts and to ensure that the powers granted under the IRSSA are being applied fairly and neutrally, including against the federal government.”
[42] The Applicants repeat their submission that ensuring compliance with documentary disclosure obligations is important, and that the Secretariat’s “passive processes” are inadequate to ensure proper disclosure, and should be remedied now. The Applicants also dispute that what they propose in terms of witness notification would constitute a breach of confidentiality.
4. Analysis
[43] To determine this request, I shall not engage in an analysis of the merits of the underlying RFD, or determine whether it is an abuse of process. I also shall not opine about the question of whether the Executive Director enjoys a form of immunity from testifying in the circumstances. Rather, this request can be disposed of on the basis that the Applicants have not met their onus of demonstrating the relevance of any evidence that might be obtained from the Executive Director to any of the issues on the underlying RFD.
[44] It is appropriate to apply the same test here that applies in civil proceedings, where a summons to a witness on a motion or application is challenged. As I have previously noted, the IAP is part of a settlement agreement in a class action, and s. 35 of the CPA provides that the rules of court, i.e. the Rules of Civil Procedure apply to class proceedings, although the court has a discretion to limit, vary or alter the operation of them: Fontaine v. Canada (Attorney General), 2014 ONSC 283 at para. 201.
[45] Rule 39.03 of the Rules of Civil Procedure provides, in part, as follows:
EVIDENCE BY EXAMINATION OF A WITNESS
Before the Hearing
39.03 (1) Subject to subrule 39.02 (2), a person may be examined as a witness before the hearing of a pending motion or application for the purpose of having a transcript of his or her evidence available for use at the hearing.
(2) A witness examined under subrule (1) may be cross-examined by the examining party and any other party and may then be re-examined by the examining party on matters raised by other parties, and the re-examination may take the form of cross-examination.
[46] As the Chief Adjudicator has pointed out, the right to examine a witness under Rule 39.03 is not unlimited and has been circumscribed by the courts. In particular, where a party moves to challenge a summons to examine a witness under Rule 39.03, the party seeking to examine bears the onus to prove that the evidence is relevant to the underlying proceeding and that the proposed witness is in a position to offer the evidence sought: PowerServe Inc. v. Ontario College of Trades, 2015 ONSC 857 at para. 15; Konstan v. Berkovits, 2013 ONSC 6169 at para. 20.
[47] The first direction sought by the Applicants in the RFD, set out above, requires an interpretation of the scope of the defendants’ disclosure obligations in the IAP process. The interpretation of contracts is a determination of mixed fact and law: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, and the determination of this first direction involves a factual matrix that does not depend upon the extent to which, if at all, the Secretariat checks compliance of the defendants’ disclosure obligations.
[48] The Applicants have not explained how evidence of “the processes by which the Secretariat checks compliance for filing of the mandatory documents of the defendants, in comparison to claimants” could assist in the interpretation of the scope of the defendants’ disclosure obligations, and, perhaps more to the point, this evidence would not assist the court in making its decision.
[49] Put somewhat differently, the issues to be determined on the RFD can be decided without knowing the extent to which, if at all, the Secretariat checks compliance with the defendants’ disclosure obligations, the full extent of which remains to be determined by the RFD.
[50] The issues raised by the RFD are largely normative not evidentiary or descriptive because the essential issues raised by the RFD are about what the defendants ought to be disclosing and not about what the Secretariat is doing to check disclosure compliance. The essence of the RFD is about determining the extent of the defendants’ disclosure obligations and whether the defendants have made adequate disclosure, which is a factual issue that does not implicate the Secretariat, and it is all of a distraction, premature, and irrelevant to examine what the Secretariat does to ensure compliance.
[51] The second direction sought by the Applicants in the RFD would see the court order Canada and the Church to make disclosure relating to staff of Bishop Horden, and to amend the narrative and POI reports for Bishop Horden accordingly.
[52] This second direction, again, will require a determination of the extent of the defendants’ disclosure obligations. And, once again, the Applicants have not established how evidence regarding “the processes by which the Secretariat checks compliance for filing of the mandatory documents of the defendants, in comparison to claimants” would assist the court in determining this issue.
[53] Further, an examination of the Executive Director is unnecessary and redundant. The record before the court on the RFD will include evidence from the defendants about the extent of disclosure, and the Applicants are free to challenge that evidence through cross-examination of the defendants’ affiants.
[54] The only direction sought by the Applicants in the RFD that actually relates to the Secretariat is the final one. That direction would see the court order the Secretariat to take steps to provide contact information for witnesses of abuse, with the consent of those witnesses, to the victims of the abuse.
[55] Whether the Secretariat has this obligation is an issue to be determined. That issue, once again, is a matter of interpreting the IRSSA, which is an issue of mixed fact and law where the factual nexus does not depend upon how in fact the Secretariat processes applications or the disclosure process, and it certainly does not depend on the subjective views of the Executive Director about what was intended by the IRSSA.
[56] The Applicants have not explained why a factual record including evidence from the Executive Director is necessary. It is common ground that the Secretariat does not currently take steps to connect witnesses with claimants. The Applicants have not established how evidence from the Executive Director “in relation to the rights of victims and witnesses to the same possible compensable incidents, to be notified of each other by the Secretariat” would assist the court in determining this issue.
[57] The Applicants have not discharged their onus to establish that the evidence sought from the Executive Director would be relevant to the issues on the RFD.
D. CONCLUSION
[58] For these reasons, I dismiss the Applicants’ request to examine the Executive Director for the purpose of the RFD.
[59] Neither party sought costs of this request in their submissions. If the Chief Adjudicator is inclined to seek costs, and the parties to this request cannot agree with respect to costs, the Chief Adjudicator may make submissions in writing within 20 days of the release of these Reasons for Decision, followed by submissions from the Applicants within 20 days thereafter.
Perell, J.
Released: March 4, 2015
COURT FILE NO.: 00-CV-192059
DATE: 20150304
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: March 4, 2015
[^1]: After the exchange of submissions on this request to examine, the Church filed a supplementary affidavit on the RFD to clarify two items in its original affidavit. The clarifications do not affect my decision.